Case: Ram Lal Wadhwa & Others Vs. State of Haryana & Others

Shelat, J. 1. On October 1, 1957 when the then State of Punjab brought about provincialisation of all Schools till then run by the Local Bodies there were 231 High Schools and 762 Middle Schools conducted by the said Local Bodies. There were at that time 321 headmasters/headmistresses getting a scale of pay of Rupees 250-Rupees 350, 294 masters/.mistresses getting a scale of pay of Rupees 250-Rupees 300 and 1,792 masters/mistresses getting a lower scale of Rupee 100-Rupees 250. On October 1, 1957, all the Schools together with their existing staff were taken over by the State Government. As in the case of the primary junior teachers, it was provided that all these masters/mistresses from the provincialised Schools would be given the same scale of pay and allowances as were given to their counterparts serving in the Government Schools. 2. According to the petitioners the minimum qualifications required for the appointment of masters were the same for both the State schools and those conducted by the Local Bodies. That fact, coupled with the fact that they were to be given the same scale of pay, and allowances, meant that there was no difference between the provincialised masters and those appointed subsequent to the provincialisation between October 1, 1957 and February 13, 1961 when the 1961-Rules for the provincialised masters and teachers were promulgated, except that those who were appointed after the date of provincialisation were junior to them in service. According to the petitioners, the two categories of masters the provincialised and the Government Schools masters, therefore, formed one class since both the categories were given the same scales of pay, both were Government employees and both carried out the same duties and performed the same functions in Schools which on provincialisation became Government Schools. 3. The grievance of the petitioners was that Rules of 1961 divided masters, who for all practical purposes formed one class, into two arbitrary cadres, the State cadre and the provincialised cadre, and through their various provisions meted out differential treatment to those appointed after October 1, 1957 by their being treated as belonging to the State cadre, although the petitioners and several others like them were senior in experience than those recruited after the said date. The 1961-Rules thus created discrimination by divinding the masters into two categories although there was no rational basis for such a classification.4. As an by way of illustration of such alleged discrimination the petitioners stated that petitioner Ram Lal, a trained graduate (B. Sc., B. T.) was appointed in the District Boards High School, Rukhi District Rohtak in 1955. He was confirmed in that post on September 1, 1957, Respondent Rajeshwar Parshad was appointed in the same High School after provincialisation on May 12, 1958. Though the petitioner Ram Lal was thus senior to him in experience and possessed the same qualifications Rajeshwar had been called for promotion to the selection grade, while the petitioner was ignored. Likewise, petitioner Ram Niwas, also a trained Master (B. A., B.T.), was appointed on April 28, 1956 in the erstwhile District Board High School, Asandah, District Rohtak and was confirmed as such on October 1, 1957. Respondent Dilawar Singh was appointed in the same School on April 16, 1958. Though, therefore, junior to him in service, Dilawar Singh had been called for promotion to the selection grade only because under the 1961-Rules he had been placed on his appointment in the State cadre. In 1965, Petitioner Ram Niwas was transferred to the Government High School at Rajlugarh, District Rohtak, where in 1968 he officiated as the headmaster for about six months. Yet two of the appointees recruited after October 1, 1957, by reason of their being placed in the State cadre, would be promoted to the selection grade, while the petitioner, though senior to them, will not get such a chance. Being thus promoted to the higher grader earlier than the petitioner, the petitioner not only has lost chances of a higher grade but also chances of being appointed headmaster in future. Such a result has come about as a consequence of (a) splitting of the service in two cadres, (b) the provincialised cadre being made a diminishing cadre and (c) by transfer of posts falling vacant in the provincialised cadre to the State cadre. 5. The complaint of the petitioners was that as a result of the implementation of the 1961-Rules (a) all State School masters appointed before October 1, 1957 have been promoted to the selection grade, and (b) masters appointed after the date, though junior in service then the provincialised masters, have got quicker chances of being promoted to the selection grade than their counterparts in the provincialised Schools. The anomaly of such differential treatment was that though in some cases provincialised masters, by reason of their longer experience, have been called upon to officiate as headmasters, yet when it came to the promotion to the selection grade, those who were junior to them in service but were placed in the State cadre as a result of the said Rules, have been called earlier for being promoted to the higher grade. On the ground that the splitting of the service into two artificial cadres giving rise, as aforesaid to differential treatment to the two categories of masters, the petitioners challenged also the validity of two memos, dated February 20, 1968 and March 3, 1970, issued by the Director of Public Instruction, under which selection from amongst the members of the State cadre for promotion to the selection grade was proposed. These proposals are for those deemed to have been appointed in that cadre between October 1, 1957 and February 13, 1961 although they were posted in the provincialised Schools. The grievance was that although serving in the same Schools, the working of the 1961-Rules has enabled those junior to the petitioners to get better and quicker promotional chances to the detriment of the petitioners interest. For reasons almost identical to those taken in the junior teachers writ petition No. 657 of 1970, the petitioners claim that the 1961-Rules, as also the said memos, should be delivered invalid and the Respondent-State should be compelled to treat petitioners and those others in a like position as senior to all the masters appointed subsequent to their appointments. 6. As in the case of the petition by the junior teachers, the basis of the present writ petition is that both these categories of masters formed one class prior to February 13, 1961, but that the Rules of 1961 split up arbitrarily that class into two cadres resulting in the discriminatory treatment to those placed in the provincialised cadre and giving a differential treatment to those placed in the State cadre. The respondent-State denied that basis and pointed out that on October 1, 1957, when provincialisation came into operation, there were State Schools, teachers and masters who were governed by 1955-Rules made under Art. 309 of the Constitution. These Rules did not apply to those who were taken over to the Government service from the provincialised Schools and for whom rules were yet to be made and which rules were ultimately made and promulgated on February 13, 1961. Thus the two categories of masters were separate, and therefore, there was no question of one class of employees split up by the 1961-Rules into two categories. The Governments plea was that the fact that the two categories of masters received the same scales of pay and allowances or that they did the same kind of work or were even transferable from one type of Schools to another made no difference to the actual fact that they belonged to two separate categories and were never fused into one class. In fact even after provincialisation was brought about, the provincialised masters, until January 22, 1960, were not transferable to the State Schools. Since the 1955 Rules did not apply to the provincialised masters, and the two categories of masters were not at any stage fused together, separate rules had to be made for them and conditions of service for them had to be laid down after they were taken over to the Government service. In framing the new rules, the Government expressly provided that the provincialised masters and teachers, should form a separate cadre, which cadre should be a diminishing one which would ultimately vanish leaving the State cadre alone in the Government Educational service. Consequently, when vacancies fell and new teachers and masters were appointed, recruitment was made under 1955 Rules, and as laid down in those Rules by the Subordinate Service Selection Board. Respondents 4 to 236, recruited after October 1, 1957, were, therefore, deemed to have been taken in the State cadre under 1955 Rules and their conditions of service were government by those rules. 7. That being so, even though these masters appointed in State cadre were posted and served in the provincialised Schools, it made no difference to the fact that the two categories of teachers and masters were distinct and were governed by different sets of rules which laid down conditions of service obtainable to them. Therefore, the mere fact that a master from the State cadre was posted or transferred to a provincialised School did not mean that he should be governed by the Rules governing the provincialised cadre or vice versa. The respondent-Government denied that discrimination resulted either as a consequence, of the two categories being retained as distinct categories, or by the appointments after October 1, 1957 of new masters and teachers in the State cadre or by the provision of transfer of posts from the provincialised cadre to the State cadre in the 1961 Rules. If as a result of the working of these Rules the number of posts in the provincialised cadre gradually decreased with a corresponding rise in the number of posts in the State cadre and posts in the selection grade also underwent a similar variation, it was due to the decision taken by the Government to make the provincialised cadre a diminishing one. But the Government was not bound to combine the two categories into one class, nor was it not entitled to make separate rules for the provincialised masters who were taken over to the Government service particularly since the Government was confronted with several difficult problems in adjusting and fixing inter seniority of the members of the two categories. Since the two categories were governed by different sets of rules and conditions of service obtainable thereunder, each having its own selection grade, even if a member of one cadre got a promotional chance in his own cadre earlier than a member in the other cadre, even though the latter may be junior in service than the former, that did not mean that there was any discriminatory treatment to one against the other. The reason is that the two belonged to different cadres, are governed by different sets of rules and conditions of service and are entitled to promotional chances within their own respective cadres. 8. According to the respondent State, it would be erroneous to assume that a person appointed during the period between October 1, 1957 and February 13, 1961 was, junior to a person in the provincialised cadre since the former did not belong to the provincialised cadre to which the latter belonged, and the seniority of each was governed by the position he occupied in his own cadre. Likewise, the promotional chances each would be entitled to depend upon his own position in his own cadre. The fact again was that a person in the State cadre might obtain promotional chances earlier than his counterpart in the provincialised cadre by reason of the provincialised cadre being made a diminishing cadre, a decision to make it so being within the power of the Government. For, the Government was not bound to retain the strength of either of the two categories constant or to make new appointments in the provincialised cadre when vacancies fell therein. 9. The two categories being thus separate from the very inception and they not having been fused into one integrated class at any stage, there was no question of the Rules of 1971 having brought about any arbitrary classification by splitting up any such integrated class into two or providing differential treatment or any undue of illegitimate preference being given to one against the other. 10. It is not necessary to dilate any further over the contentions raised by the petitioners since they go over substantially the same grounds as were taken in the teachers petition. Therefore, the reasons given by us for our decision in the teachers petition must also govern our decision in this petition.

Decision:
0[ds]In fact even after provincialisation was brought about, the provincialised masters, until January 22, 1960, were not transferable to the State Schools. Since the 1955 Rules did not apply to the provincialised masters, and the two categories of masters were not at any stage fused together, separate rules had to be made for them and conditions of service for them had to be laid down after they were taken over to the Government service. In framing the new rules, the Government expressly provided that the provincialised masters and teachers, should form a separate cadre, which cadre should be a diminishing one which would ultimately vanish leaving the State cadre alone in the Government Educational service. Consequently, when vacancies fell and new teachers and masters were appointed, recruitment was made under 1955 Rules, and as laid down in those Rules by the Subordinate Service Selection Board. Respondents 4 to 236, recruited after October 1, 1957, were, therefore, deemed to have been taken in the State cadre under 1955 Rules and their conditions of service were government by those rules7. That being so, even though these masters appointed in State cadre were posted and served in the provincialised Schools, it made no difference to the fact that the two categories of teachers and masters were distinct and were governed by different sets of rules which laid down conditions of service obtainable to them. Therefore, the mere fact that a master from the State cadre was posted or transferred to a provincialised School did not mean that he should be governed by the Rules governing the provincialised cadre or vice versaThe respondent-Government denied that discrimination resulted either as a consequence, of the two categories being retained as distinct categories, or by the appointments after October 1, 1957 of new masters and teachers in the State cadre or by the provision of transfer of posts from the provincialised cadre to the State cadre in the 1961 Rules. If as a result of the working of these Rules the number of posts in the provincialised cadre gradually decreased with a corresponding rise in the number of posts in the State cadre and posts in the selection grade also underwent a similar variation, it was due to the decision taken by the Government to make the provincialised cadre a diminishing one. But the Government was not bound to combine the two categories into one class, nor was it not entitled to make separate rules for the provincialised masters who were taken over to the Government service particularly since the Government was confronted with several difficult problems in adjusting and fixing inter seniority of the members of the two categories. Since the two categories were governed by different sets of rules and conditions of service obtainable thereunder, each having its own selection grade, even if a member of one cadre got a promotional chance in his own cadre earlier than a member in the other cadre, even though the latter may be junior in service than the former, that did not mean that there was any discriminatory treatment to one against the other. The reason is that the two belonged to different cadres, are governed by different sets of rules and conditions of service and are entitled to promotional chances within their own respective cadresThe fact again was that a person in the State cadre might obtain promotional chances earlier than his counterpart in the provincialised cadre by reason of the provincialised cadre being made a diminishing cadre, a decision to make it so being within the power of the Government. For, the Government was not bound to retain the strength of either of the two categories constant or to make new appointments in the provincialised cadre when vacancies fell therein9. The two categories being thus separate from the very inception and they not having been fused into one integrated class at any stage, there was no question of the Rules of 1971 having brought about any arbitrary classification by splitting up any such integrated class into two or providing differential treatment or any undue of illegitimate preference being given to one against the other10. It is not necessary to dilate any further over the contentions raised by the petitioners since they go over substantially the same grounds as were taken in the teachers petition. Therefore, the reasons given by us for our decision in the teachers petition must also govern our decision in this petition38. The position which emerges from the aforesaid analysis is that prior to October 1, 1957 the two categories of teachers, those serving in the Local Bodies Schools and those in Government Schools were distinct. Though the minimum qualifications and scales of pay might have been uniform, there were differences in other matters such as methods of recruitment, retiral benefits, rules for determining seniority etc. It is also clear that whereas a Government School teacher was liable to be transferred to any place throughout the Commissioners division, a Local Body teacher could only be transferred within the territorial limits of that body. Appointments in Local Bodies Schools, no doubt, were made by Inspectors appointed by Government, but they could do so only in consultation with the Chairman or President of such a body. That was the position also in regard to disciplinary matters. Further, although the prescribed minimum qualifications were the same, in point of fact 50% or more of the Local Bodies teachers were non-matriculates and quite a number of such non-matriculate teachers were also without the qualification of Basic Training as against a few non-matriculates and none without such Basic Training in the Government Schools. In any event the mere fact that minimum qualifications and scales of pay were the same could not mean, in view of other dissimilar conditions of service, that the two categories of teachers formed one class. Indeed, Mr. Tarkunde conceded, as is even otherwise clear, that prior to October 1, 1957 teachers in Local Bodies and in Government Schools did not form one class39. So far as the position on October 1, 1957 is concerned, as already noticed, the Government Schools teachers were and continued to be governed by the Rules of 1955 which, no doubt, came into force with effect from May 30, 1957 and which prescribed the minimum qualifications as Matriculation in addition to Basic Training. Government Schools teachers who under the 1937-Rules, were recruited by the Director of Public Instruction, were since 1954 selected by the Selection Board after their initial pay had been raised form Rupees 471/2 to Rupees 50 per month. The Local Bodies teachers on the other hand, were recruited by Inspectors in consultation with the Presidents or Chairmen of those bodies till July 1957 when fresh appointments in vacancies falling in those Schools were stopped. Under the new Rules of 1955, Government provided for a selection grade for 15% posts. In fact, such a grade was given to them even before 1955-Rules were framed and the new Rules merely continued that benefit. Broadly speaking, the position on October 1, 1957 was that two categories of teachers formed distinct classes. Though they were performing similar duties, they could not be said to form one integrated classIt would perhaps appear from the statement of the Education Minister made at the Press Conference on the eve of provincialisation that Government had in the beginning the idea of bringing about integration between the two types of teachers. But no such concrete decision was ever taken. A few dates at this stage may clarify the position. As aforesaid, the decision to provincialise the Local Bodies Schools was taken on July 19, 1957. In pursuance of that decision, Government on August 2, 1957 placed a ban against any fresh recruitment of teachers in the Local Bodies Schools. On September 27, 1957, the Governor sanctioned the scheme of provincialisation and at the same time sanctioned 20,000 and odd new posts to absorb the existing staff of the provincialised Schools. Simultaneously with the provincialisation, the Government on October 1, 1957 gave the same scales of pay to the provincialised teachers as were available to Government Schools teachers. The problem, however, was how to fix and adjust the provincialised teachers in Government service and fix their inter se seniority as also their seniority vis-a-vis the Government Schools teachers41. It is fairly clear from the memorandum published along with 1961-Rules that Government was seeking to discover a proper formula to solve these questions. This process was, it appears, going on since November 23, 1959 when alternative proposals were framed for discussion and those proposals were communicated to the recognised associations of the teachers. Since no agreed consensus was forthcoming from the teachers themselves, Government formed its own decisions as formulated by the Secretary, Education Department in his letter of January 27, 1960 to the Director Public Instruction. These decisions were made around three basic principles; (i) that the two cadres will continue to be separate as before, (ii) that the provincialised cadre would be a disminishing cadre, and (iii) following upon (i) and (ii), vacancies arising as a result of promotions, retirements, resignations etc. in the provincialised cadre should be transferred to the State cadre so that ultimately after about 30 years the provincialised cadre would vanish altogether leaving the State cadre alone in the field. These events leave no doubt that at no time after October 1, 1957 any decision for integrating the two categories of teachers was taken although after October 1, 1957 new teachers were appointed and posted in both the provincialised as well as Government Schools who carried out the same duties and were given the same scales of pay as the provincialised teachers. But such new teachers had to be deemed to have been appointed in the State cadre by reason of the two principles decided upon by Government, (i) the diminishing character of the provincialised cadre and (ii) that cadre having been frozen from even before October 1, 1957. Thus, the two categories continued to be separate and were never integrated. The Government Schools teachers and those appointed after October 1, 1957 were governed by 1955-Rules while the provincialised teachers continued to be presumably governed by the District Boards Rules until new rules were framed, for them by Government. Thus the Rules of 1961 could not be said to have split up the teachers, who formed one integrated cadre into two new cadres. These Rules had to be made as the inter seniority among provincialised teachers appointed by different Local Bodies in different districts had to be determined and their position in the service had to be adjusted. The Rules were framed on the principles formulated in the decisions taken by Government on July 27, 197042. The new Rules were made retrospective as from October 1, 1957 and applied to the teachers provincialised as from that date.Such teachers under these Rules formed a cadre by themselves, called the provincialised cadre. Under Rule 3 (i), teachers appointed in vacancies in the provincialised Schools were to be borne on the State cadre. This was because the provincialised cadre was already frozen and since the cadre was to be a diminishing cadre, the new appointments made after provincialisation could not be treated as borne in that cadre Cl. (ii) of R. 3, however, preserved the number of selection posts in the provincialised cadre for teachers in that cadre but an equal number of posts in the ordinary pay scale falling vacant as a result of promotions to the selection grade were transferred to the State cadre. So also the posts which were vacant on October 1, 1957 and which were not to be filled in were transferred to the State cadre. Clause (iii) of rule 3 sought to work out the principle of the provincialised cadre being a diminishing one in a phased manner by providing the transfer of ordinary posts falling vacant in future due to promotions, retirements etc. to the State cadre. This was done by splitting up such vacant posts into blocks of seven and six posts by rotation. The blocks system provided that all selection grade posts in the first six vacancies in each block of seven and first five vacancies in each block of six were to continue to be borne on the provincialised service but an equal number of posts in the ordinary grade together with other vacancies in that grade were to be transferred to the State cadre, and so also the last vacancy in each such block was to be transferred to the State cadre. The provision of blocks of 7 and 6 was made for working out the principle of the cadre being a disminishing one. The blocks of 7 and 6 meant that one post out of 7 vacant posts and one out of 6 vacant posts was transferable by rotation to the State cadre. But the percentage of 15 for selection grade posts was kept intact43. It will be observed that though the provincialised teachers were given the same scales of pay as the teachers in the State cadre, the Rules provided that unlike the latter they could be transferred only within the District where they were serving. Those who were already confirmed prior to the provincialisation were also deemed to be confirmed under these Rules. That meant that for purposes of their seniority their entire service, including service before such confirmation would be taken into account except that inter se seniority of those promoted to the selection grade was to be determined from the date of their confirmation in that grade44. Thus, although the teachers in both the cadres were given the same scales of pay and did the same kind of work and those appointed after October 1, 1957 were posted and worked in the same provincialised schools as teachers in the provincialised cadre., the fact was that the State cadre, teachers were and continued to be governed by 1955-Rules while the provincialised teachers were governed by 1961-RulesThis fact, coupled with the fact that one was a district and the other a divisional cadre, meant that the two cadres continued to be separate cadres as before.The principal effect of the new Rules, however, was that the number of posts in the cadre would gradually disminish and together with that the total number of posts in the selection grade, despite the percentage of 15 remaining intact. But that was the inevitable result of the freezing of the cadre, on the one hand, and its being a diminishing cadre on the other. The State cadre became correspondingly an expanding cadre, the total number of posts for all the schools, government and provincialised, remaining more or less constant44. Thus, although the teachers in both the cadres were given the same scales of pay and did the same kind of work and those appointed after October 1, 1957 were posted and worked in the same provincialised schools as teachers in the provincialised cadre., the fact was that the State cadre, teachers were and continued to be governed by 1955-Rules while the provincialised teachers were governed by 1961-RulesThis fact, coupled with the fact that one was a district and the other a divisional cadre, meant that the two cadres continued to be separate cadres as before.The principal effect of the new Rules, however, was that the number of posts in the cadre would gradually disminish and together with that the total number of posts in the selection grade, despite the percentage of 15 remaining intact. But that was the inevitable result of the freezing of the cadre, on the one hand, and its being a diminishing cadre on the other. The State cadre became correspondingly an expanding cadre, the total number of posts for all the schools, government and provincialised, remaining more or less constant45. However, in judging the Rules and the results flowing from their implementation, it has to be borne in mind that the ratio of 85 to 15 for ordinary and selection grades was not abrogated. It is true, as Mr. Tarkunde pointed out, that as time went on the actual number of the higher grade posts in the provincialised cadre would diminish as the total number of ordinary posts in that cadre diminished and correspondingly the number of higher posts in the State cadre would increase as ordinary posts therein increased. That was the result of the two principles accepted by Government, that of freezing the provincialised cadre and making it a diminishing one. Nevertheless, in the earlier years the number of selection grade posts available in this cadre would be larger than in the State cadre because of the large number of posts therein at that stage, viz. 20,000 and more. In addition, selection grade posts in the State cadre would go to the provincialised teachers, at least in the beginning, because of the decision that the rule of five years experience for promotion was to be rigidly followed, and therefore, sufficient number of persons in the State cadre with that seniority might not be found47. The principles on which discrimination and breach of Arts. 14 and 16 can be said to result have been by now so well settled that we do not think it necessary to repeat them here once again. As already seen, ever since 1937 and even before, the two categories of teachers have always remained distinct, governed by different sets of rules, recruited by different authorities and having, otherwise than in the matter of pay scales and qualifications, different conditions of service. This position remained as late as Feb. 13, 1961. On that day where as the State cadre teachers were governed by 1955-Rules, rules had yet to be framed for the provincialised teachers. The two cadres thus being separate, Government was not bound to bring about an integrated cadre especially in view of its decision of making the provincialised cadre a diminishing one and bringing about ultimately through that principle on cadre only in the field in a phased manner. If through historical reasons the teachers had remained in two separate categories, the classification of the provincialised teachers into a separate cadre could not be said to infringe Art. 14 or Art. 16. It was also not incumbent on the Government to frame the 1961-Rules uniformly applicable to both the categories of teachers, firstly, because a rule framing authority need not legislate for all the categories and can select for which category to legislate, (see Sakhawat Ali v. State of Orissa, (1955) 1 SCR 1004   = (AIR 1955 SC 166  ), Madhubhai Amathalal Gandhi v. Union of India, (1961) 1 SCR191 = (AIR 1961 SC 21  ) and Vivian Joseph Ferreira v. Municipal Corporation of Greater Bombay, (1972) 1 SCC 70   = (AIR 1972 SC 845  ) and secondly, because it had already come to a decision of gradually diminishing the provincialised cadre so that ultimately only the State cadre would remain in the service. That was one way of solving the intricate difficulty of inter se seniority. There can be no doubt that if there are two categories of employees, it is within Governments power to recruit in one and not recruit in the other. There is no right in a government employee to compel it to make fresh appointments in the cadre to which he belongs. It cannot also be disputed that Government had the power to make rules with retrospective effect and therefore, could provide therein that appointments made between October 1, 1957 and February 13, 1961 shall be treated as appointments in the State cadre. That had to be done for the simple reason that the provincialised cadre was already frozen even before October 1, 1957 and Government had decided not to make fresh appointments in that cadre since that cadre was to be a diminishing one48. In Joginders case, (1963) Supp 2 SCR 169 = (AIR 1963 SC 913  ) the argument urged on behalf of the respondent was based substantially on the same premise as the one urged by Mr. Tarkunde. That was that on becoming the State employees on October 1, 1957 and on their being given the same scales of pay and grades and the same promotional chances, the two categories became one integrated service. It was on that premise that a contention was raised that the Rules by splitting up such a service infringed Arts. 14 and 16 (1). The majority rejected those arguments by pointing out, (i) that pension rules for the two services were different, for the State cadre the 1955-Rules and for the provincialised cadre the rules framed in October 1958; (ii) that rules for determining seniority inter se of the members of the two services were dissimilar; (iii) that there was no provision in the Memorandum of September 27, 1957 by which the Local Bodies schools were taken over expressly providing for integration and (iv) that whereas matriculates with five years experience was a necessary qualification for promotion to selection grade for State cadre teachers, that was not so for the provincialised teachers. The majority held on the basis of these dissimilarities that though the provincialised teachers were given the same scales of pay and grades, save this equality, there was nothing more that was contemplated or provided by the said Memorandum dated September 27, 1957 and the question of the precise status of the provincialised teachers and their relationship vis-a-vis the State cadre teachers was yet to be determined. The majority accordingly held that it was not the 1961-Rules which created the two services but that they were there independently of them and that the real grievance would be that the Rules did not integrate the two into one service. With respect to the other argument that even the retention of two parallel services with similar scales of pay and grades, the same functions and liability to be transferred from one to the other type of schools, was by itself discriminatory, the Majority relied on the Governments counter-affidavit which pointed out the differences in the rules governing the two services, viz., (a) in the minimum qualifications, and (b) recruitment authorities. The majority observed that these differences were not controverted by counsel for Joginder Singh in the High Court, who also had abandoned there his contention about differentiation of the two services being per se discriminatory. The majority pointed out that such abandonment itself negatived the submission that recognition of the two services as independent cadres was discriminatory, once the premise about their having been integrated was rejected. They also rejected the further contention that the State could not constitute two services of employees doing the same work but with different conditions of service and the postulates underlying it, viz., that equal work must receive equal pay and if there be equality in pay and work, there have to be equal conditions of service. The reason for the rejection was that since the Government had to carry on administration, it must in the wider public interest have a choice in the constitution of services to man such administration. The conclusion reached by them was that "the two services started dissimilarly and continued dissimilarly and dissimilarity in their treatment would not be a denial of equal opportunity, for it is common ground that within each group there is no denial of that freedom guaranteed by the two Articles". (p. 193) They finally held that Government was entitled to make the provincialised cadre a diminishing one for there is no right in an employee to require the government to strengthen or expand or to make future appointments in the cadre in which he is servingWe do not think that such an argument can be accepted. So far as the first limb of that argument is concerned, it may be said that under the District Boards Rules and the Education Code, the minimum qualifications were to be the same as those prescribed for Government schools teachers. But even if that was so, it cannot be gainsaid that on October 1, 1957 there were at least 50% of the provincialised teachers numbering more than 10,000 as against 22 out of 107 government schools teachers, who were non-matriculates and quite a number of them untrained, and actuality which must have been present before Government when it decided to keep the two services separate. Regarding the second limb of the argument, the statement that the block system reduced the rigour of R. 3 was not the basis for upholding its validity. That rule was sustained on more substantial grounds, viz., that there never was any integration of the two services, that those services were dissimilar, that Government was entitled to retain them as separate, that it was also entitled to make the provincialised service a disminishing cadre and not be keep up its existing strength in view of its decision that it had to vanish gradually leaving ultimately the State cadre in the field, and lastly, that if the number of selection posts in the provincialised cadre got reduced as time went by it was the direct result of the principle of that cadre being a diminishing one against which no objection on the ground of discrimination or unequal opportunity could be sustained. The minority differed from the majority view because of the assumption it started with that there was an integration of the service when the provincialised teachers were given the same pay and grades, the same kind of work and when teachers from both the services could be posted in either Government or provincialised schools. With great respect to the learned Judges in the majority, the analysis made by us of the different rules, orders and memoranda clearly supports the majority view that the two services were not similarly situated, that there was no integration at any time and for the reasons given by us earlier they were kept separate as the other alternatives before Government were found neither just nor proper. We are of the view that the majority decision does not need reconsideration50. Respondents 6 to 36 were originally teachers in the Nai Talim Sangh schools conducted by the rehabilitation department of the Central Government. These teachers were taken over long before provincialisation, and were therefore placed in the State cadre as from October 1, 1957 being already on that date in Government service. Once it is found that there had been no integration of the various categories of teachers, and what the Government did was merely to continue those services as separate as before, teachers in one category cannot complain of discrimination in regard to teachers in another category. It may be noted in this connection that the ex-Nai Talim School teachers were governed by 1955-Rules on their being taken over by Government. Consequently, their previous service in those schools was not taken into account for the purpose of seniority, unlike the provincialised teachers whose seniority was determined on the basis of continuous service. It is also of some interest to find that whereas only six non-matriculates from the Nai Talim Sangh teachers have been promoted to the selection posts as many as 315 non-matriculates from the provincialised cadre have been promoted to the selection grade in Gurgaon District alone51. Regarding respondents 37 to 96, all of them were appointed after provincialisation. They are junior in service than the petitioners and some others in the provincialised cadre. But their case is not comparable, for, they were appointed under 1955-Rules and through the recruitment authorities prescribed under those rules, i.e., the Selection Board. Obviously, they could not be appointed in the provincialised cadre as that had been frozen even before October 1, 1957. They may have been posted in the provincialised schools but that cannot mean that they were appointed in that cadre. Their appointment being in a separate cadre, it is impossible to say that they were similarly situated. By reason of their recruitment in the State cadre, their conditions of service, including their promotional chances and their seniority would be governed by 1955-Rules and would only be comparable to those in that cadre only52. The impugned letter dated January 5, 1968 merely communicated the Governments decision to revise the scales of pay with effect from December 1, 1967. This was as a result of Government accepting the recommendations of Kothari Commission. The revised scales are now Rs. 125- Rs. 250 for the ordinary grade and Rs. 250 to Rs. 300 for the selection grade. Actually, therefore, the teachers in both the cadres stand to gain under the revised scales. It is difficult to appreciate how such a revision works out in any discriminatory way. Teachers in both the cadres continue to get their promotional chances in the same proportion of 85: 15 according to their seniority in their own cadre. In the case of the provincialised cadre, seniority is counted on the principle of continuous service which includes temporary or officiating service before confirmation, while in the case of the State cadre, it is counted from the date of confirmation. Besides, seniority among provincialised teachers is maintained on district level, while that in the State cadre on divisional level as they are transferable within the entire division. The seniority lists which are challenged in this petition are made on the principles above stated, and on the basis of the two cadres being separate. Once the 1961-Rules are upheld, a challenge to the lists can scarcely be maintained53. To sum up the position, the two services were from as early as 1937 and before separate. At no stage, even after provincialisation was decided upon and the principles of its implementation were drawn up there was any integration of the two. In fact, after considering the alternatives which the Government had before it, it opted, on consideration of difficulties on integration, for the alternative of keeping the two separate. Since the State cadre had its own Rules of 1955, the Government decided in 1960 upon certain principles upon which Rules could be framed for the provincialised cadre. The real grievance of the provincialised teachers could be not that an integrated service was split into two by the Rules but that the Rules did not combine the two. No principle under Art. 14 or Art. 16 is involved if such an integration was not brought about, for, considering the past history of the two services and the differences existing between them, Government could not be required to fuse them into one upon any principles emanating from the two Articles. The decision to make the provincialised cadre a diminishing one, to implement which that cadre had to be closed at one end, aimed at seeing the provincialised cadre gradualy vanish leaving approximately at the end of 30 years the State cadre alone in the field. There is nothing in either Art. 14 or Art. 16 under which Government could be compelled to maintain that cadre in its original strength or make fresh appointments in that cadre. The logic of Government decision to make the provincialised cadre a diminishing one was that as the posts in that cadre gradually diminished, the number of selection posts also diminished. The proportion of 85 : 15, however, remained intact, and teachers in both the cadres according to their seniority continued to obtain their promotional chances. No injustice in this process could justifiably be claimed as when the posts in the provincialised cadre were larger in number, its members got a larger number of selection posts. The block system in rule 3 was devised to implement the process of diminution in a phased manner. Whether the ratio of 11/13 resulted from it or not is not material, for once the principle of that cadre being a diminishing one is accepted as not violating the rule in Art. 14 or Art. 16, and so long as 15% remained untouched, the block system is no more than a method to further the process of diminution. The two service thus being separate both before and after provincialisation and there being no complaint about dissimilar or arbitrary treatment among members of the provincialised cadre, it is difficult to appreciate the grievance of discrimination or the denial of equal opportunity. The conclusion on the reasons hereabove given is that no infringement of either of the two Articles is involved in this case.