State of Punjab vs Joginder Singh

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 388 of 1962

Decision Date: 16 November 1962

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, K.N. Wanchoo, J.C. Shah, Subba Rao

In the matter of State of Punjab versus Joginder Singh, the Supreme Court of India delivered its judgment on 16 November 1962. The opinion was authored by Justice N. Rajagopala Ayyangar, who sat on the bench together with Justices Bhuvneshwar P. Sinha, K.N. Wanchoo and J.C. Shah. The petitioner was the State of Punjab and the respondent was Joginder Singh. The case is reported in 1963 AIR 913 and in the Supreme Court Reporter, Supplement (2) 169, and it has been cited in numerous subsequent decisions, including E 1972 SC 1982, R 1973 SC 1146, R 1980 SC 452, R 1981 SC 1829, E 1985 SC 621, RF 1985 SC 1124, RF 1987 SC 1527, RF 1988 SC 24, RF 1990 SC 334, and it concerns the constitutional provisions of Articles 14 and 16 of the Constitution of India.

The dispute arose from the classification of junior teachers in Punjab. Within the State cadre, fifteen percent of junior teachers were placed on the middle pay scale and the remaining eighty‑five percent on the lower pay scale. Effective from 1 October 1957, junior teachers employed by District Boards and Municipal Boards were converted into government employees and constituted what was termed a “Provincialised Cadre.” These teachers were similarly divided between the middle and lower scales in the same percentages and were given the same pay scales and allowances as their counterparts in the State cadre.

The Government decided to keep the two cadres separate and promulgated the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961. These rules, particularly Rules 2 and 3, prescribed the procedure for promotion from the lower to the middle grade within each cadre. The rules also provided that no further recruitment would be made to the Provincialised Cadre and that any vacancy arising therein would be transferred to the State cadre. Consequently, teachers recruited to the State cadre gradually acquired a greater likelihood of attaining the selection grade of that cadre than teachers belonging to the Provincialised Cadre.

The respondent, a lower‑scale teacher of the Provincialised Cadre, argued that all junior teachers had been fully integrated, that the 1961 Rules contravened Articles 14 and 16(1) of the Constitution by discriminating between the two cadres in respect of promotion opportunities, and that the State could not, consistent with Article 14, maintain two parallel services in which employees performed identical work but were subject to different service conditions.

The Court, speaking for a majority consisting of Justices Sinha C.J., Wanchoo and Ayyangar, held that the Rules did not infringe Article 14 or Article 16. The Court observed that the two services originated as independent entities and that the Government had never merged them into a single service. Because the cadres began differently and continued to operate differently, the dissimilar treatment did not amount to a denial of equal opportunity under the Constitution.

The Court observed that the treatment prescribed by the Rules did not constitute a denial of equal opportunity. It emphasized that the two distinct cadres existed independently of the Rules and that any claim of denial of equal opportunity could arise only between members of the same class. The Court further held that the Government was free to create two separate services of employees who performed the same work but were subject to different conditions of service. It rejected the assumption that equal work must inevitably receive equal pay, and also rejected the proposition that equality of pay and work automatically required equality of conditions of service. In support of this reasoning, the Court referred to the decision in Kishori Mohanlal v. Union, A.I.B. (1962) S.C. 1139.

In the separate opinion of Justices Subba Rao and Shah, it was held that the Rules were invalid to the extent that they provided for differential treatment between members of the State Cadre and the Provincialised Cadre with respect to promotion. Although there were two cadres, the Court observed that the differentiation was limited solely to future promotions and that there was no valid basis for classifying the members differently for the purpose of promotion. The Court noted that the Government had, in fact, given the same terms of employment to the two cadres and had effectively created a single grade of teachers. Consequently, discrimination between members of that grade on the basis merely of the source of recruitment was held to be a clear violation of Articles 16(1) and 16(2) of the Constitution. The judgment relied upon the authorities General Manager Southern Railway v. Rangachari, [1962] 2 S.C.R. 586; All India Station Masters’ and Assistant Station Masters’ Association v. General Manager, C.R., [1962] 2 S.C.R. 311; and Kishori Mohanlal Bakshi v. Union of India, A.I.R. (1962) S.C. 1139.

The matter before the Court was a civil appeal, numbered 388 of 1962, filed by special leave against the judgment and order dated 3 October 1961 of the Punjab High Court, Chandigarh, in Civil Writ Petition No. 1559 of 1960. The appeal was heard on 16 November 1962. Counsel for the appellant included the Solicitor General of India, the Additional Advocate‑General of Punjab, and two additional advocates, while counsel for the respondent comprised two advocates. The judgment of Justices Sinha, C.J., Wanchoo and Ayyangar was delivered by Justice Ayyangar, whereas the judgment of Justices Subba Rao and Shah was delivered by Justice Shah. The appeal challenged the High Court’s order, which had struck down rule 2(d), rule 2(e), and a portion of rule 3 of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961—hereinafter referred to as the impugned Rules—on the ground that those provisions violated the constitutional guarantees of equality enshrined in Articles 14 and 16(1). The Court proceeded to set out the relevant facts necessary to appreciate the manner in which the question was raised and to examine the constitutional issues involved.

In this appeal the Court considered the position of the respondent, who on 1 October 1957 was employed as a junior vernacular teacher in a District Board High School in Hoshiarpur. The matters in dispute depended on the exact modifications that had been made to the status and conditions of service of teachers such as the respondent, who were employed in District Board and Municipal Board schools. These modifications were introduced by a series of executive instructions issued by the Punjab Government in September 1957 and were specified to take effect from 1 October 1957. By reason of those instructions the teachers in the said schools became employees of the State. Before examining the substance of those changes, the Court found it necessary to set out the prevailing position and conditions of service for teachers who were already employed in State schools on that date.

On 1 October 1957 teachers who served the State were governed by rules that had been framed under article 309 of the Constitution and promulgated on 30 May 1957. The rules were titled “The Punjab Educational Service Class III School Cadre Rules, 1955”. The Court noted that it would refer to these rules in greater detail after presenting the factual background of the present appeal, but for the present purpose it was sufficient to record that the rules prescribed, among other matters, the qualifications required for appointment, the authority responsible for recruitment, the conditions of service and the manner in which seniority was to be determined among members of the service. The appendices to the rules set out the salary scales to which teachers belonging to the various grades defined in the rules were entitled.

The Court further explained that the salary scales of these State teachers had been revised after the Government accepted the recommendations of a committee on pay revision. In an order dated 23 July 1957 the Government divided the class of officers who were then referred to as “junior teachers” into three distinct grades: (a) head masters, (b) teachers placed in a middle scale, and (c) teachers placed in a lower scale. The order fixed the proportion of teachers to be assigned to each group. Because the number of head masters depended on the number of schools in which they could be posted, no exact figure could be stipulated for that category. For the remaining teachers in the junior teacher grade, the order provided that fifteen per cent of the total strength would be placed in the middle scale with a salary range of 120‑5‑175, a percentage that also included the head masters even though they received a higher scale. The remaining eighty‑five per cent were to be placed in the lower scale with a salary range of 60‑4‑80, ‑5‑100, ‑5‑120.

Finally, the order directed that the fifteen per cent of teachers assigned to the middle class should be promoted immediately on the basis of seniority and merit, while the rest of the teachers should remain on the lower scale. These provisions constituted the rules governing the category described as “junior teachers in the State Cadre” as they stood on 1 October 1957.

By an executive instruction dated 27 September 1957, to be effective from 1 October 1957, a communication from the Secretary of the State Education Department to the Director of Public Instruction altered the terms and conditions of service for teachers employed in District Board and Municipal Board schools. The executive action was later ratified by legislation enacted in 1959, which was given retrospective effect from 1 October 1957; however, the Court noted that the terms of that enactment were not material to the issues presently before it, and therefore no further reference to it was required. The decision of this appeal depended upon the proper construction and legal effect of the “provincialisation” effected by the executive direction, and the Court indicated that a detailed examination of its terms in the context of the circumstances then prevailing would be undertaken later. At the present stage, the Court observed that under the order, the schools previously administered by Municipal Boards and District Boards in the Ambala and Jullundur divisions were taken over by the Punjab Government’s Education Department with effect from 1 October 1957, and the teachers serving in those schools were likewise taken over and became State employees. The order stated that on that date there were twenty‑seven thousand‑nine hundred and nine junior teachers in the schools concerned. Applying to them the same fifteen‑percent to eighty‑five‑percent split that applied to junior teachers in the State cadre under the government order dated 23 July 1957, three thousand one hundred and eighty‑four teachers were placed in the higher grade entitled to higher emoluments, while seventeen thousand five hundred and twenty‑five were placed in the lower grade receiving the minimum junior‑teacher salary. The order further declared that junior teachers employed in local‑body schools being provincialised would receive the same grades of pay and other allowances as their counterparts in government employment. After 1 October 1957, the Government considered three questions: (1) whether the provincialised teachers should be kept in a cadre separate and distinct from the State‑cadre teachers or whether the two cadres should be merged; (2) if merged, how the inter‑seniority among them should be determined; and (3) if not merged, what relationship should exist between the teachers of the two cadres and related matters. The Government’s conclusions were communicated in a letter dated 27 January 1960 from the Secretary to the Government of Punjab to the Director of Public Instruction, Punjab. In brief, the decision was that the two cadres – the provincialised teachers and the State‑cadre teachers – would remain distinct, and principles were formulated for promotions from the lower to the middle grade within each cadre.

It was held that the teachers belonging to the State cadre and the teachers belonging to the provincialised cadre were to be maintained as separate entities, and that specific principles were laid down to determine how promotions from the lower grade to the middle grade would be effected in each cadre. The respondent challenged the validity of the terms of that decision before the appellate tribunal. The decision and the directions it contained had been applied to every employee of the schools that had been provincialised, and consequently the respondent filed a petition under Article 226 of the Constitution seeking to set aside the direction on several grounds. One of the grounds asserted was that the direction issued in the communication dated 27 January 1960 did not possess any statutory authority because it was not, and did not claim to be, a rule framed in accordance with Article 309 of the Constitution. In order to overcome this objection, the Government of Punjab issued the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961 on 13 February 1961. These rules satisfied the formal requirements of Article 309, but otherwise were identical in substance, operated in the same manner, and were effective from the same date as the impugned directions of January 1960. Accordingly, the petition before the High Court was transformed into a challenge to the constitutional validity of the February 1961 Rules rather than to the earlier government communication of January 1960. The arguments supporting the challenge to the validity of those rules were summarised as follows: when the District Board and Municipal Board schools were provincialised on and from 1 October 1957, all teachers who had been serving in those schools became employees of the State. At the moment they acquired that status, there already existed teachers in State‑run schools who were governed by the rules published in May 1957, with their pay scales and grades having been revised by the orders dated 23 July 1957. Whether the Government possessed the power to keep the provincialised teachers in a separate category was immaterial, because by the orders dated 27 September 1957 the Government had granted them the same grades, pay scales and other allowances that applied to teachers in the then existing State cadre. This grant necessarily implied a complete integration of the two cadres, resulting in a single class of teachers. The earlier employment of provincialised teachers in District Board or Municipal Board schools, as opposed to State schools, was therefore merely of historical interest and had no legal effect. Consequently, any subsequent governmental order that created a distinction between the provincialised teachers and the State cadre teachers to the disadvantage of the former would be discriminatory and void under Article 14 of the Constitution. Since, from 1 October 1957 onwards, all schools were operated by the State, every teacher employed in those schools, irrespective of their prior employment history, formed part of the same class.

The Court observed that, because all teachers performed identical duties, received identical salaries and were therefore subject to the same service conditions, they belonged to a single class of employees. On this basis the respondent argued that the rules being challenged discriminated against the “junior teachers” who were part of the provincialised cadre in two respects. First, the rules restricted their right or opportunity to obtain promotions and to advance to the middle pay scale. Second, the rules created a disparity in the provisions relating to pension. The respondent contended that the denial of promotional opportunities violated Article 16(1) of the Constitution, while the pension disparity amounted to an unreasonable classification that breached Article 14. The High Court judges accepted the respondent’s claim regarding promotions and held that the 1961 rules, insofar as they created two separate cadres within the same service and consequently produced unequal promotional opportunities, were void. In particular the Court struck down rule No 2, which defined the two cadres, and rule No 3, which prescribed the effect of the two cadres on promotion. However, the High Court rejected the respondent’s contention concerning pension, concluding that there was no violation of Article 14 in that respect. The State, dissatisfied with this judgment, obtained special leave to appeal. Before analysing the specific provisions of the impugned rule and their impact on the promotion rights of the respondent and other junior teachers of the provincialised service, the Court noted a preliminary objection raised to the hearing of the appeal. The respondent, Joginder Singh, was joined by three other petitioners who had filed similar writ petitions (Petitions 161, 162 and 163 of 1961). The latter petitioner, Amrik Singh, was a Head Master among the provincialised teachers. All four petitions were heard together and disposed of by a common judgment, whereby the relief granted to Joginder Singh in Writ Application 1559 of 1960 was also extended to the other three petitioners. The State chose not to appeal the orders in the three other petitions. Counsel for the respondent argued that, because the orders in those petitions had become final, any decree issued in the present appeal that differed from the relief already granted would result in inconsistent judgments on the same issue and therefore the appeal should be dismissed as incompetent. The Court, however, held that such an objection would not affect the legal effect of any order that might be passed in the present appeal and found no merit in the objection as a bar to hearing the appeal.

The Court observed that the objection asserting that an order issued in the present appeal would be barred from hearing had no merit, and therefore did not preclude the Court from entertaining the appeal. In the Court’s view, if the State Government’s present appeal were to succeed, the correct legal consequence would be that the judgments rendered by the Punjab High Court in the three earlier writ petitions would retain their final character. Consequently, the three petitioners who had obtained favourable relief in those cases would continue to enjoy the benefits granted to them, because no subsequent appeal would have been filed to challenge those decisions. This outcome, however, would not extend any advantage to the present respondent, who would remain bound by the judgment that the Court would now render in this appeal. Moreover, with respect to the general law applicable to all persons other than the three successful petitioners—who would retain the benefits of their final decisions—the law would be as determined by this Court. Accordingly, the Court dismissed the preliminary objection.

The Court then turned to the statutory provisions under dispute. The rules challenged by the petitioner are titled “Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961”. These rules were deemed to have been brought into operation retroactively from 1 October 1957, which is the date on which the provincialised cadre was created. Rule 2 of the rules sets out various definitions. The definitions that are material to the present controversy and that were struck down by the Punjab High Court in the judgment now before this Court are clauses (d) and (e). Clause (d) defines the term “Service” to mean “The Punjab Educational (Provincialised Cadre) Class III Service”, while clause (e) defines “State Cadre” to mean “The Punjab Educational (State Service) Class III (School Cadre)”.

Proceeding to Rule 3, which commences Part II headed “Conditions of Service”, the Court noted that this rule is the most pertinent to the questions raised in the appeal. Rule 3 deals with the number and character of posts and reads as follows: “(1) The service shall comprise the posts shown in Appendix ‘A’ but shall be a diminishing one. The number of posts in the various cadres of the Service shall be regulated in the following manner—”. Sub‑clause (i) provides that any posts created for a provincialised school after its takeover by the Government—whether because the school was upgraded, to relieve congestion, or for any other purpose—shall not form part of the Service; instead such posts shall be charged to the State Cadre or to any other Educational State Service that contains comparable posts at the time of their creation. Sub‑clause (ii)(a) states that all posts of Headmasters, as well as Masters or Teachers in the selection grades of the Service that were vacant on 1 October 1957, shall remain within the Service. However, an equal number of posts in the ordinary pay‑scales of the relevant cadres that become vacant as a result of promotions to the selection‑grade positions of Headmaster, Master or Teacher shall be transferred to the State Cadre. Sub‑clause (ii)(b) further provides that all such posts of Masters and Teachers in the ordinary pay‑scales…

In this matter the Court described the rule that any post of the Service which was vacant on 1 October 1957 was to be transferred to the State Cadre. The Court then turned to the adjustment of posts that became vacant after the provincialisation of local‑authority schools because of ordinary promotions, retirements or any other cause. It explained that such vacancies were to be dealt with according to a specific scheme. First, all vacant posts of Masters and of junior teachers in the Service were to be divided, by rotation, into blocks of seven posts and blocks of six posts. Within each block of seven, the first six vacancies that were in the selection grade were to remain on the Service, while an equal number of ordinary‑pay posts of Masters or junior teachers, together with any other ordinary‑pay vacancies in that block, were to be transferred to the State Cadre. In each block of six, the first five selection‑grade vacancies were to stay on the Service, and an equal number of ordinary‑pay posts, along with the remaining ordinary‑pay vacancies, were to be transferred to the State Cadre. The Court noted that the last vacancy in every block was to be transferred to the State Cadre. However, it added a proviso: if the last vacancy in a block was not a selection‑grade post, then another selection‑grade post from the same block had to be transferred instead. If such an adjustment could not be made within the same block, the transfer was to be effected in the next consecutive block, but never beyond that.

The Court then referenced several other rules that were relevant, namely Rules 4, 5, 8 and 9. Rule 4 dealt with liability to transfer, stating that members of the Service borne on a statewide cadre could be posted in any Government or provincialised school throughout the State, while those on a district‑wise cadre could be posted in any Government or provincialised school within that district. Rule 5 provided that members of the Service who had been confirmed before the provincialisation of local‑authority schools were to be deemed confirmed in the Service. Rule 8 set out the method of recruitment. Sub‑rule (1) of Rule 8 required that any selection‑grade posts left over after the transfers specified in Rule 3 be filled by promotion from a lower grade of the Cadre, on the condition that no member could be promoted to a selection‑grade post unless he possessed the qualifications and experience prescribed in Appendix B. The Court observed that Appendix B stipulated that, for junior teachers—the only category under consideration—qualification for appointment to the selection grade (pay scale Rs 120/175) did not require matriculation, which was the minimum qualification for the State Cadre. Instead, it sufficed that the teacher was “junior trained”, “junior basic trained”, or a “special certificate teacher” with at least five years of teaching experience, which made him eligible for the selection grade. Finally, the Court noted sub‑rule (2) of Rule 8, which mandated that all promotions, whether from one grade to another or from one class of service to another, were to be made on the basis of seniority‑cum‑merit.

The Court observed that promotion from one service to another must be based on seniority coupled with merit, and that a person could not claim promotion solely on seniority. Rule nine specifies the method for determining inter se seniority of service members as of 1 October 1957. The Court then summarized how those rules affected the class of teachers who had been provincialised. First, those teachers were placed in a cadre that was separate and distinct from the teachers who belonged to the State cadre governed by the rules issued on 30 May 1957. Second, although the ratio of teachers in the selection grade to the total strength – fifteen to eighty‑five – was the same in both cadres, the rule operated differently for members of the two services. This difference arose because the government had decided that the provincialised teachers would form a diminishing class that would eventually disappear, while an equivalent number of posts would be added to the State cadre to replace the loss. When the provincialisation of Local Board and Municipal Board teachers was carried out by the Government Order dated 27 September 1957, there were, as noted, 20,709 junior teachers. Applying the fifteen percent rule, 3,184 of those teachers were to be placed in the selection grade, which attracted a higher salary, and the remaining 17,525 teachers were to remain in the ordinary or lower scale. On the same date, 1 October 1957, the corresponding strength of the State cadre was 10,714 teachers, of whom fifteen percent would have been in the selection grade. Because the provincialised cadre was earmarked for extinction, no further recruitment was to be made to it; it was effectively closed at one end. All vacancies that arose in the provincialised cadre through retirement, death or other causes were to be filled by direct recruitment to the State cadre. Consequently, the number of posts in the selection grade within the State cadre – which was fifteen percent of the total strength – would naturally increase as the total strength of the State cadre grew, whereas the number of selection‑grade posts in the provincialised cadre would progressively decline. Since the two cadres were kept separate, this arrangement gave those recruited to the State cadre an increasing probability of attaining a selection‑grade position, while the chance for a member of the provincialised service to obtain a similar promotion was comparatively lower. Thus, a State‑cadre teacher who satisfied the minimum educational qualifications and the requisite period of service for selection‑grade appointment enjoyed a better prospect of promotion than a teacher belonging to the provincialised cadre. The Court noted, however, that the strict effect of this rule was moderated by the provision in Rule three that divided vacancies into blocks. Under that provision, roughly eleven thousand one hundred thirteen of the total vacancies in the selection grade were earmarked to be filled by provincialised teachers, thereby tempering the otherwise harsh disparity.

The Court observed that the only vacancies remaining after the allocation described earlier were left for teachers belonging to the State Cadre, and that this left a disparity in promotion opportunities between members of the State Cadre and teachers in the “provincialised” cadre. The High Court had held that this disparity amounted to discrimination and violated Articles 14 and 16(1) of the Constitution. The summary of the rules presented earlier showed that the disparity arose for two reasons. First, the impugned rule treated “provincialised” teachers as members of a cadre separate and distinct from the teachers in the State Cadre and it gave no provision for any inter‑seniority between the two groups. Second, the “provincialised” cadre was described as a diminishing cadre that would be extinguished over time, while the State Cadre was to be expanded and to become the sole cadre through which recruitment for vacancies could occur. The Court explained that it phrased the position in this way because, although counsel for the respondent based his argument for a violation of Articles 14 and 16(1) on the “division” of the two services into distinct cadres – a division that in law should not have existed – the “provincialised” teachers could not have complained if their cadre had not been made a vanishing one. The Court noted that if the two services had been kept distinct but each cadre’s vacancies were filled so as to replace the loss in strength of that particular cadre, there would have been no ground for a claim of discrimination. The principal basis of the High Court’s judgment, the Court said, was the order dated 27 September 1957, which came into force on 1 October 1957, by which teachers in the former District Board and Municipal Board schools were “provincialised” and made State employees, thereby effecting a complete integration of those teachers with the existing members of the State Educational Service governed by the rules of 30 May 1957. The Court held that unless this step of integration were established, there could be no basis for contending that the impugned rules, which presumed the “provincialised” teachers were not in the State Cadre, violated Article 14 or Article 16(1). Consequently, the first issue to be examined, the Court said, was whether the order of 27 September 1957 truly achieved complete integration between the two services. The Court stressed that this question must be answered not by hypothetical or theoretical speculation but by a careful examination of the terms of the 27 September 1957 order to determine whether such a result was intended or was actually brought about. The Court justified this approach in response to the argument advanced by counsel for the respondent, who submitted that there might have been differences in the qualifications of persons eligible for recruitment as teachers in the former board schools compared with those required for recruitment in the State Cadre.

In the present dispute, the respondent argued that once the process of provincialisation was completed, the teachers who had been employed in local‑body schools became directly employed by the State, and that the schools in which they had previously worked were taken over by the State. According to the order dated 27 September 1957, the pay‑scales of those teachers were made identical to the pay‑scales applicable to teachers already serving in the State cadre. The respondent further pointed out that, under the same order, the provincialised teachers could be transferred to any State school, while teachers belonging to the State cadre could likewise be transferred to work in the former Board schools. In other words, the parties claimed that there was complete interchangeability of posts between the two groups. The argument continued that, because the provincialised teachers performed the same duties, received the same remuneration and were freely liable to inter‑service transfer, nothing remained to be done to achieve full integration of the two services.

To reinforce this position, the respondent relied on a specific paragraph from the memorandum dated 27 September 1957, which stated: “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.” From this wording, the respondent urged that a complete integration of the two services was intended and was effected from 1 October 1957 onwards. In addition, a subsidiary argument was raised invoking Article 14 of the Constitution, contending that the State could not maintain two parallel streams of employees performing the same work while offering different emoluments or conditions of service. The respondent submitted that, if the claim of complete integration was rejected, the Article 14 argument would need to be examined later. The Court therefore turned to the primary contention that the Government order of 1 October 1957 had wholly merged the two services, but that the impugned rules subsequently recreated a division by establishing two distinct cadres without any intelligible basis for differentiation, thereby violating Article 14 and, by adversely affecting the promotion prospects of the provincialised teachers in comparison with State‑cadre teachers, also infringing Article 16(1). The Court found it impossible to accept the view that the September 27 1957 memorandum had integrated the provincialised teachers with those governed by the Punjab (Educational Service) Class III School Cadre Rules 1955. Moreover, it was conceded that the pension provisions applicable to State‑cadre employees did not extend to the provincialised teachers.

In this case, the Court observed that the pension rules applicable to the “provincialised” teachers were not the same as those governing teachers in the State cadre, because the Government issued separate pension rules for the “provincialised” teachers in October 1958 which differed from the pension rules that applied to State cadre teachers. The respondent had complained about this distinction in a petition before the High Court; the High Court rejected the complaint and no appeal was filed against that portion of the order. The Court further noted that the pension of State cadre teachers was determined by paragraph 11 of the Class III School Cadre Rules, 1955, and it was common ground that this provision did not regulate the conditions or quantum of pension for the “provincialised” teachers. Regarding seniority, the Court explained that inter‑se seniority among members of the State cadre service was fixed by rule 9 of the Rules, which provides that seniority among members holding the same class of posts and identical grades of pay shall be determined by the dates of their confirmations in those posts. The Court found it impossible to read rule 9 as governing inter‑se seniority between “provincialised” teachers and State cadre employees, because the crucial date for seniority under rule 9 is the date of confirmation, and the order dated 27 September 1957 could not, by any ordinary construction, be interpreted as confirming all “provincialised” teachers in the State cadre on 1 October 1957, the date on which they were said to have been taken into service. In normal practice, many teachers would have been serving in the former Board schools on probation and would not have been confirmed in their appointments on that October 1 date, making it untenable to treat all unconfirmed teachers as automatically confirmed for the purpose of determining seniority with State cadre members. The Court also considered the provision that accorded the “provincialised” teachers the same grades of pay and allowances as their counterparts already in government service, and observed that there was no specific clause or term in the government order that expressly indicated an intention to integrate the two services. On the contrary, the very specification that the grades of pay and allowances would be the same suggested an absence of integration intent, because if integration had been intended, the same pay and allowances would follow automatically without the need for a separate provision. Finally, the Court accepted the admitted fact that of the approximately twenty‑thousand teachers falling within this category, about twelve to thirteen thousand were unqualified in the sense that they had not passed the Matriculation examination, a circumstance that further undermined any inference that a complete integration had been intended or effected.

The Court observed that a large number of the teachers who had been provincialised had not passed the Matriculation examination. It noted that applying the State Cadre Rules, particularly the provisions concerning promotion to the selection grade, would have caused considerable hardship to these teachers. The Court said that this fact must be borne in mind before concluding that the legislature had intended a full integration of the provincialised teachers with the State cadre.

The Court further pointed out that for teachers already in the State cadre a minimum qualification of being a Matriculate and possessing five years of teaching experience was prescribed for appointment to the selection grade. In contrast, the impugned rules dispensed with the Matriculate requirement for members of the provincialised cadre. From this comparison, the Court inferred that the order dated 27 September 1957, which came into operation on 1 October 1957, merely made the teachers from the former Board schools employees of the government and placed them on the same scales and grades of pay as their counterparts in the State cadre. Apart from this equality of pay and grade, the Court found that the order contemplated nothing further.

The Court accepted the submissions made on behalf of the appellant that the precise status of the “provincialised” teachers and their relationship to the teachers in the State cadre had been the subject of governmental consideration, which resulted in the promulgation of the impugned rules. The Court referred to a document marked as Exhibit R‑1, a memorandum explaining those rules. In that memorandum the State Government stated that, following the provincialisation of local‑body schools, the staff working in such schools were taken over into Government service and it became necessary to determine their seniority in relation to the existing Government staff. The memorandum listed three alternatives that had been examined for integrating the two services: (a) a grouping formula that would count the full service of the local‑body teachers for the purpose of preparing a joint seniority list; (b) an integration of the two services into a joint cadre, counting the service of the local‑body teachers from the date of provincialisation on a grade‑to‑grade and cadre‑to‑cadre basis; and (c) keeping separate cadres for the provincialised staff and for the staff of the former Government schools. The Government concluded that the third alternative was the most suitable in the interests of a sound educational policy and also in the interests of the teachers themselves. Consequently, Rule 3 of the impugned rules was crafted to reconcile the conflicting and divergent interests of the two services, which the Government decided should remain separate.

The Court noted that, apart from questioning the validity of the impugned rules, it did not understand the respondent’s denial that the Government had considered the problem in the manner described between 1957 and January 1960. The Court stated that if, as it held, there was no integration—an integration that would have no meaning unless it were complete, for there is no such thing as partial integration—either expressly or by necessary implication, then it would follow that the impugned rules did not create the two distinct cadres; rather, those cadres existed independently of the rules, and the only charge that could be laid against the rules in this respect was that they failed to effect an integration. If, as we hold,. there was no integration (and integration has

In the judgment, the Court observed that if no integration—meaning no complete merging—had ever taken place, whether expressly or by necessary implication, then the impugned rules could not be said to have created the two separate cadres. Rather, the two cadres would have existed independently of those rules, and the only allegation that could be made against the rules would be that they had failed to bring about integration. The High Court had heard an argument that the mere existence of two services, which had almost identical grades, pay scales and other conditions of service, was illegal because it amounted to discrimination prohibited by Article 14. In the State’s counter‑affidavit to the respondent’s writ petition, it was pointed out that there were very wide differences in the qualifications possessed by members of the two services and a great disparity in the methods of recruitment. The Educational Service Class III Rules of 1955, together with the rules notified on 30 May 1957, prescribed minimum educational qualifications for teachers recruited to the State cadre, and these teachers were recruited after an interview conducted by the Public Service Commission. By contrast, teachers in the Board schools were recruited under conditions that varied greatly both in the minimum qualifications required and in the recruitment procedures. Because of these differences, the State asserted that the “provincialised” teachers and the State teachers could not be said to belong to the same class for which identical treatment would be required. The respondent and the other petitioners whose cases were disposed of together with his did not dispute these factual statements before the High Court. Consequently, counsel for the respondent specifically abandoned, before the High Court, any argument that the differentiation of the two services per se did not amount to discrimination within the meaning of Article 14. The reasons for abandoning the Article 14 argument therefore negated any submission that the recognition of the two services as independent cadres was itself discriminatory, once the contention that they had been integrated by the Government Order of 27 September 1959 was rejected.

The Court then turned to the submission that the State could not create two services comprising employees who performed the same work but were subject to different pay scales or conditions of service, because such a constitution would violate Article 14. Underlying this submission were two propositions: first, that equal work must receive equal pay; and second, that if there is equality in pay and work, the conditions of service must also be equal. The Court noted that the first proposition had already been definitively rejected in its earlier decision in Kishori Mohanlal v. Union of India, where the Court held that the abstract doctrine of equal pay for equal work did not fall within the ambit of Article 14. Regarding the second proposition, the Court found it unsound, observing that when an existing service is recruited on the basis of a particular qualification, the creation of another service on different qualifications does not, by itself, constitute a violation of Article 14. Accordingly, the Court concluded that without proof that the September 27 1957 order had effected a complete integration of the two services, there was no basis for a claim that the “provincialised” teachers and the State‑cadre teachers formed the same class for the purposes of an Article 14 challenge, even if they were treated differently.

In this case the Court considered two propositions that had been raised. The first proposition asserted that work of equal character must be compensated by equal pay and that any difference in pay for the same work would offend Article 14 of the Constitution. The Court noted that this proposition had already been rejected by its earlier decision in Kishori Mohanlal v. Union of India. Referring to the judgment of Das Gupta, J., the Court quoted the passage in which the judge observed that the contention of discrimination between Class 1 and Class 11 officers, on the ground that they performed the same kind of work but were placed on different pay scales, could not be sustained. The quotation explained that if the contention were valid, incremental pay scales based on length of service could not exist, and that the abstract doctrine of equal pay for equal work was unrelated to Article 14; consequently, the claim that Article 14 had been violated also failed.

The second proposition, which argued that equality of pay and work should necessarily entail equality of service conditions, was also rejected as unsound. The Court explained that the creation of a new service to perform the same work as an existing service, even if the new service offered better prospects for promotion, does not constitute a constitutional violation. The Court emphasized that the existence of rules allowing free transfers of personnel between the two groups does not alter this conclusion. It clarified that the reasoning was not based on any theory that a government servant who enters into a contract governing his service conditions loses the protection of constitutional guarantees. Rather, the conclusion rested on broader public considerations, namely that an administration must retain discretion in constituting services to staff the government and that constitutional limitations do not forbid the establishment of such services. The Court further observed that temporary recruitment may be necessary to meet exigencies or emergencies that are not expected to persist for a substantial period. Denying the government the authority to engage temporary staff who receive the same remuneration and perform the same duties as permanent incumbents, while being governed by different rules and conditions of service—including promotion provisions—would impose unwarranted restraints on administrative functioning, a result not intended by the Constitution. Although the issue was academic for the purposes of the appeal, the Court addressed it because of the arguments presented. In addition to the disparity in promotion opportunities between teachers of the provincialised and State cadres created by rule 3 of the impugned rules, the High Court had also identified a further disparity arising from the manner in which seniority and promotions were determined for the two groups.

In this matter the Court observed that the State Cadre was placed on a Divisional list, whereas the seniority and promotion of “provincialised” teachers were determined on a district basis. The Solicitor General for the appellant explained that the State Cadre was organised divisionally because the service comprised a very small number of members, and that it would be administratively inconvenient to apply a similar geographic classification to the provincialised service; consequently, district‑wise seniority, promotion and transfer rules were prescribed for those teachers. Counsel for the respondent did not adopt this line of reasoning advanced by the High Court judges, and therefore the Court found it unnecessary to refer to it further. The Court then noted that the two services had originally been created as independent entities: the qualifications required for entry, the method of recruitment and the administrative machinery for each were different, and, in general, the members of each class possessed differing qualifications. Because the government order dated 27 September 1957 did not merge the two services into a single entity, the Court held that they continued to exist as distinct services.

The Court explained that, if the services remained distinct, there could be no inter‑service seniority between their members, nor any basis for comparing promotion prospects across the two groups for the purpose of invoking Article 14 or Article 16(1) of the Constitution. The Court emphasized that the services commenced and continued with dissimilar structures, and that such dissimilarity did not constitute a denial of equal opportunity, since each group, taken separately, enjoyed the freedoms guaranteed by the constitutional provisions. Accordingly, the Court concluded that the High Court’s finding that the impugned rules had created two classes out of a single former class and thus introduced discrimination lacked factual foundation, given that the 1957 order had not effected complete integration. Consequently, the impugned rules could not be struck down as unconstitutional. The Court further observed that any prejudice suffered by the provincialised teachers arose not from the separate cadres but from the policy of gradually extinguishing the provincialised cadre. The essential question, therefore, was whether the government’s decision violated any fundamental right of the respondents to maintain their cadre strength unchanged. The Court answered in the negative, holding that no such fundamental right existed.

It was held that, because the grade in question designated fifteen percent of the total strength as predetermined, a progressive reduction in the number of selection posts was inevitable. In other words, any mere reduction of the cadre strength would inevitably lead to that result, and unless the respondent could demonstrate that the Government was legally bound to fill every vacancy in the provincialised cadre by fresh recruitment and thereby maintain its strength at the level existing on October 1 1957, the respondent’s claim would fail. The Court found such a contention to be manifestly untenable. The Court also observed that there could be no dispute that the impugned rules, which permitted vacancies in the selection grade of the State Cadre to be filled in part by teachers belonging to the provincialised service through the mechanism of the block system, substantially improved the position of those teachers. The memorandum accompanying the impugned rules, Ex R 1, asserted that the system had been framed to improve the conditions of the provincialised teachers, and the Court considered that assertion to possess some justification. Accordingly, the Court allowed the appeal and set aside the order of the High Court that had struck down rule 2(d) and 2(e) and rule 3 insofar as it related to promotions. In view of the peculiar circumstances of the case, the Court decided that no order as to costs should be made against either party.

Shah, J. noted that the appeal concerned the validity of Punjab Government Notification No 12832‑ED59/2935 dated January 27 1960 and of the Rules framed under Article 309 of the Constitution by the Governor of Punjab on February 13 1961, to the extent that they prescribed a scheme for the promotion of provincialised junior teachers to the selection grade. The Court explained that on the re‑organisation of the State of Punjab on November 1 1956, the Patiala and East Punjab States Union, which had been a Part B State, was merged with Punjab, but for administrative purposes relating to education the area continued to be treated as a separate division, and the teachers serving there were placed in a distinct cadre. The Court clarified that the present appeal did not address the rights or obligations of those teachers. The Court then turned to the scheme of revision of scales of pay of low‑paid public servants issued by the Punjab Government on July 23 1957. By paragraph 3, which applied to employees in the Education Department, the scheme directed that all teachers be classified, according to their qualifications, into two broad categories—Category A and Category B. Teachers in Category B were further divided into three classes: a Lower class with a pay scale of Rs 60‑4‑80/5‑100/5‑120, a Middle class with a pay scale of Rs 120‑5‑175, and an Upper class with a pay scale of Rs 140‑10‑250. The scheme further provided, with a view to providing incentives, that posts falling in these groups should be allocated as follows: Group I‑Lower scale should comprise eighty‑five percent of the posts, and the Middle scale should comprise fifteen percent. Fifteen percent of the teachers in this group were to be promoted immediately to the middle scale by selection, based on seniority and merit, while the remainder were to be given the

In this appeal the Court did not consider the matters relating to Group II and Group III. Prior to 1 October 1957, the State of Punjab – except for the territory of the Patiala and East Punjab States Union, which had merged with the State on the re‑organisation of the States on 1 November 1956 – maintained two categories of schools. One category comprised schools administered by District and Municipal Boards, and the other comprised schools that were directly maintained by the State. On 27 September 1957 the Government of Punjab issued a notification announcing the provincialisation of all District Board and Municipal Board schools with effect from 1 October 1957, thereby assuming management of those schools. Paragraph 2 of the accompanying scheme specified the number of schools to be taken over and the posts to be created for teaching and other staff in the various grades. Of the teachers who were to be provincialised, 3 016 – comprising junior vocational school teachers, junior teaching staff and junior basic faculty, among others – were to be placed in the pay grade of Rs 120‑5‑175, while 17 123 were to be placed in the lower pay grade of Rs 60‑4‑80/5‑100/5‑120. The notification further declared that all incumbents of the local‑body schools being provincialised as of 1 October 1957 would receive the same grades of pay and allowances as those already employed by the Government, that their salaries would be fixed under the applicable rules, and that there would be no reduction in their existing emoluments.

Subsequently the Government of Punjab constituted a Committee to frame rules for determining inter‑State seniority of the provincialised teachers and the teachers of State schools, as well as to address matters of pension and other related issues. By letters dated 27 January 1960, the Secretary of the Education Department informed the Director of Public Instructions that it had been decided, among other things, that the staff of the provincialised schools and the staff of the former Government schools would be maintained in separate cadres. All individuals who entered service after the date of provincialisation would be regarded as joining the cadre of the former Government schools. The provincialised staff cadre was to diminish continuously and eventually disappear, leaving only the Government staff cadre. This arrangement was intended to preserve the promotion opportunities previously available to the former Government school staff, while allowing the provincialised staff to benefit from promotions to the many new posts created as a result of provincialisation. The notification also stated that there would be no administrative difficulty in transferring teachers between the two cadres, regardless of whether the school was provincialised or a Government school, because the separation of cadres would apply only to future promotions. Finally, the two separate cadres were to be designated as the “State Cadre” and the “Provincialised Cadre”, and all vacancies arising from the normal course of retirements, promotions and similar events in the Provincialised Cadre would be transferred to the State Cadre.

The scheme provided that vacancies in the Provincialised Cadre would be transferred to the State Cadre. Within the State Cadre, the posts for Anglo‑Vernacular teachers were to be divided in the ratio of fifteen percent to eighty‑five percent, the former category being allotted the pay scale of Rs 250‑300 to Rs 250‑350 and the latter the scale of Rs 110‑250. For Vernacular staff the division was to be fifteen percent, thirty‑five percent and fifty percent, the respective pay scales being Rs 140‑220, Rs 120‑175 and Rs 60‑120. The number of positions that became vacant in the higher grades of the Provincialised Cadre because of retirements, promotions or similar causes, after deducting those positions that were created in the State Cadre, would be used to promote teachers who remained in the Provincialised Cadre from lower to higher grades.

Jogendra Singh, who was a junior Vernacular teacher appointed by the District Board, addressed a memorandum to the State Government contending that the division of junior Vernacular teachers into two categories was “unnatural”. He argued that this bifurcation placed teachers from the provincialised schools at a serious disadvantage and that the differential treatment was “wholly illegal, unreasonable and invalid” because it violated Article 14 of the Constitution. He further submitted that the scheme could not be introduced without the Governor of Punjab promulgating rules under Article 309 of the Constitution. After obtaining no relief, the respondent and others filed writ petitions under Article 226, identified as petitions Nos. 1559 of 1960 and 61, 162 and 163 of 1961, seeking to quash Punjab Government Notification No 12832‑ED‑II‑59/2935 dated 27 January 1963. Subsequent to the filing of those petitions, the Governor of Punjab issued rules on 13 February 1961 under Article 309, establishing a separate provincialised teachers’ cadre and prescribing conditions of service for teachers taken over from local authorities through provincialisation. At the same time, a policy statement was issued that explained the rationale for a distinct cadre and set out the promotion scheme. The statement recorded that three alternatives had been examined: grouping the two services, integrating them into a joint cadre, or keeping them separate. The Government decided on the following policy points: (i) staff of provincialised schools and staff of former Government schools would remain in separate cadres; (ii) all higher posts created on 1 October 1957 directly because of provincialisation would be filled by promotion from within the provincialised cadre; (iii) the provincialised cadre would be a diminishing cadre with all future recruitment to be made on the State Cadre; and (iv) vacancies arising from normal retirements, promotions or other causes in the provincialised cadre would be transferred to the State Cadre.

In relation to the Vernacular junior teachers, the judgment explained that there were two grades in that section and that the posts were allocated in a ratio of fifteen to eighty‑five percent. The first grade, identified as Rs 120/175, comprised fifteen percent of the posts, while the second grade, identified as Rs 60/120, comprised the remaining eighty‑five percent. The Court further noted that a teacher could be promoted from the second grade to the first only after acquiring at least five years of service. By reference to rule 2(d), the term “service” was defined to mean the Punjab Educational (Provincialised Cadre) Class III Service, and “State Cadre” was defined to mean the Punjab Educational State Service, Class III (School Cadre). Rule 3 provided that the Service would consist of the posts listed in the Appendix, that the Service would be a diminishing cadre, and that the number of posts in the various cadres of the Service would be regulated as set out therein. Sub‑rule 1(i) stipulated that any post created for a provincialised school after its takeover by the Government would not form part of the Service but would be borne on the State Cadre. Sub‑rule 1 clause (iii) provided that vacancies arising in the various cadres of the Service due to normal promotions, retirements, or any other cause after the date of provincialisation of local authority schools would be adjusted according to the detailed scheme. Sub‑rule 2 further provided that all posts in the Service would be borne on a State‑wide cadre except for posts of Vernacular and Classical Teachers, J A V, J S T Teachers and Junior Teachers, which would be borne on District‑wise cadres. After the Rules and the Policy Statement were promulgated, the Government of Punjab filed its written statement to the petitions and asserted, inter alia, that it retained authority to determine the service conditions of the provincialised staff even after provincialisation. The Government contended that the service rules, including seniority rules, did not automatically apply to the provincialised staff on 1 October 1957, and that because the provincialised staff formed a separate cadre for purposes of promotion, there was a reasonable classification and no discrimination between the State Cadre and the Provincialised Cadre. The High Court of Punjab rejected the State’s contention, holding that teachers of the provincialised cadre and those of the State cadre were “Government servants of the same class.” The Court observed that the provincialised teachers were deprived of equality of opportunity for promotion by the Rules and the scheme, that a discriminatory treatment resulted from keeping them in a separate cadre while recruiting for vacancies in the provincialised cadre as if they were in the State Cadre, and that the uniform fifteen‑eighty‑five percent ratio between higher‑scale and lower‑scale teachers further entrenched the inequality. Accordingly, the High Court declared the impugned provisions to be void and inoperative as they created inequality of opportunity for promotion.

In this case the Court observed that the Rules of 1961, by creating two separate cadres, generated an inequality of opportunity for promotion within the provincialised cadre. Accordingly, Rules 2 and 3, to the extent they produced such discrimination, were held to be void and inoperative as against the petitioners. The Government of Punjab had accepted the order in three of the four petitions, yet for reasons that do not appear in the record, and which were not supplied by the counsel for the State, an appeal was filed only against the present respondent. The Court noted that this circumstance did not constitute a valid basis for refusing to examine the appeal on its merits, as submitted by the State’s counsel. It was undisputed that more than twenty thousand teachers were employed in the provincialised schools, of whom fifteen per cent were placed under the scheme of provincialisation to be immediately posted in the higher salary scale, while the remaining teachers were placed in the lower scale. By contrast, the State Service comprised merely one hundred and seven posts before 1 October 1957. Although the rules and the policy decision distinguished the State teachers and the provincialised teachers as two separate cadres, they received the same salary grades, performed identical duties and were liable to be transferred so as to interchange their posts.

The Court identified the fundamental defect of the scheme in the provision that all vacancies in the provincialised cadre were not to be filled by new entrants to that cadre; instead, such entrants were to be treated as entrants to the State cadre. The practical effect of this provision was that the provincialised cadre would gradually shrink and be extinguished in roughly thirty years, whereas the State cadre would expand. By preserving a uniform ratio of fifteen per cent to eighty‑five per cent between the higher and lower scales in both cadres, the scheme relegated certain teachers in the provincialised cadre and in the lower scale to a permanent junior status, even when they were senior to new entrants in the State cadre. The Court illustrated this with a simple calculation: assuming three per cent of the total strength becomes vacant each year through death, retirement, resignation or other causes, approximately six hundred and thirty vacancies would arise in the first year of the scheme. Those six hundred and thirty vacancies would be filled by new appointments in the State cadre, thereby reducing the provincialised cadre by the same number. Consequently, the State cadre, which numbered one hundred and seven teachers on 1 October 1957, would increase to seven hundred and thirty‑seven teachers on 1 October 1958. Maintaining the fifteen‑to‑eighty‑five percent ratio in each cadre would require fifteen per cent of seven hundred and thirty‑seven teachers—about one hundred and ten—to be placed in the higher scale. In effect, practically every teacher in the State cadre would be promoted to the higher scale at the end of the year, regardless of seniority, while many teachers in the provincialised cadre would remain in the lower scale despite greater seniority.

The Court observed that promotion on the basis of seniority could be granted only if the teachers also fulfilled the statutory requirements concerning the prescribed educational qualifications and the mandated period of qualifying service. Assuming that every one of the one hundred and seven teachers then employed possessed the necessary qualifications, the Court noted that all members of the former State Service would consequently be eligible for advancement to the higher pay scale. However, the Court explained that by the close of the fiscal year ending on 30 September 1959 the promotional scheme would become untenable. At that point the State Cadre would have expanded to a total strength of one thousand three hundred and forty‑five teachers, of whom more than two hundred and one would already be occupying positions in the higher scale. To accommodate the statutory ratio, the Court said that over one hundred additional teachers would have to be elevated to the higher scale, and the Government would be compelled to draw on teachers from the junior scale of the State Cadre even though many of those teachers might not satisfy the required length of service. The Court further explained that if the length‑of‑service condition were relaxed, approximately one hundred newly appointed teachers in the State Service would be promoted to the higher scale, while a large number of teachers who had been “provincialised” would remain in the lower scale despite being many years senior to the new entrants and potentially possessing the necessary qualifications for promotion. The Court noted that the Solicitor‑General, appearing for the State, did not contest that such an outcome would follow from strict adherence to the terms of the scheme. The Court then turned to Article 16(1) of the Constitution, which provides that “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.” Referring to its earlier decision in General Manager Southern Railway v. Rangachari ([1962] 2 SCR 586), the Court explained that the expression “matters relating to employment” cannot be limited solely to the conditions existing before the act of employment. A narrow interpretation that restricts Article 16(1) to the moment of initial appointment would disregard the many other aspects that are intrinsically linked to employment. The Court listed such aspects as the determination of salary, periodic increments, leave conditions, gratuity, pension, and the age of superannuation, stating that all of these are unquestionably matters relating to employment and must be read within the ambit of Article 16(1). The Court affirmed that Article 16(1) guarantees equality of opportunity to every citizen with respect to all matters that fall under the definition of employment, as illustrated and explained by the Court. Finally, the Court observed that Articles 16(1), 14 and 15(1) constitute a unified constitutional code of guarantees that complement each other, and therefore the term “matters relating to employment” necessarily embraces every matter, whether occurring before, during or after the employment, that is incidental to the terms and conditions of such employment.

In addressing the scope of Article 16 (1), the Court observed that the expression “to the employment and form part of the terms and conditions of such employment” must be read broadly. The Court further noted that Article 16 (2) expressly prohibits discrimination and thereby secures the effective enforcement of the fundamental right of equality of opportunity that is guaranteed by Article 16 (1). Consequently, the words “in respect of any employment” used in Article 16 (2) are required to encompass all matters relating to employment that are specified in Article 16 (1). The Court stated that it was satisfied that promotion to selection posts falls within the ambit of both Article 16 (1) and Article 16 (2). By merely promulgating the rule and implementing the scheme of promotion, the fundamental right of the junior teachers who belong to the “provincialised” cadre and who are placed in the lower scale was, ex facie, infringed.

The Solicitor‑General, appearing for the State of Punjab, contended that the “provincialised Cadre” was a newly created cadre and that the State government was free to prescribe such terms of employment as it deemed appropriate for the new entrants when the District Board and Municipal Board schools were “provincialised”. According to the counsel for the State, the government, while exercising its expressly admitted right, offered terms of service that were substantially similar to those governing the “State Cadre”, but differed in two important respects: first, the transfer of junior teachers was limited to within the same district; and second, the right of promotion was restricted in the manner prescribed by the newly framed rules. The provincialised teachers accepted these terms, thereby forming a separate grade with distinct terms of employment, and, as the State argued, could not be said to belong to the same class as members of the State Cadre. On this basis, the State submitted that the respondent’s case was covered by the decisions of this Court in All India Station Masters’ & Assistant Station Masters’ Association v. General Manager, C.R. (1) and Kishori Mohanlal Bakshi v. Union of India (2). The counsel relied upon the principle articulated in the All India Station Masters’ case (1) that a denial of equal opportunity must be examined only among members of the same class. The Court reiterated that the concept of equal opportunity in matters of employment does not extend to variations in provisions between employees belonging to different classes under the State. Equality of opportunity in employment, the Court explained, can be predicted only between persons who are either seeking the same employment or have obtained the same employment. Similarly, equality of opportunity in matters of promotion must mean equality among members of the same class of employee and not equality between members of separate, independent classes. The counsel further cited Kishori Mohanlal Bakshi’s case (2), which held that “inequality of opportunity for promotion as between citizens holding different posts in the same grade may, therefore, be an infringement of Article 16”. The State argued that no such question arises when the rules create two distinct categories of employees, referring to the judgments cited above.

In this matter the Court observed that where different grades are eligible for promotion to distinct posts, there is, in the strict sense, no denial of equality of opportunity among citizens who hold posts of the same grade. The Court further held that between citizens occupying posts in different grades of Government service the question of equality of opportunity does not arise, and that Article 16 does not prohibit the creation of separate grades within the Government service. The pivotal issue for determination was whether the members of the “Provincialised Cadre” were in the same grade as the members of the “State Cadre.” Although the Government had formed two separate cadres – the State Cadre and the Provincialised Cadre – the Court found that this division alone was not decisive of a denial of equal opportunity. Both cadres received the same scales of remuneration, performed identical duties and functions, and held the same posts. A teacher of the State Cadre could occupy a post that a “Provincialised” school teacher could also occupy, and vice‑versa. The Court noted that a letter dated 27 January 1960, addressed by the Secretary to the Government of Punjab, Education Department, to the Director of Public Instructions, which formed the basis of the establishment of the two cadres, expressly stated that the two cadres were separate only for purposes of future promotion. Consequently, the Court could not hold that there existed any valid basis for classifying the members of the State Cadre and the Provincialised Cadre in a manner that would justify differential treatment between them for the purpose of promotion without infringing the constitutional guarantee of equality of opportunity in employment. The Court contrasted this situation with the All India Station Masters case (1) [1960] 2 S.C.R. 311, where two distinct classes of railway employees – Roadside Station Masters and Guards – performed different duties, were governed by separate rules regarding personnel numbers, posts, seniority, pay, and the manner of promotion, and were therefore reasonably regarded as separate classes each having its own recruitment, pay, and service conditions. The Court also referred to Kishori Mohanlal Bakshi’s case (1), where the Income‑tax services were reconstituted, creating two classes – Class I Officers eligible for promotion to higher posts such as Commissioners and Assistant Commissioners, and Class II Officers who were not eligible for direct promotion to those higher posts, although both classes performed the same kind of work but were placed on different pay scales.

The Court observed that officers in Class II could not be promoted directly to the higher posts, and that a portion of vacancies in Class I positions was to be filled by promotion of Class II officers while the remaining vacancies were to be filled through direct recruitment. Although both classes of officers performed essentially the same work, the Court noted that their pay scales differed. On the basis of these facts, the Court held that there was no denial of equal opportunity among citizens occupying posts of the same grade. Turning to the present matter, the Court stated that it could not be said that the grades of the “Provincialised” teachers and the State Cadre teachers were different. The Court acknowledged that at the time of recruitment to the service that later became the “Provincialised” Cadre, a lower degree of efficiency might in some cases have been required. However, once the District Board and Municipal Board school teachers were taken over by the Government of Punjab and an amalgamated Educational Service was created, any special provision relating to promotion that depended solely on the source of recruitment and on no other ground would seriously affect the promotion rights of members of the “Provincialised” Cadre and would infringe Article 16 clause (1) of the Constitution, as indicated by the cited authority (1) A.I.R. (1962) S.C. 1139. The Court further observed that for promotion to a higher grade the conditions applicable to both the State Cadre and the “Provincialised” Cadre were identical, namely that the teacher must be a matriculate and must have served for at least five years in the Education Department. Consequently, persons lacking the prescribed educational qualifications who had been admitted to the District Board and Municipal Boards as teachers would have no right to promotion. The State submitted that the Government was free to prescribe such terms for members of the “Provincialised” Cadre as it deemed appropriate and was not bound to grant them the same grades that were in fact granted, and therefore the members of the “Provincialised” Cadre could not challenge the validity of the promotion provisions. The Court responded that if the Government, in reality, gave the same terms of employment and thereby created a single grade comprising both State and “Provincialised” teachers, any discrimination between members of that grade on the basis of their source of recruitment, resulting in different treatment of those who entered the service later, would clearly violate Article 16 clauses (1) and (2). The Court noted that it was certainly permissible for the Government at the initial stage to assign different terms to the “Provincialised” Cadre and not to incorporate them into a service of the same grade as the State Cadre, but the Government ultimately gave the “Provincialised” teachers the same terms. Accordingly, it was no longer permissible for the Government to enact promotion rules that discriminated between “Provincialised” teachers and State Cadre teachers. The Court also considered the suggestion that had the Government treated all teachers equally, the teachers absorbed from the Pepsu region would have taken precedence over the “Provincialised” teachers, thereby depriving the latter of any realistic opportunity for promotion under the present scheme.

In this case, the Court observed that if the teachers absorbed from the former PEPSU region had been given priority over the teachers classified as ‘Provincialised’, the members of the Provincialised Cadre would not have obtained even the minimal opportunity for promotion that the present scheme provides. The Court considered it unnecessary to speculate about the consequences that might have arisen under any alternative scheme that the Government could have adopted. It was accepted as common ground that the teachers taken from the PEPSU area were placed in a separate cadre whose distinctive character has been preserved. The matters before the Court concerned only the State teachers and the Provincialised teachers who were governed by the scheme that became effective on 1 October 1957; under that scheme the teachers from the PEPSU region have not been merged with the other categories. Consequently, the Court found the question of whether Provincialised teachers would have benefitted from being integrated into a common service with the PEPSU teachers to be irrelevant to the present appeal. The appellants also argued that because the rules were given retrospective operation from 1 October 1957, the Government was free to assign any terms it deemed appropriate to the new entrants and that no right of those entrants was violated. The Court, however, noted that the State Government initially admitted the Provincialised teachers into a single unit of employment and later, by means of retrospective provisions, attempted to create a differential treatment between the two sections that together formed that unit. The protection guaranteed by Article 16 was invoked against this differential treatment, and the Court held that such protection was applicable. Accordingly, the Court affirmed the High Court’s finding that the rules which effect a distinction between members of the State Cadre and members of the Provincialised Cadre with respect to promotion to the higher scale are invalid, and therefore the appeal failed. By the Court’s order, the appeal was allowed, the High Court’s order striking down rule 2(d) and 2(e) and the portion of rule 3 relating to promotions was set aside, and no costs were awarded.