126 of 1958
Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights
N C Chatterjee and B V section Mani for the petitioners
B Sen and R H Dhebar for the respondent
November 20
The Judgment of the Court was delivered by DAS GUPTA J
The petitioners who describe them selves as Road side Station Masters challenge in this petition under article 32 of the Constitution the constitutionality of the channel of promotion for Guards to higher grade Station Masters  posts as notified in the issue of the Central Railway Weekly Gazette No 3 dated November 23 1951
Under this Notification Guards have two lines of promotion open to them
One is that by promotion C grade Guards may become B grade Guards on Rs 100 185 and thereafter by further promotion A grade Guaids on Rs 150 225
The second line of promotion open to them is that by an examination described curiously enough as Slip 45 examination C grade Guards are eligible for promotion to posts of Station Masters on RS
150 225 scale and thereafter to all the further promotions that are open to the Station Masters viz higher cales of Rs 200 to Rs 300 Rs 260 to Rs 350 Rs 300 to Rs 400 and finally Rs 360 to Rs 500 B grade Guards and A grade Guards are also on passing Slip 45 examination eligible for promotion to posts of Station Masters on Rs 200 300 pay scale and thereafter to further promotions to the higher scales in the Station Masters  line
The Road side Station Masters on pay scale of Rs 80 to Rs 170 313 the scale was formerly Rs 64 170 can also reach by promotion the grade of Rs 150 225 but only after going through an intermediate stage of Rs 100 185
Similarly Station Masters on Rs 100 185 scale may also reach the stage of Rs 200 300 but only after passing through the intermediate stage of Rs 150 225
Obviously the provisions enabling Guards to become Station Masters on the pay scale of Rs 150 225 places the Station Masters of Rs 80 170 scale at a disadvantage as against Guards on that pay scale and also puts the Road side Station Masters on the pay of Rs 100 185 pay scale at a disadvantage as against Guards on that scale of pay
The petitioners contend that the channel of promotion in so far as it enables Guards to be promoted as Station Masters in addition to the other line of promotion open to them as Guards amounts to a denial of equal opportunity as between Road side Station Masters and Guards in the matter of promotion and thus contravenes the provisions of article 161 of the Constitution
It was further alleged in the petition that taking advantage of this channel of promotion Guards become Station Masters on Rs 150 225 at a very much younger age than Road side Station Masters and thus block the chances of higher promotion to Road side Station Masters who reach the Rs 150 225 scale when they are much older
As instances of how the impugned provisions in the channel of promotion are harmful to the Road side Station Masters the petitioners state that while the petitioner No 2 even after completing 32 years of service has remained in the grade of Rs 100 185 as Station Master Guards of equal status and standing have reached gazetted rank within the same period of service that whereas the petitioner No 3 has come by promotion to the grade of Rs 150225 after putting in 21 years of service Guards of his standing have risen to the grade of Rs 360 500 by virtue of the impugned channel of promotion and several of his juniors who entered the Railway service long after him as Guards have superseded him and are working in the grade of Rs 360 500 that while the 314 petitioner No 4 having entered into service as Telegraph Candidate and having passed all the requisite examinations prescribed for the higher grade of Station Master within a period of 2 12 years after putting in 6 12 years of service is still in the grade of Rs 80 170 Guards of his length of service and departmental qualification are entitled for promotion as an Assistant Station Master in the grade of Rs 150 225 within about the same length of service
The respondents the General Manager Central Railways Bombay VT the Chairman Railway Board New Delhi and the Union of India who contest the application contend that the channel of promotion providing these opportunities to Guards does not in any way contravene the provisions of article 161 of the Constitution
They also deny the correctness of the allegation that as a result of these opportunities Guards become Station Masters on Rs 150 225 pay scale at a Younger age than Road side Station Masters
On the material before us it is not possible to come to a firm conclusion as regards the relative age at which Guards or Road side Station Masters ordinarily reach the pay scale of Rs 150 225
Assuming however the position to be as stated in the petition that may only evoke some sympathy for the Road side Station Masters but does not in any way affect the decision of the question whether article 161 of the Constitution is contravened by this channel of promotion
article 161 of the Constitution is in these words There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State 
 The impugned provisions of the channel of promotion are in respect of promotion of persons already employed under the State and not in respect of the first employment under the State
If the equality of opportunity  guaranteed to all citizens by article 161 does not extend to matters of promotion the petitioners  contention that the provisions are void must fail at once
If however matters of promotion are 315 also  matters relating to employment within the meaning of article 161 of the Constitution the next question we have to consider is whether the impugned provisions amount to denial of equality of opportunity within the meaning of that Article
We propose to consider the second question first on the assumption that matters of promotion are Cc matters relating to employment 
So multifarious are the activities of the State that employment of men for the purpose of these activities has by the very nature of things to be in different departments of the State and inside each department in many different classes
For each such class there are separate rules fixing the number of personnel of each class posts to which the men in that class will be appointed questions of seniority pay of different posts the manner in which promotion will be effected from the lower grades of pay to the higher grades eg whether on the result of periodical examination or by seniority or by selection or on some other basis and other cognate matters
Each such class can be reasonably considered to be a separate and in many matters independent entity with its own rules of recruitment pay and prospects and other conditions of service which may vary considerably between one class and another
A member joins a particular class on recruitment he leaves the class on retirement or death or dismissal discharge resignation or other modes of termination of service or by joining another class of employees whether by promotion thereto or direct recruitment thereto on passing some examination or by selection in some other mode
It is clear that as between the members of the same class the question whether conditions of service are the same or not may well arise
If they are not the question of denial of equal opportunity will require serious consideration in such cases
Does the concept of equal opportunity in matters of employment apply however to variations in provisions as between members of different classes of employees under the State In our opinion the answer must be in the 316 negative
The concept of equality can have no existence except with reference to matters which are common as between individuals between whom equality is predicated
Equality of opportunity in matters of employment can be predicated only as between persons who are either seeking the same employment or have obtained the same employment
It will for example plainly make no sense to say that because for employment as professors of colleges a higher University degree is required than for employment as teachers of schools equality of opportunity is being denied
Similarly it is meaningless to say that unless persons who have obtained employment as school teachers have the same chances of promotion as persons who have obtained employment as teachers in colleges equality of opportunity is denied
There is in our opinion no escape from the conclusion that equality of opportunity in matters of promotion must mean equality as between members of the same class of employees and not equality between members of separate independent classes
The Petitioners  Counsel did not seriously challenge the correctness of the above proposition
They contended however that Road side Station Masters and Guards really form one and the same class of employees
In our opinion there is no substance in this contention
It has to be noticed first that Appendix 11 of the Indian Railway Establishment Code Vol 1 which prescribe rules for the recruitment and training of subordinate staff of Indian Railways classify the subordinate staff governed by the rules into 7 branches 1 Transportation Traffic 2 Commercial 3 Transportation Power 4 Civil Engineering  5 Store department Staff 6 Office clerks and 7 Medical
Each branch again has been divided into groups
The first branch ie the Transportation Traffic is shown as having 3 groups i Station Masters ii Guards iii Outdoor Clerical Staff
Rule 2 the definition section defines a  group  to mean a series of classes which form a normal channel of promotion
Rule 8 shows the classes of posts 317 included in the Station Masters  group and the normal channels of their promotion which are as follows Signaller Assist
Head Signallers Assist
Station Masters lower grade Head Signallers Station Masters lower grade Telegraph Inspectors Assist
controllers Assist
Yard Foreman Station Masters Controllers Yard Foremen Transportation Inspectors Rule 9 lays down the qualifications necessary for the recruitment to this group
Rule 10 says that the recruitment will be initially made as students and further provides that the recruits may be a persons to be trained in telegraphy in railway telegraph training schools and b persons who have completed a training in telegraphy in recognized private telegraph training schools
Note 2 of this Rule provides that recruits in either category will on the satisfactory completion of their training be eligible for appointment as signallers and will remain on probation for one year after such appointment
Provisions for training appear in Rule 11
Rule 12 provides for Refresher and Promotion Courses
Rules 13 to 17 are in respect of Guards
Rule 13 states the classes included in this group and the normal channels of their promotion thus Probationary Guards Goods or passengers guards Assistant Station Masters higher grades Assistant controllers Assist
Yard Foremen Station Masters Controllers Yard Foremen Transportation Inspectors Rule 14 lays down the qualifications necessary for recruitment in this line
Rule 15 provides that the 41 318 recruitment will normally be to the lower grade of Guards
Rule 16 provides that during the one year period of probation recruits will undergo training for a period to be fixed by the administration
Rule 17 provides for the periodical refresher courses at stated intervals and promotion courses as necessary may be prescribed
In deciding the question whether Road side Station Masters and Guards belong to one and the same class of employees or not we must not be misled by the words  groups  or  classes of posts  used in the above rules
The crux of the question is the nature of the differentiation between Road side Station Masters and Guards in recruitment prospects and promotion
We find that Road side Station Masters and Guards are recruited separately trained separately and the several classes of posts which are ordinarily open to them are also distinct and separate
The only point of contact between them is provided by the rule that Guards may become Station Masters by passing the Slip 45 examination
If after becoming Station Masters these Guards could continue also as Guards there might be some scope for suggesting that the two classes have coalesced
It is not disputed however that Guards once they become Station Masters cease to be Guards and continue as Station Masters
The fact that the qualifications necessary for recruitment as Guards or Station Masters are approximately or even wholly the same can in no way affect the question whether they form one and the same class or form different classes
As on the admitted facts the Roadside Station Masters and Guards are as already stated recruited separately and trained separately and have separate avenues of promotion the conclusion is irresistible that they form two distinct and separate classes as between whom there is no scope for predicating equality or inequality of opportunity in matters of promotion
In view of this conclusion it is unnecessary for the purpose of the present case to decide the other question whether matters of promotion are included in the words  matters relating to employment in 319 Article 161 of the Constitution
For even assuming that they are so included the present application must be rejected on the simple ground that the petitioners belong to a wholly distinct
and separate class from Guards and so there can be no question of equality of opportunity in matters of promotion as between the petitioners and Guards
The learned Counsel for the petitioners stated before us that this channel of promotion for Guards is peculiar to the Central Railways and is not now to be found in the other Zones of Indian Railways
If that be the position the matter may well deserve the attention of the Government but this has nothing to do with the merits of the petition before us
For the reasons mentioned above we dismiss the application but in view of all the circumstances we order that parties will bear their own costs
Petition dismissed


Summary:
Twelve named persons including the two appellants were charged with having formed an unlawful assembly with the common object of committing the murder of three persons
The Sessions Judge acquitted seven of the accused but convicted five under section 302 read with 149 and section 302 read with 34 of the Penal Code
He sentenced the appellants to death and the other three to imprisonment for life
On appeal the High Court acquitted one of the other three convicted persons but maintained the conviction and sentences of the appellants and the two others
The High Court held that there were ten to thirteen persons in the unlawful assembly though the identity of all the persons except four had not been established that all these persons had the common object and the common intention of killing the victims and that the killing was done in prosecution of the common object of the unlawful assembly and in further ance of the common intention of all
The appellants contended that they having been charged with sharing the common object and common intention with certain named persons it was not 173 open to the High Court to hold that they shared the common object or the common intention with certain other unspecified persons or with some of the persons who had been acquitted and that in the absence of any finding that the appellants gave the fatal blows they could not be held constructively liable for the murders either under section 149 or section 34 PenalCode for blows given by some unknown persons
Held that the appellants had been rightly convicted
Even though the number of convicted persons was less than five the High Court could still apply s 149 in convicting the four persons
There was nothing in law which prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons who together numbered more than five
In doing so the High Court did Dot make out a new unlawful assembly different from that charged  the assembly was the same assembly but what had happened was that the identity of all the members had not been clearly established
Kapildeo Singh vs The King  Dalip Singh vs State of Punjab  and Nay Singh vs State of Uttar Pradesh   applied
There was no difficulty in the application of s 34 Penal Code as the number of convicted persons was four and there was a clear finding that they shared the common intention with some others whose identity was not established
Even if it was not known which particular person or persons gave the fatal blows once it was found that the murders were committed in furtherance of the common intention of all each one of such persons was liable for the murders as though they had been committed by him alone
The section was intended to meet a case where members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them
Wasim Khan vs The State of Uttar Pradesh 1956 SCR 191 referred to
Prabhu Babaji Navle vs The State of Bombay AIR 1956 SC 51 distinguished