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Judgment
Ramakrishnan, J.—These writ appeals are filed against the decision of Kailasam J., in Writ Petition Nos. 3926 to 3931 of 1967. The prior
facts, so far as they are necessary for a consideration of the matter in controversy in these appeals, can be put down briefly.
The writ Petitioners entered service in the Post and Telegraphs Department as clerks on various dates between 1937 and 1940. The post of
accountant carried a higher scale of pay, and it is, therefore, promotion post from the clerical grade. Rule 273 of the Post and Telegraphs Manual,
Volume IV, prescribed for an examination being held in order to obtain a competent class of accountants for post offices. Rule 273(b) lays down
that the number of candidates to be selected to appear at the examination will be ten times the number of vacancies minus the number of officials in
the ordinary time-scales of pay who have passed the examination but who have not been provided for as accountants or assistant accountants.
Rule 273(c) provides that each candidate will normally be allowed three chances to appear for the examination, but in addition to this, a fourth
chance will be allowed provided that the candidate secures at least 35 per cent marks in the aggregate in the third chance. Rule 276 reads:
Appointments to posts of accountants or assistant accountants in the ordinary time-scales of pay carrying a special pay will be made from those
officials who have passed the Accountants'' examination according to their seniority in the clerical cadre.
Rule 276-4(a) provides that officials on the ordinary clerical time-scales of pay, who have passed the accountants examination, will be eligible for
appointment to posts of accountants or assistant accountants in the lower selection grade on Rs. 160-10-250, in preference to their seniors in the
general gradation list, who have not passed the accountants examination. Such appointments will normally be made in order of seniority, but the
appointing authority may, in his discretion pass over any senior official whom he does not consider fit for such promotion. The Petitioners had
passed the qualifying examination on different dates. The Petitioners in Writ Petition Nos. 3926, 3927, 3929 and 3931 passed in 1961, the
Petitioner in Writ Petition No. 3930 in 1964, and the Petitioner in Writ Petition No. 3928 in 1957. They began to officiate in the higher grade of
accountants on various dates in 1958, 1959 and 1961. At the time when those people were promoted in the years mentioned above, there were
some others, who are Respondents 2 to 8 in the writ petitions before Kailasam J. These seven persons are Allah Baksh, Ambalavanan,
Sambasivam, Denapal. Chinnakutty, Sundararajan and Kuppuswamy. They had entered service as clerks later than the Petitioners but had passed
the accountants examination before the Petitioners, three in 1947 and four in 1950. But the vacancies in the accountants'' posts were apparently
taken up for being filled up only in 1958 and in subsequent years. By that time the Petitioners also had qualified by passing the examination. It
would appear as if the promotion were made as that stage, of all these persons who had become qualified according to their seniority in the clerical
grade. This petition is made clear in the following tabular statement:
The last column shows that the Respondents, though they were appointed to officiate as accountants much later than the Petitioners, were
confirmed as accountants earlier than the Petitioner (except K.S. Krishnaswamy).
The complaint of the writ Petitioners is primarily against the delay and postponement of their confirmation in the posts of accountants and their
confirmation after the confirmation of the Respondents even though they were promoted to officiate in the posts earlier than the Respondents. They
urged that they have been unfairly discriminated against, in the matter, and that such discrimination involved a violation of Articles 14 and 16(1) of
the Constitution.
The reason alleged by the first Respondent, viz., the Director of Postal Services, Posts and Telegraphs, for making the above distinction is this, it
is based upon a circular, dated 18th December 1959, marked as exhibit-A, issued by the Director-General, Post and Telegraphs, New Delhi.
Serial Number Name of the OfficialDate of Years of passingDate from whichDate of
in the Substantive PO and RMS Officiating as Confirmation as
Gradation list entry in T/S Accountants LSG LSG Accountant
Clerk Examination Accountants
(1) (2) (3) (4) (5) (6)
633 C.S. Subramaniam 22nd May 19371951 1st December 10th July 1960
1958
678 V. Subramania 1951 11th September
Mudali17th June 19691st March
1938 1964
700 M. Subramaniam 15th August 1951 Do. Do
1938
717 T. John Ceellah 12th November 1951 Do. Do.
1938
818 V. Srinivasan 10th February 1954 Do. 1st March 1966
1940
823 K.S. Krishnaswamy1st March 19401957 Do. (not confirmed).
827 A. Allah Baksh Do. 1947 7th October 1st March 1962
1961
855 N.C. Ambalavanan*28th June 1940 1947 1st March 1962Do.
894 V. Sambasivam* 1st September 1947 3rd April 1962 2nd June 1962
1940
902 T.S. Venkataraman 1st September 1951 6th July 1961 1st March 1665
1940
1065 A. Denapal* 16th December 1950 1st June 1962 17th June 1962
1940
1149 R. Chinnakutty* 1st January 1950 7th February 13th April 1962
1943 1963
1272 P. SundaraRaju* 1st February 1950 29th March 8th May 1963
1944 1963
1462 A. Kuppuswamy* 1st March 19461950 10th July 1963 10th July 1963
* Respondent
A reference is invited to Rules 276 and 276-A(a) of Post and Telegraph Manual, Volume IV according to which appointments to the Posts of
Time Scale Accountants and L.S.G. Accountants in Post Offices and B.M.S. are made from those officials who have passed the Post
Office/B.M.S. Accountants Examination in the order of their seniority in the clerical cadre. The question of reversing the basis for appointment to
these posts has been under consideration for some time post and it has now been decided as follows:
(d) L.S.G. Accountants
This is a separate cadre and appointments to this cadre are made on a circle basis. Appointments to these posts will, from the dale of issue of these
orders, be made according to the year of passing the Post Office/R.M.S. accountants examination. Those qualifying in the same year will he
appointed in the order of their seniority in the clerical cadre. These orders will not affect the seniority of officials, who have already been confirmed
as L.S.G. Accountants. Officials who were appointed before the issue of these orders against regular vacancies and are awaiting confirmation in
their posts will continue to officiate in their posts. They will, however, be confirmed in their turn in accordance with the revised orders. For this
purpose the seniority of all officials who have pasted accountants, examination whether officiating or not will be refixed in accordance with present
orders.
The Petitioners are primarily aggrieved against the last part of paragraph (d) of the above circular (which is under lined by us) because it applies
to them. They were officials who were appointed against regular vacancies in accountants posts, and were awaiting confirmation in those posts
before the issue of the above circular 18th December 1969 except in the case of T.V. Venkataraman, Petitioner in Writ Petition No. 3926 of
1967 who was promoted in 1961, after the circular was issued, but before the Respondents were promoted to this higher grade. Though the
revised circular permitted them to continue to officiate in their posts, they were to be confirmed under the revised circular, not in accordance with
the date of promotion to their posts in the officiating cadre, but in accordance with the date when they passed the qualifying examination.
The learned Judge (Kailasam J.) observed, first of all, we entirely agree with him, that the persons whose seniority is affected by an order of the
above kind by the Director-General of Posts and Telegraphs admittedly an administrative order cannot complain that the provisions of Article
311(2) of the constitution are violated. Obviously, the revision of seniority is not one of the punishments visualised in Article 311(2) of the
Constitution. Next, the attention of the learned Judge was drawn to the decision of the Supreme Court in Mervyn Coutindo and Others Vs.
Collector of Customs, Bombay and Others, , we will refer to the particulars of this decision, in some detail later in the judgment. The learned
Judge, however, observed that the revision of seniority in the present case on the basis of passing of the examination appeared in his view to be a
valid exception to the rule that the seniority should normally be fixed according to the date of promotion to the higher grade. Further, the learned
Judge held that the revised rule was more equitable in that a person who had passed the examination earlier and commenced his service in that
cadre should be given seniority to the person, though a senior in the clerical grade, who had passed the examination and qualified himself to the
higher grade much later. The learned Judge observed that there was no constitutional principle involved in refixing the seniority of the persons
already in the higher grade in the above manner. The attention of the learned Judge was drawn by learned Counsel for the Petitioners to a decision
of the Mysore High Court in Yegneswaran v. Director General, P. and T. AIR 1967 Mys. 235 which had dealt with the identical circular as in this
case. The learned Judge (Kailasam J.) did not agree with the construction put on the circular, dated 18th December 1959 by the Mysore High
Court. Kailasam J. dismissed the writ petitions. The writ Petitioners have come in appeal before us.
After a careful consideration of the matter, we are of the opinion that the appeals have to be allowed. We have nothing to say about the validity
of the circular, dated 18th December 1959, so far as it makes a modification of the existing Rules 276 and 276-A, in regard to the persons in the
clerical grade, who had not yet been promoted to officiate in permanent vacancies, in the higher grade of accountants. What the circular prescribed
in their cases was that those qualifying in the same year will be appointed in the order of seniority in the clerical cadre. There is a further direction
that promotion to the accountants'' posts will be made according to the year of passing the examination. In other words, if it happens in the course
of the scheme of promotion in any particular year that a person who had passed the examination in an earlier year had not been promoted and is
awaiting promotion, that person will get preference over those persons who had passed the examinations later irrespective of seniority in service.
This pre-supposes a list of persons qualified by the examination being drawn up on a year-war basis, their seniority within a year being fixed in
accordance with Their seniority in the clerical cadre, and promotion to the higher grade being made, first of all, in accordance with the year of
passing the examination, and secondly in regard to those who pass the examination in a particular year according to the seniority in the clerical
cadre.
Unfortunately, this precise and detailed procedure was not followed when the Petitioners were promoted on the basis mentioned in the tabular
statement above, the promotion being strictly in accordance with their seniority in the clerical grade. The rules which then existed did not provide
for a detailed scheme of promotions on year-war basis, persons being grouped according to the year of passing the examination. Though the Rule
273(b) which we have extracted above provides for a fair estimate of the number of recruits to be selected at each examination, based upon the
estimate of vacancies, the rules did not provide as to how deal with persons who had passed the examination in one year but who could not be
promoted immediately, and when by the time the decision is taken to promote these clerks against vacancies other clerks had become qualified by
passing the examination in the succeeding years. The prior practice was that the rule that promotion should be in accordance with the seniority in
the clerical cadre was strictly applied, to all the persons who had qualified in succession years and remained on the waiting list. The writ Petitioners
were promoted in this manner and their promotion was made before promotion of the Respondents, relying on their seniority notwithstanding the
fact that the Respondents had passed the examination earlier than the Petitioner, though they were junior to the Petitioners in the clerical cadre.
What the impugned circular did was to alter the above position by reason of the introduction of a new principle that the year passing the
examination should be the basis for promotion and not the relative seniority in the clerical grade. On the date when tile circular was applied in this
manner retrospectively for the Petitioners, excepting T.S. Venkataraman, the Petitioner in Writ Petition No. 3936 of 1967, others were already
officiating in the higher grade. They were so officiating under the rules which entitled them to confirmation according to the length of service and the
seniority in the grade of accountants. It is not alleged by the Respondents that this officiating promotion was a purely temporary promotion which
carried with it no right of counting the service for seniority, confirmation, etc.
The impugned circular has laid it down that the circular would apply to officials appointed before the issue of the order against regular vacancies
and we awaiting confirmation in their posts. The Petitioners answer to this description. The Respondents who were promoted to officiate in the
posts on several dates in 1962 and 1963, so far as their position in the cadre of accountants is concerned, occupied the same position as the
Petitioners who had been promoted earlier. They came from a single lower cadre, namely clerks. All of them satisfied, however, the qualification
for being accountants, namely pass in the accountants'' examination. That some of them passed earlier in the examination and some of them passed
later in the examination would have no relevancy so far as the people who had already commenced to officiate in the higher grade are concerned.
If, as between the officials who officiate in the higher grade, a distinction were to be made in the matter of confirmation and seniority, on the basis
of the date of their passing the examination, it will be introducing a totally irrelevant consideration, for the purpose of their confirmation. It would
also amount to making an invidious distinction between persons who, so for as the requirements for the higher grade in which they are acting,
namely, the grade of accountants are concerned, are identically situated. Such discrimination, in our opinion, will attract the bar under 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.
The principle of invidious distinction violative of Article 16(1) of the Constitution has been applied by the Supreme Court and the other High
Court in several decisions. In Aswini Kumar Rath and Others Vs. Director of Public Instruction and Others, , the High Court of Calcutta dealt with
a situation which is explained by the following reasoning of the Court:
The mere fact that two different cadres are created does not show whether Article 14 or 16 has or has not been violated but once having included
employees into a single grade or unit of employment, it is not permissible for Government to provide a differential treatment between two sections
of the same unit with restrospective effect.
The same principle was reiterated by the Punjab High Court in a more recent decision in Punjab State and Another Vs. Lekh Raj Bowry and
Others, . In that case, there was a separate cadre of Vaidyas and Hakims in the State Service Class III. They were initially appointed in the
different States which merged into the Patiala and East Punjab States union. Subsequently, they were formed into a single cadre on the same
conditions and in the same grade with exactly same or similar nature of duties to perform under one and the same designation. But by a subsequent
notification, they were differentiated in their pay, the distinction being based upon whether they held a five years'' degree or not. The Punjab High
Court struck down that distinction observing:
Once this had happened, some members of the unified cadre could not be treated dissimilarly as against others of the same cadre in the matter of
their pay and other relevant conditions of service on the ground that some of them possessed higher or better qualifications. It is settled law that the
equality of opportunity guaranteed by Clause (1) of Article 16 of the Constitution does not end with the stage of initial appointment, but would
inevitably govern all matters relating to employment including questions of emoluments, chances of promotion, etc.
In Roshan Lal Tandon Vs. Union of India (UOI), we find the following observation at page 1893:
At the time when the Petitioner had the direct recruits were appointed to Grade ""D"", there was one class in Grade ""D"", formed of direct recruits
and the promotees from the grade of artisans. The recruits from both the sources to Grade ""D"" were integrated into one class and no discrimination
could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade
C"". To put it differently once the direct recruits and promotees are absorbed in one cadre, they from one class and they cannot be discriminated
for the purpose of further promotion to the higher Grade ""C"". In the present cadre, it is not disputed on behalf of the first Respondent that before
the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule
was seniority-cum-suitability, and there was no rule of promotion separately made for application to the direct recruits.
We will refer now to the decision of the Supreme Court in Mervyn Coutindo and Others Vs. Collector of Customs, Bombay and Others, The
Petitioner in that case was an appraiser in the Customs Department. The system that prevailed for the recruitment to the posts of appraisers was
that 50 per cent was reserved for direct recruitment while the remaining 50 per cent was filled up by promotion from subordinates in the Customs
Department. The seniority in the cadre of appraisers was determined by a system of rotation i.e., the list is arranged in such a way that there is one
person from the direct recruits and one from the promotees alternatively. The Petitioner also contended that in the cadre of Principle Appraisers
who are promoted from Appraisers, there was discrimination and violation of equality of opportunity, inasmuch as the same method was followed
in the matter of fixation of seniority of Principle Appraisers, though in their case, there was only one source of recruitment, i.e., by promotion from
the cadre of Appraisers. The Supreme Court rejected the Petitioner''s claim so far as the seniority of Appraisers inter se was concerned. But the
Petitioner''s grievance in regard to the fixation of seniority inter se as among the Principal Appraisers was upheld, on the ground that it was violative
of Article 16(1) of the Constitution. The Supreme Court observed:
In a case, therefore, where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade
gets his seniority in that grade according to the date of promotion subject always to his being fit and being confirmed in the higher grade after the
period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment
is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher
grade. In so far, therefore, as the Respondent is doing what it calls restoration of seniority of direct recruits in Appraisers'' grade when they are
promoted to the Principal Appraisers'' grade, it is clearly denying equality of opportunity to Appraisers which is the only sources of recruitment to
the Principal Appraisers'' grade.
A similar principle is also laid down by the Supreme Court in S.K. Ghosh and Another Vs. Union of India (UOI) and Others, . In the present case,
the source of recruitment to the accountant''s grade, is the clerical grade. It is open to the authorities to fix the seniority, before persons are
promoted to the accountants'' cadre, on the basis of the date of their qualifying by the examination. Once a number of people have been promoted
and all of them are qualified at the time of their promotion to officiate by having passed the examination, it will be discriminatory to ignore the
seniority by the length of service, and revert to the date of passing the qualifying examination for that purpose.
We will now refer to the decision of the Mysore High Court in Yegneswaran v. Director-General, P. and T. AIR 1967 Mys. 235. As we have
done above, the learned Judges of the Mysore High Court understood the term according to the year in the circular to mean that when
appointments are made at a given point of time, the appointee should be assigned ranks in the sequence in which the qualifying examination was
passed. They also observed that once the promotions are made and the names of those selected are entered in the panel in that order, obedience
to the directive become full and complete, and the seniority determined in that way is what holds the field unaffected by promotions or selection of
others on the next occasion or the subsequent occasion. They also observed that the directive did not mean that when persona appointed on more
than one occasion in that way have not been confirmed in their posts, all those, persons who have not been so confirmed, should be grouped
together, and that the seniority in regard to all of them should be determined with reference to the sequence in which the qualifying examination was
passed and that the mixing up of the several groups of appointees for common treatment in the determination of their seniority inter se was not
authorised by the Director General''s memo. The learned Judges also referred to the grave consequence which would result, if a different view was
adopted. They have referred to this consequence in paragraphs 18 and 19 of their judgment:
The acceptance of the other construction would produce the strange consequence that a person who was appointed as an accountant many years
earlier, would become junior to one who was appointed many years later on the extremely slender foundation afforded by that junior''s earlier
success in the qualifying examination. It shifts the importance of the selection or promotion to which the appointee owes his appointment under
Rule 272(ii) to success in the qualifying examination. An interpretation which endows the success in the qualifying examination, which, by itself does
not ensure an appointment to the post of an accountant, with an importance which is greater than that which should be attached to the selection or
promotion which alone takes the appointee to that post, should not commend itself to us unless the language of the memo, of the Director-General
is incapable of any other interpretation. And, we do not think that such is its language.
We feel reluctant to accade to a construction which produces an unreasonable and alarming consequence, such as, the acquisition of seniority by
sequence, such as, the acquisition of seniority by a person who is appointed to the post of an accountant long after someone else had been
appointed to that post, on the basis of his earlier success in the qualifying examination. The regulation of seniority in that way which of course
regulates in its turn the right to confirmation, does not have the suffrage, of reason and the constant fear in the mind of an unconfirmed accountant
of being overtaken by someone still in the clerical cadre would introduce an element of insecurity and pre-curiousness so detrimental to the growth
of ancient and contended public service.
We agree, in principle, with the view expressed above by the learned Judge of the Mysore High Court, though our approach to the question as
outlined above is slightly different. The impugned circular can be treated as valid in regard to persons not promoted to the higher grade. But once
promotion has been made of qualified persons to the higher grade, whether it be on the basis of seniority in the clerical grade, or on the basis of a
year-war list or panel, fixing seniority on the basis of the date of passing the examination those of the people who have commenced to officiate in
the higher grades should not be discriminated against by a subsequent refixing of seniority on the basis of the date of their passing the qualifying
examination. In their case, unless there are other administrative reasons, the date of promotion to the higher grade and the seniority consequent in
such promotion should be the rule for confirmation, so as to avoid charge of discriminative treatment falling within the purview of Article 16(1) of
the Constitution.