ns Nos 154 and 203 of 1966
Petition under article 32 of the Constitution of India for the enforcement of fundamentals rights
section K Mehta and K L Mehta for the petitioners in both the petitions
N section Bindra A Sreedharan Nambiar  R H Dhebar for R N Sachthey for respondent No 1 in W P 154 of 1966
1 M Lall and E C Agrawala for respondent No 2 in WPNo 154 of 1966
R H Dhebar for R N Sachthey for respondents Nos
I and_ in WP No 203 of 1966
H R Gokhale and E C Agarwala for respondent No 6 in WP No 203 of 1966
Respondent No 10 appeared in person in WP No 203 of 1966
Ramaswami J
In this case the petitioner Roshan La1 Tandon has obtained a rule from this Court calling upon the respondents to show cause why a writ in the nature of mandamus under article 32 of the Constitution of India should not be issued commanding the respondents not to carry out the directives contained in the notification of the Railway Board No ENG65 PMI 26 dated the 27 the October 1965 Annexure D  to the Writ Petition in so far as it grants protection to the existing Apprentice Train Examiners and lays down the procedure to fill upgraded vacancies
Cause has been shown by the respondents to whom notice of the rule was ordered to be given
There were originally two scales for Train Examiners Rs 100 185  D  Grade and Rs 150 225  C  Grade
These scales were later revised as a result of the recommendations of the Second Pay Commission and the scale of D  Grade was increased to Rs 180 240 and that of C  Grade to Rs 205 280
On February 18 1961 the Railway Board issued a letter No PC 60PS5 TP 8 Annexure A  to the Writ Petition to the General Managers 187 of all Indian Railways conveying its decision that vacancies in the Entry Grade of Train Examiners in the scale Rs 180 240 with effect from February 18 1961 should be filled as follows i 50 of the vacancies should be filled from Apprentice Train Examiners who successfully have completed the prescribed 4 years apprenticeship the remaining 50 of the vacancies being filled by promotion of skilled artisans
ii 20 1O of the annual requirements of Apprentice Train Examiners should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which the apprenticeship is likely to commence
 Promotion to Grade C  of Train Examiners used to take place on the basis of seniority cum suitability without any distinction whether the employee entered Grade D  of the Train Examiners directly or was selected out of the category of skilled artisans
This rule was laid down by the Railway Board in its letter No ES 1 57 TRS41 dated January 25 1958 which states Ref  Para 2 of Board s letter No ER 49 JAC  13 dated 23 2 50 laying down that 20 of the posts in the TXR grade Rs 150 225 should be reserved and the TXR in the grade of Rs 80 160 since revised Rs 100 185 promoted from skilled and semi skilled ranks
The Board have reviewed the position and have decided that promotion to the TXR grade of Rs 150 225 should hereafter be made solely on the basis of seniority cum suitability and the reservation of only 20 as mentioned above will no longer be operative Annexure B  to the Writ Petition
On the basis of this rule the Divisional Personnel Officer New Delhi prepared a seniority list for the Train Examiners of Grade D  of Delhi Division as on December 31 1964 Annexure C  to the Writ Petition On October 27 1965 the Railway Board issued the impugned notification Annexure D  to the Writ Petition
The notification states in the first place that on and from April 1 1966 vacancies in the Entry Grade of Train Examiners scale Rs 120 240 should not be filled from Apprentice Train Examiners upto 50 as hitherto but should exclusively be filled by promotion from amongst artisan staff With regard to the next higher grade ie Grade C  it was provided that 80 vacancies should be filled by Apprentice Train Examiners who had successfully completed the prescribed training of 5 years three years in case of Diploma Holders and three years in case of Artisan recruited as Apprentice Train Examiner
Twenty per cent of the vacancies were to be filled by the Train Examiners from Grade D 
It was 188 further provided that the Train Examiners Grade D  who began as Apprentice Train Examiners and who were to be absorbed in the C  Grade against 80 vacancies reserved for them should not be required to undergo selection before being absorbed in that grade
As regards 20 vacancies reserved for the other class of Train Examiners the promotion was to be on selection basis
The materials portion of the notification of the Railway Board dated October 27 1965 is reproduced below RECRUITMENT i Vacancies in the entry grade of Train Examiners in the authorised scale Rs 180 240 should not be filled from apprentice TX Rs upto 50 as hitherto but should exclusively be filled by promotion from amongst artisan staff
ii a Vacancies in the next higher grade Rs 205 280 AS should be filled from amongst X X the TXRs in grade Rs 180 240 AS to the extent of 2O
b The remaining 80 vacancies should be filled by Apprentice TX Rs who have successfuly completed prescribed apprenticepship mentioned in para 2 below
c 25 of the annual requirements of apprentice TXRS
should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which apprenticeship is likely to commence
The instructions contained in Board s letter No 2NG 61MI101 dated 6 6 62 should be kept in view
Training 2
The Appentice TXRs recruited on and from 1466 shall be given a training for a period of five years three years in the case of diploma holders
From the same date artisans in lower grades recruited as apprentice TXRS shall be given in service  training for period of three years
Instructions regarding a revised syllabus for the training of the Apprentice TXRS
will follow DISTRIBUTION OF POSTS IN DIFFERENT GRADE Fifty per cent of existing posts of TXRs in grade Rs 180 240 which were required to be earmarked forApprentice TXRS
in terms of Board s letter No PC 60 PS 6TP 8 dated 18 2 1961 should be upgraded to scaleRs
205 280
189 REVISED DESIGNATIONS AND CLASSIFICATION OF POSTS OF TXRS
Designation Scale of Pay Classification T X Its
Grade D  180 240Non selection T X Rs Grade C  205 280Selection for promotees from grade ID  T X Rs Grade B  250 380Selection T X Its
Grade A  335 425Non selection Head T X Rs 370 475 Selection Chief T X Rs 450 575 Selection Carriage Foreman Protection to the existing apprentice TXRS
procedure fill upgraded vacancies
It has also been decided that with effect from 1 4 66 all the Apprentice TXRS
Diploma holders as well as others on successful completion of their training should be straightaway brought on to the scale Rs 205 280 AS instead of being first absorbed in scale Rs 180 6 240 as at present
Consequenty they should be allowed stipend in scale Rs 180 6 210 during the period of their training
As regards the apprentice TXRS
who are undergoing training at present and will not be brought on to the work working posts before 1 4 66 it has been decided that from the date of this letter they should be allowed stipend in scale Rs 180 6 210 during the remaining period of their training
Their period of training should also be increased to 5 years on completion of which they should be put on to the working posts in scale Rs 205 280 AS
The Apprentice TXRS
who have already been or will be absorbed in scale Rs 180 240 upto 31 3 66 should first be accommodated in scale Rs 205 280 against the quota of 80 vacancies reserved for them
Such staff should not be required to undergo a Selection  before being absorbed in that grade
The upgraded vacancies in scale Rs 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of TXRS
in scale Rs 180 240 on a selection basis
While computing the number of posts available for promotion of TXRS
in scale Rs 180 240 the vacancies likely to occur during the period 190 of apprenticeship of the apprentices under training as on 1 4 66 should also be taken into account
In other words it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1 4 66 who cannot be absorbed in the anticipated vacancies which will arise by the time they qualify
 The petitioner Roshan Lal Tandon entered railway service on March 6 1954 as skilled fitter on the Northern Railway
He was selected for the training for the post of Train Examiner Grade D  on June 5 1958 and was confirmed in that grade on October 25 1959
The case of the petitioner is that he alongwith the direct recruits formed one class in Entry grade D  and their condition of service was that seniority was to be reckoned from the date of appointment as Train Examiner in Grade D  and promotion to Grade C  was on the basis of seniority cum suitability test irrespective of the source of recruitment
It was alleged that there was no difference between the apprentices and those selected out of the skilled artisans when they entered Grade D  and that portion of the impugned notification which gave a favourable treatment to the direct recruits in Grade D  with regard to promotion to Grade C  was arbitrary and discriminatory and violated the guarantee under articles 14 and 16 of the Constitution
It was contended that the petitioner having been brought to grade D  by undergoing the necessary selection and training and having been integrated with the others who had been brought in through direct recruitment in grade D  could not be differentiated for the purpose of promotion to the senior Grade C 
The petitioner has therefore moved this Court for the grant of a writ under article 32 of the Constitution to quash the notification of the Railway Board dated October 27 1965
In the counter affidavit respondent No 1 has denied that there was any violation of the guarantee under articles 14 and 16 of the Constitution
It was conceded that prior to April 1 1966 promotion to the post of Grade C  Train Examiner was on the basis of seniority cum suitability but the impugned notification was issued by the first respondent because it Was decided that the posts of senior Train Examiners in Grade C  should be filled by men possessin adequate technical knowledge and so the period of training of senior Train Examiners was increased and it was decided that in future 80 per cent of the vacancies in C  grade should be filled directly by Apprentice Train Examiners and the remaining 20 per cent was to be made available for recruitment from the category of Train Examiners to which the petitioner belonged
This recruitment of 20 per cent vacancies was to be made on the basis of merit
It was said that the reorganisation of the Service was made with a view to obtain a better and more technically trained class of Train Examiners
The reason was that 191 there were more complicated designs
of Carriages and Wagons acquisition of modern type of Rolling Stock and greater speed of trains under dieselisation and electrification programmes
It was
considered that there should be a better calibre of technically trained and technically qualified personnel for proper maintenance and safety of the Rolling Stock
In view of the decision to recruit Apprentice Train Examiners directly in C  Grade with effect from April 1 1966 those who were Apprentice Train Examiners in Grade D  before that date had to be upgraded in the scale of Rs 205 280
It was therefore thought that these posts should be upgraded so that there should be parity of treatment with the Apprentice Train Examiners who were to join after April 1 1966
The first respondent has also controverted the allegation of the petitioner that the procedure outlined in the impugned notification dated October 27 1965 in regard to the upgraded vacancies was discriminatory
The main question to be considered in this case is whether the notification by the first respondent dated October 27 1965 is violative of articles 14 and 16 of the Constitution in so far as it makes a discrimination against the petitioner for promotion to Grade C 
According to the impugned notification the existing Apprentice Train Examiners who had already been absorbed in grade D  by March 31
1966 should first be accommodated in grade C  in 80 of the vacancies reserved for them without undergoing any selection
With regard to 20 of the vacancies there is a reservation in favour of the departmental Train Examiners but the promotion is by selection and not by the test of seniority cum suitability which prevailed before the date of the impugned notification
It was not disputed by Mr Mehta on behalf of the petitioner that the Railway Board was competent to say that with effect from April 1 1966 vacancies in the Entry grade posts of Train Examiners should not be filled from Apprentice Train Examiners upto 50 but should be exclusively filled by promotion from amongst artisan staff
As regards the recruitment to grade C  the impugned notification states that with effect from April 1 1966 all the Apprentice
Train Examiners on successful completion of their training should be straightaway brought on to the scale Rs 205 280 instead of being first absorbed in scale Rs 180 6 240 as at present
The period of training was also increased to 5 years on completion of which they should be put on to the working posts in scale Rs 205 280
So far as this portion of the notification is concerned Counsel for the petitioner did not raise any constitutional objection
But the contention of the petitioner is that the following portion of the notification was
constitutionally invalid The Apprentice TXRS
who have already been or will be absorbed in scale Rs 180 240 upto 31 3 66 should first be accommodated in scale Rs 205 280 192 against the quota 80 vacancies reserved for them
Such staff should not be required to undergo a Selection  before being absorbed in that grade
The upgraded vacancies in scale Rs 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of TXRs in scale Rs 180 240 on a selection basis
 In our opinion the constitutional objection taken by the petitioner to this part of the notification is well founded and must be accepted as correct
At the time when the petitioner and 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 form one class and they cannot be discriminated for the purpose of further promotion to the higher grade C 
In the present case 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
As a consequence of the impugned notification a discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorbed in Grade D  by March 31 1966 because the notification provides that this group of Apprentice Train Examiners should first be accommodated en bloc in grade C  upto 80 per cent of vacancies reserved for them without undergoing any selec tion
As regards the 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioner belongs the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned
In our opinion the present case falls within the principle of the recent decision of this Court in Mervyn vs Collector1
In that case the petitioners who were Appraisers in the Customs Department filed a writ petition under article 32 challenging the validity of the rotational system as applied in fixing the seniority of Appraisers and Principal Appraisers
The system as laid down in the relevant departmental circulars was that vacancies occurring in the cadre of Appraisers were to go alternatively to promotees  and direct recruits 
According to the petitioners of that case this resulted in inequality especially in view of the fact that the number of direct recruits over the years was very low
Promotion to the 1  193 grade of Principal Appraisers was from the cadre of Appraisers only those who had served as Appraisers for five years were entitled to be promoted to the higher grade
Since the direct recruits had to wait for five years before they could become Principal Appraiser the promotees below them who had put in five years as Appraisers became Principal Appraisers
In order to restore the seniority of the direct recruits thus lost the rotational system was applied to the cadre of Principal Appraisers also ie one vacancy was to go to a promotee and the other to a direct recruit
The plea of inequality in violation of article 161 of the Constitution was raised by the petitioners in respect of this also
It was held by this Court in the first place that there was no inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct recruits and promotees
It was held in the second place that the same could not be said when the rotational system was applied to the recruitment of Principal Appraisers
The source of recruitment for these was one only namely the grade of Appraisers
There was no question of any quota being reserved from two sources in their case
In so far therefore as the Government was doing what it called res toration of seniority of direct recruits in Appraisers grade on their promotion to the higher grade it was clearly denying equality of opportunity under article 16 of the Constitution
At page 606 of the Report Wanchoo J as he then was speaking for the Court observed as follows This brings us to the question of Principles Appraisers
We are of opinion that the petitioners have a legitimate grievance in this respect
The source of recruitment of Principal Appraisers is one namely from the grade of Appraisers
There is therefore no question of any quota being reserved from two sources in their cases
The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment
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 found 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 LPNISCI 14 194 to Apprasiers which is the only source of recruitment to the Principal Appraisers  grade
There is only one source from which the Principal Appraisers are drawn namely Appraisers the promotion being by selection and five years  experience as Appraiser is the minimum qualification
Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally
That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers  grade subject of course to the right of government to revert any of them who have not been found fit during the period of probation
But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits
The present method by which the respondent puts a direct recruit from the grade of Appraiser though he is promoted later above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment namely from the grade of Appraisers
In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers  grade is a direct recruit or a promotee
This will as we have already said be subject to the government s right to revert any one promoted as a Princivil Appraiser if he is not found fit for the post during the period of probation
The petition therefore will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers
That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers
What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made and that cannot be done when the source of promotion is one
 We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grage D and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board
It was said that the order of the Railway Board dated January 25 1958 Annexure B  laid down that promotion to Grade C  from Grade D  was to be based on seniority cum suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner
In our opinion there 195 is no warrant for this argument
It is true that the origin of Government service is contractual
There is an offer and acceptance in every case
But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be framed and altered unilaterally by the Government
In other words the legal position of a Government servant is more one of status than of contract
The hall mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties
The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee
It is true that article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under article 310
But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant
The legal relationship is something entirely different something in the nature of status
It is much more than a purely contractual relationship voluntarily entered into between the parties
The duties of status are fixed by the law and in the enforcement of these duties society has an interest
In the language of juris prudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned
The matter is clearly stated by Salmond and Williams on Contracts as follows So we may find both contractual and status obligations produced by the same transaction
the one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations de fined by the lawitself and so pertaining to the sphere of status
A contract of service between employer and employee while for the most part pertaining exclusively to the sphere of contract pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents such as liability to pay compensation for accidents
The extent to Which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves or thinks fit to bring the matter within the sphere of status by mining for itself the contents of the relationship is a matter depending on considerations of public policy
In such contracts as those of service the tendency in modem times is to withdraw the matter more and more from the domain of contract into that of status lm0 Salmond and Williams on Contracts 2nd edition p 12
196 We are therefore of the opinion that the petitioner has no vested contractual right in regard to the terms of his service and that Counsel for the petitioner has been unable to make good his submission on this aspect of the case
But for the reasons already expressed we hold that the impugned part of the notification violates the guarantee under articles 14 and 16 of the Constitution and a writ in the nature of mandamus should be issued commanding the first respondent not to give effect to the impugned part of the notification viz The Apprentice TXRs who have already been or will be absorbed in scale Rs 180 240 upto 31 3 66 should first be accommodated in scale Rs 205 280 against the quota of 80 vacancies reserved for them
Such staff should not be required to undergo a Selection  before being absorbed in that grade
The upgraded vacancies in scale Rs 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of TXRs
in scale Rs 180 240 on a selection basis
While computing the number of posts available for promotion of TXRs
in scale Rs 180 240 the vacancies likely to occur during the period of apprenticeship of the apprentices under training as on 1 4 66 should also be taken into account
In other words it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1 4 66 who cannot be absorbed in the anti cipated vacancies which will arise by the time they qualify
 The application is accordingly allowed but there will be no order with regard to costs in this case
Writ Petition No 203 of 1966 The material facts of this case are parallel to those in Writ Petition No 154 of 1966 and for the reasons already given we hold that the petitioner is entitled to the grant of a writ in the nature of mandamus commanding the respondents not to give effect to the impugned part of the notification dated October 27 1965 Annexure D  to the Writ Petition
The application is accordingly allowed but there will be no order as to costs in this case
Petitions allowed


Summary:
Vacancies in grade D  of Train Examinations were filled by a direct recruits ie apprentice train examiners who had completed the prescribed period of training and b promotees from skilled artisans
Promotion from Grade D  to C  was on the basis of seniority cum suitability
In October 1965 the Railway Board issued a notification by which it was provided that eighty per cent of the vacancies in Grade C  were to be filled up from apprentice train examiners recruited on and after April 1 1966 and the remaining twenty per cent by train examiners from Grade D 
The notification further provided that apprentice train examiners who had already been absorbed in Grade D before April 1966 should en bloc be accommodated in Grade C  in the eighty per cent of the vacancies without undergoing any selection and with regard to twenty per cent of the vacancies reserved for the other class promotion was to be on selection basis and not on the basis of seniority cum suitability
The petitioner who entered Railway service in 1954 as a skilled artisan and was selected and confirmed in Grade D  filed a Writ Petition in this Court challenging that part of the notification which gave favourable treatment to apprentice train examiners who had already been absorbed in Grade 14 D  as arbitrary and discriminatory and violative of Articles t4 and 16 of the Constitution
It was also contended that the earlier order laying down that promotion to grade C  was to be based on seniority cum suitability had become a contractual condition of service and could not be altered to the prejudice of the petitioner
HELD i The impugned part of the notification violated the guarantee under Articles 14 and 16 of the Constitution
Once the direct recruits and promotees were absorbed in one cadre they formed one class and they could not be discriminated against for the purpose of further promotion to the higher grade C 
Before the impugned notification was issued there was only one rule of promotion applicable to both direct recruits and promotees
By the impugned notification a discriminatory treatment was made in favour of the existing apprentice Train Examiners who had already been absorbed in grade D  because the notification provided that this group of apprentice train examiners should first be accommodated en bloc in grade C  up to eighty per cent of the vacancies reserved for them without undergoing any selection whereas in the twenty per cent of the vacancies available to the category of Train Examiners to which the petitioner belonged the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned
192 D G
186 Mervyn vs Collector  relied on
ii The petitioner had no vested contractual right in regard to the terms of his service
The legal position of a Government servant is more one of status than of contract
Once appointed to his post or office a Government servant acquires a status and his rights and obligations are no longer determined by consent of parties but by statute or statutory rules which may be framed and altered unilaterally by the Government
195 B C