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

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 Schools4. 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 cadre5. 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 appointments13. All the four petitioners are Matriculates Trained teachers and were respectively appointed in the former Local Bodies Schools on November 29, 1956, October 1, 1955, May 10, 1951 and September 14, 1957. Respondents 6 to 36 were originally teachers in schools conducted by Nai Talim Sangh run with Central Government funds by the Faridabad Town Development Board, which schools, together with their staff, were taken over by the then State of Punjab with effect from October 1, 1957. Respondents 37 to 96 were appointed on and after July 16, 1959 and posted in schools which were provincialised as stated above, and therefore, junior in service to the petitioners and several others appointed in Local Bodies schools prior to their provincialisation14. Briefly stated, the petitioners case was that prior to October 1, 1957 when the then State of Punjab provincialised the primary schools there were mainly two types of schools, viz., (a) schools run by District and Municipal bodies, and (b) Government schools, besides of course the Nai Talim Sangh schools and the schools in Pepsu area which had merged in the State in 1956. As a result of the Government taking over class (a) schools, all primary schools throughout the State became Government schools and the teachers serving therein became the Government employees. According to the petitioners, the effect of provincialisation of these schools was that all teachers henceforth were brought into a common service, performing the same functions and duties under the same authority, viz., the States Education Department. Teachers appointed after October 1, 1957 were posted in both the types of schools and were naturally junior to those appointed earlier in the schools run by the Local Bodies15. The impact of provincialisation was that all of a sudden, as from October 1, 1957, about twenty thousand and more teachers became government servants. The very first problem arising from this impact was how to fix (a) inter-seniority of teachers serving till then in the provincialised schools in different districts, and (b) inter-seniority between the provincialised teachers vis-a-vis the Government schools teachers16. On February 13, 1961, the Government published the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961 under Art. 309 of the Constitution. These rules distinguished the provincialised teachers as teachers in provincialised cadre and the rest in the State cadre. Service for the purpose of these Rules meant the Punjab Educational (Provincialised Cadre) Class III Service (R. 2). These rules were based on the principle of the Provincialised Cadre being a diminishing cadre. The principle was that this cadre as time passed would gradually diminish in the number of posts ultimately becoming extinct within about 30 years, so that, at the end of that period there would remain only the State cadre in the field.In pursuance of that principle, R. 3 (I) provided that all posts created for any provincialised school subsequent to its being taken over by the Government shall not constitute part of the service, i.e. provincialised cadre, but will be borne on the State cadre. Rule 3 (ii) then provides as follows:(a) All such posts of Headmasters as well as of masters or teachers, in selection grades of the service, as were vacant on October 1, 1957 shall continue to be borne on the service but an equal number of posts in ordinary pay scales in the relevant cadres of the service falling vacant as a result of promotion to the posts of Headmasters, masters and teachers in the selection grade shall be transferred to the State cadre(b) All such posts of masters and teachers, in ordinary pay scales of the service, as were vacant on October 1, 1957, shall be transferred to the State cadre3 (iii) the posts in various cadres of the service falling vacant due to the normal incidence of promotions, retirements or any other cause subsequent to the date of provincialisation of local authority schools shall be adjusted in the following manner:(a) All vacant posts of masters as well as of junior teachers in the service shall be separately split up into blocks of seven and six posts by rotation. All selection grade posts in the first six vacancies in each block of seven and first five vacancies in each block of six shall continue to be borne on the service, but an equal number of posts in ordinary pay scales of masters or junior teachers as the case may be, together with other vacancies in ordinary pay scales in each block shall be transferred to the State cadre. The last vacancy in each block shall be transferred to the State cadreProvided that if the last vacancy in the block is not in the selection grade one other post in the selection grade from within that block shall be transferred to the State cadre, and if adjustment within the same blocks is not possible it shall be made in the next following block but in no case in any block thereafter:(4) Liability to transfer Members of the service who are borne on a State wide cadre may be posted in any Government or provincialised school throughout the State and members of the Service who are borne on Districtwise cadre may be posted in any Government or provincialised school throughout that district:(5) Confirmation Members of the Service who were confirmed prior to the provincialisation of local authority schools shall be deemed to have been confirmed in the service:Provided that such Headmasters/Headmistresses of High Schools as were officiating or temporary immediately before the provincialisation of local authority schools shall not be confirmed in the service unless they qualify such departmental test as may, from time to time, be prescribe by the Director(7) Appointing authority; All appointments to the posts in the Service shall be made by the director and for the purpose of imposing of punishment of dismissal or removal from service the members of the service holding appointments at the time of commencement of these rules shall be deemed to have been appointed by the Director(8) Method of Recruitment:(1) Posts in selection grades left over after the transfer of posts to the State cadre as specified in rule 3 shall be filled by promotions from lower grade of the cadre:Provided that no member shall be promoted to selection grade of the service unless he possesses the qualifications and experience as specified in appendix (b):(2) All promotions, whether from one grade to another or from one class of service to another, shall be made on the basis of seniority-cum-merit and person shall be entitled to claim promotion on the basis of seniority alone(9) Seniority of members of Service:(b) The seniority inter se of the members of the service shall be fixed according to the length of continous service whether temporary, officiating or permanent, in the equated posts as on the 1st October, 1957part from the Local Bodies schools and the Government schools which existed during the pre-October 1, 1957 period, the Punjab State as a result of the merger of Pepusu area in 1956 had also Government schools working in that region. The position, therefore, on October 1, 1957 was as follows: (i) teachers in Punjab Government schools- 107, out of whom 85 were Matriculates Trained teachers; out of the remaining 22 non-matriculates, 20 were Trained teachers, (ii) Teachers in Pepsu schools-5,822, out of whom 4,325 were matriculates, and 3,236 were also Trained teachers 1,037 were, thus, nonmatriculates, but 886 of them were Trained teachers. Thus there were only 151 non-matriculates non-trained teachers amongs the pepsu teachers; (iii) teachers in Local Bodies schools - 20,700, out of whom nearly 50% (10,214) were non-matriculates. In Gurgaon District, there were no Government schools, but only Local bodies schools, whose teachers numbered 1, 517. Of them, 97 were in schools conduced by Municipal Bodies and the rest, i.e., 1.420 in District Boards schools26. Teachers in Local Bodies schools were governed by the District Board Rules, 1926 framed under the Punjab District Boards Act, 1883.These rules provided that every District Board shall be bound by rules contained in the Punjab Education Code so far as they applied to the Local Bodies. Article 48 of that Code provided that questions relating to the appointment, promotion, leave dismissal, transfer etc. of the teachers employed in the schools maintained by local bodies shall be disposed of by Inspectors appointed by the education Department, but in consultation with the President, Executive Officer or chairman of the Local Body concerned. Likewise, teachers in Gurgaon District were governed by the Gurgaon District Board Rules, 1934, rule 6.2 (f) and 8.1 whereof laid down that qualifications for teachers shall be the same as provided by the Departmental Rules for the time being in force and conditions of service of such teachers were to be in accordance with rules made from time to time for the Government servants. The pay scale for the junior teachers in these schools under the District Board Servants Conduct Rules, 1926, as amended from time to time in the Local Board Code was Rs. 47 1/2 - Rupees 117 1/2. The teachers were in three grades, 50% in ordinary grade, 35% in the middle and 15% in the third or the selection grade with the pay scale of Rs. 140-220. Thus, the division of the grade in the ratio of 85 : 15 appears to have existed in the District Board schools and the Government schools from the very beginning27. The Punjab Subordinate Educational Service Rules, 1937 governed the junior teachers in Government schools. R. 4 of those rules provided that appointment of teachers was to be made by the Director of Public Instruction. The Rules also provided that appointees could not be more than 25 years of age. The scale of pay for junior teachers was the same as that of the corresponding Local Bodies teachers. The Rules did not also appear to have provided that the appointees had to be matriculates, though for masters the rules prescribed that the recruits had to be B.A., S.AV. (or B.T.) Since those rules did not provide Matriculation as the minimum qualification, there could be non-matriculate teachers in Government schools as there were such non-matriculates in the Local Bodies schools. The difference between the two kinds of schools factually, however, was that on October 1, 1957 whereas in the Government schools there were only 22 non-matriculates out of the total number of 107 teachers, nearly 50% of the teachers in Local Bodies schools were non-matriculates28. By a Memorandum, dated April 18, 1952, Government accorded sanction with effect from April 1, 1951 allowing an initial salary of Rs. 50 per month to a Matric, Basic Trained teacher. By another Memorandum, dated June 21, 1955 the initial pay was raised to Rs. 57 1/2 per month for Matric, Basic Trained teachers with effect from April 1, 1953. In the meantime Government had set up a Subordinate Service Selection Board to select Government employees drawing a monthly salary of Rs. 50 and upwards. An advertisement, dated November 25, 1954 issued at the instance of the Board for recruitment of 34 junior basic teachers pointed out that recruits would be given the initial pay of Rupees 57 1/2 in the scale of Rs. 47 1/2 - Rs. 117 1/2, but then the qualification would be Matric-Basic Trained and the age limit not more than 30 years. The result of these changes was (i) that with the rise in the pay grade, teachers in Government schools hence forth were recruited by the Board, and (ii) Matric, Basic Trained Recruits were given a higher initial pay29. In 1955, Punjab Educational Class III School Cadre Rules were made superseding the 1937 Rules. These Rules prescribed for the matriculation and Basic Education Training as the minimum qualification. They were, no doubt, brought into force with effect from May 30, 1957. But, on October 1, 1957, when provincialisation was brought about, they were in force as against the Rules governing the Local Bodies Schools which did not prescribe these minimum qualifications. It may be that by reason of the District Board Rules of Business, 1926, the qualifications required by the 1955 Rules would also apply to teachers recruited in the District Boards schools also,. But as we have seen, there was on October 1, 1957 as many as 50% of teachers in those schools who were non-matriculates, of whom quite a number were also non-trained. This was then the position on the eve of Governments decision to provincialise the Local Bodies schools30. On July 19, 1957 the Government communicated to all the Local Bodies its decision to provincialise schools run by those Bodies. The communication directed them not to appoint new teachers or to upgrade the existing schools and not to fill up vacancies, if any had fallen, except on temporary basis for three months only. On July 23, 1957, Government revised the pay scales of all low paid Government servants with effect from May 1, 1957. This order divided Government school teachers according to their qualifications into two main categories; Category (A) - Graduate teachers: 85% ordinary and 15% selection, and Category (B) Matriculates with Basic Training. Category (B) was divided into three grades: Lower with a scale of Rs. 60 - Rs. 120, Middle with a scale of Rs. 120 - Rs. 175 and upper with a scale of Rs. 140 - Rs. 250. Both the categories had thus two grades, ordinary and selection in the proportion of 85% to 15%. The percentage of 85 to 15 and the division into two grades, ordinary and selection, thus, subsisted in Government schools before provincialisation was brought about31. On September 27, 1957, Government issued the order provincialising the schools till then conducted by Local Bodies with effect from October 1, 1957 and of taking over the existing teachers and others members of their staff. The order announced that their scales of pay would be fixed under the Rules which would be framed, but that in any case there would not be any drop in their present emoluments. Three days later the Education Minister announced at a Press Conference that Government had taken this decision with a view to ameliorate the conditions of teachers in Local Bodies schools by bringing their scales of pay to the level of Government school teachers, that it felt that, that could be done by provincialising those schools, that its decision was a big step involving 10,161 schools and 25,674 junior teachers bringing them all under Government control and their pay brought to the level of their counterparts in Government schools involving thereby an annual expenditure of Rs. 525 lacs. The statement also announced that provincialisation meant that all those teachers would be henceforth Government employees with grades of pay the same as those of the Government school teachers, that recruitment henceforth would be made according to Rules which would be made, and that principles governing their integration with the Government schools teachers would be formulated32. The question as to what principles for fixing the inter seniority amongst the provincialised teachers serving in different districts and the inter seniority between them and the Government schools teachers should be formulated was engaging the attention of Government after provincialisation. On January 27, 1960, the Education Department wrote to the Director of Public Instruction coveying the Governments decision in the matter of joint seniority of various categories of teachers and fixation of cadres. The decision was that (i) inter seniority of provincialised teachers, masters and headmasters should be determined according to the principles laid down in Annexure A thereto; (ii) the staff of the two categories of schools should be kept in separate cadres; (iii) all new recruits appointed after October 1, 1957 should be deemed to have been appointed in State cadre, (iv) the provincialised cadre would be a continuing diminishing cadre and would in course of time completely vanish leaving only the State cadre; (v) keeping the two cadres separate would secure the same promotional chances to the State cadre teachers as before; at the same time provincialised teachers would get promotional chances to a larger number of posts by reason of their larger number within their own cadre; (vi) there would be no administrative difficulty in regard to transfer of teachers, whether a government or a provincialised school inasmuch as barring the question of future promotions there was no longer any difference between the two in the matter of pay scales, type of work and other conditions of service; (vii) the two cadres will be known as "State Cadre" and "provincialised cadre" and vacancies falling in the provincialised cadre as a result of retirement, promotions etc. would be transferred to the State cadre; and (viii) the provincialised cadre staff will be districtwise, while state cadre staff will be divisionwise, such an arrangement making the fixation of inter seniority easier. The letter requested follow-up action on the basis of these decisions and suggested that these decisions should be circulated amongst the recognised associations of teachers for their information33. The memorandum dated February 13, 1961 published in the Gazette along with the Rules as an explanation clearly set out the problems confronting Government as a result of provincialisation. The main problem was one of determining seniority of provincialised teachers vis-a-vis the existing Government schools teachers and also among the provincialised teachers themselves serving different schools in different districts appointed by different Local Bodies in those districts. As the memorandum pointed out, there were three alternatives before the Government; (a) counting of full service of the Local Bodies teachers for determination of joint seniority; (b) Integration of the two services in a joint cadre on the basis of counting the service of the Local Bodies teachers from the date of provincialisation, and (c) continuing the two cadres separate as before34. Adoption of alternative (a) would have meant counting the full service of the Local Bodies teachers for determining seniority. This was found to be unfair for several reason; (a) in the past, when some of the Local Bodies schools were taken over by Government, the rule followed was that services of the extant teachers taken over to government service were for purposes of fixing their seniority counted only from the date of their joining government service and their previous service with the local bodies was not counted (b) Recruitment to Government schools used to be made through the Selection Board. Several Local Bodies teachers used to apply but were rejected as their qualifications were lower. These very teachers would be now senior to those appointed then as their full service would be counted, although they had lower qualifications and were on that ground actually rejected, (c) Even otherwise, those recruited through the Selection or such other Board had better qualifications and they would suffer since full service of the Local Bodies teachers would be counted. The future chances of promotion of Government schools teachers would thus suffer in spite of their possessing better qualifications. Alternative (a), therefore, was found unacceptable35. Alternative (b) was equally unacceptable as the provincialised teachers would have to be placed at the bottom of the existing Government schools teachers with the result that all promotional posts would go to the latter. Thus the very purpose of provincialisation, viz., of their amelioration, would be frustrated. Only alternative (c) was, thus, left for acceptance. It meant the continuation of the position which actually subsisted on October 1, 195736. Considering the conflicting interests of the two services, their unions and associations including those representing the Pepsu teachers were afforded an opportunity to place their points of view. They were, however, not able to agree to any formula. Government, therefore, decided upon acceptance of the third alternative and continued the two separate cadres as before. It also accepted the principle of the provincialised cadre as a diminishing cadre. The memorandum pointed out that it was in view of these considerations that Government decided that (I) teachers in the provincialised and the erstwhile Government schools should be kept in separate cadres, (ii) all higher grade posts created on October 1, 1957 directly due to provincialisation would go by promotion to the teachers in provincialised cadre, (iii) provincialised cadre would be a disminishing cadre and therefore all future recruitment would be in the State cadre, (iv) all vacancies due to retirement, promotion etc. in the provincialised cadre would be transferred to the State cadre. In the State cadre posts would be transferred in the established ratio of 15 : 85. The number of posts in the higher grades released as a result of retirements, promotions etc. in the provincialised cadre minus those transferred to the State cadre would be utilised for promotion in the provincialised cadre, (v) some of the Local Bodies schools were taken over for the ten years only together with their staff. Their position being uncertain and in the event of retransfer of those schools to the Local Bodies, it would be convenient to retransfer them to those Bodies, if the provincialised cadre was kept separate. At the same time it was possible that new recruits might have to be appointed for such schools. If and when such Schools were retransferred it would not be feasible to compel those Local Bodies to take over the new appointees. Therefore, it was decided that all new recruits appointed after October 1, 1957 should be borne on the State cadre; (vi) the question of promotion to the higher grades due to the provincialisation was one more problem that had to be solved. The representatives of provincialised schools teachers insisted that all posts created on account of provincialisation should be utilised for promotion among those in the provincialised cadre and that only future higher grade vacancies should be filled up in proportion to the strength of the two cadres. This proposal was found unjustified and was rejected, (vii) Another problem was the posibility of premature promotions in either of the two cadres. With the increase in the number of posts in the State cadre all the existing members in that cadre would get the 15% posts in the higher grade. To avoid that possibility it was decided that before a teachers was promoted from the ordinary to the selection grade, he had to have at least five years service to his credit37. The implementation of these decisions would mean that a good number of posts in the selection grade in the junior teachers cadre in Ambala / Julundar Division would fall vacant Therefore, it was decided that"in order to further improve the chances of promotion of J.B.T./J.T. teachers borne on the provincialised cadre it was considered necessary that the condition of minimum experience should be rigidly enforced and the number of selection grade posts which could not be filled up by promotion from within the Division cadre of the State teachers may be filled up by promotion from among the provincialised teachers on the districtwise cadre."meant that over and above 15% posts reserved in the higher grade in their own cadre, the provincialised teachers, by reason of their long service, would get some more higher grade posts from the 15% ratio in the State cadre as well. This decision was intended to effect (a) acceleration of the diminishing process of the provincialised cadre as posts falling vacant as a result of such extra promotion would be transferred to the State cadre, and (b) bring about satisfaction among teachers in the provincialised cadre by affording them these extra promotional chances56. Education in Punjab from the Primary to the Secondary stage was the principal concern of the local bodies both before and after partition. On 1-10-1957, which is an important date for the purposes of these petitions, the local bodies namely the Local Boards and Municipalities were running 321 High schools, 762 Middle Schools and 9,008 Primary schools and one Training Institution. The teachers employed in the High Schools and Middle schools were generally known as Head Masters and masters and their number exceeded 2,400. The Primary school teachers numbered 20,709. Besides these schools run by the local bodies, there were also some schools run by the State Government but they were very few and the teachers employed therein were also few57. In the middle of July, 1957 several important decisions were taken by the Punjab Government with regard to education in the State. The Government decided to take over all the educational institutions of the local bodies and also the personnel thereof. The Council of Ministers accepted the suggestion on 17-7-1957 that all non-graduate teachers like the Primary school teachers in the State schools should be placed in the District cadre and that the further recruitment of such teachers should be at the district level. By a directive dated 19-7-1957 the Government asked the local bodies that they should not open new schools or appoint new teachers with effect from 1-7-1957 because Government had decided to take over all the local bodies schools with effect from 1-10-1957. This take over is described as provincialisation of the schools58. So far, the pay scale of Masters was Rs. 110-8-190-10-250 and that of the Primary school teachers who were also know as vernacular teachers or junior teachers Rs. 60-4-80-5-120. The Government took a decision that there should be two grades in each of them, 85% of the posts being in the lower grade and 15% in the higher grade which is also known as the selection grade. The higher grade for Masters was Rs. 250-10-300 while that for the junior teachers Rs. 120-5-175/-. This decision was made applicable both to the teachers of the provincialised schools and the teachers from the State schools on 1-10-195759. Since posts in the schools of local bodies were falling vacant by reason of death, retirement, promotion and the like the Government by their letter dated 2-8-1957 permitted the appointment of qualified and trained persons against vacant posts but strictly on a temporary basis till 1-10-1957. These posts were to be treated as being vacant on 1-10-195760. On 27-9-1957 the Director of Public Instructions, Punjab, conveyed the sanction of the Governor of Punjab to provincialise all Municipal Boards and District Boards schools with effect from 1-10-1957. By this order, Government created new posts for absorbing all the staff, including the teachers of the schools of the local bodies and declared what should be the scales of pay for these posts. It further declared that the incumbents of the local bodies schools to be provincialised with effect from 1-10-1957 will be given the same grades of pay and other allowances as are given to their counterparts already in Government employ. "Their pay will be fixed under the rules and there will be no drop in their present emoluments.61. With a view to explain the new policy of the Government the Education Minister issued a Statement on 30-9-1957 to the effect that all provincialised teachers would enjoy the status of full-fledged Government employees, that they would be given the same grades of pay as were given to their counter-parts already in Government service, that a joint seniority list of local bodies teachers would be drawn up in accordance with the rules and that principles were being formulated with a view to govern their integration with their counter-parts already in Government service. The policy statement shows that the Government wanted to integrate and have one unit of service and with that end in view, principles were being formulated62. Apparently, it took a long time for the Government to come out with its formulation of principles. In the meantime posts in the provincialised schools were falling vacant and new teachers were required to be employed. Promotions had to be effected and the posts which the Government has asked the local bodies not to fill permanently by their letter dated 2-9-1957 had also to be filled on a permanent basis. Those who were temporarily employed in those vacancies by the local bodies were called for interview and selection by the Subordinate Services Selection Board of the Government. It may be noted here that the primary teacher Ganpat Rai, who is petitioner no. 4, was interviewed and selected by the Government Board and his appointment was regularised from 14-9-1957 the date on which he had been appointed by the local body on a temporary basis. Special reference is made to this appointment here because if he had been regarded as selected for appointment on the date of his interview, he would have been regarded as having been appointed after 1-10-1957 in which case under the impugned Rules he would have been treated differently from the other three petitioners and would have been entitled to be promoted like the Respondents over the head of the other petitioners who were admittedly senior to him in service. Several new appointments were made after 1-10-1957 and most of them were in the post created on 1-10-1957 for absorbing local bodies teachers. In the High school teachers petition viz. Writ Petition 97 of 1970, all those 236 respondents who are mentioned at serial no. VII in that petition are High school teachers appointed after 1-10-1957. Respondents 37 to 96 in the Writ Petition of the Primary school teachers viz. Writ Petition 657 of 70, are the teachers appointed after 1-10-1957. As a matter of fact the latter have been appointed on the recommendation of the Subordinate Services Selection Board actually in 195963. As already stated Government was thinking of formulating principles for the integration of the provincialised teachers with their counterparts in Government service and in that respect the Government came to certain decisions in January, 1960 These decisions are contained in a letter dated 27-1-1960 written by the Secretary to the Government to the Director of Public Instruction. The subject was described as determination of joint seniority of various categories of teachers and fixation of cadres. Several decisions were taken to that end. One was that the staff in the provincialised schools, that is to say the erstwhile local bodies schools and the Government schools may be kept in separate cadres, one known as the provincialised cadre and the other known as the State cadre. Since the object was to have one unit of educational service it was expedient to treat the provincialised cadre as a diminishing cadre. The vacancies occurring therein should be transferred to the State cadre so that in course of time the provincialised cadre would completely vanish leaving only the State cadre in the field. The State Cadre would comprise those who were appointed before 1-10-1957 in the State cadre and those who were freshly recruited after that date. In both the cadres there would be two grades of pay 15% of the strength in each cadre being filled by promotion from the lower grade. All vacancies expected to occur in the lower grade of provincalised teachers by death, retirement and promotion were to be transferred to the State cadre and a proportionate number of posts in the higher grade would also stand transferred to the State cadre. It was decided that roughly or every 11 posts transferred from the lower grade to the State cadre, two posts in the higher grade should be transferred. That way it was thought there would be no disturbance in the ratio of 15% of higher posts provided for the provincialised cadre. Administrative difficulties in transferring members of the cadre from one school to another would also be obviated and there would be no chance of friction or inefficiency even when in the same schools members of both cadres function. It was clearly enunciated that the two cadres were to be considered as different only for the purpose of future promotions64. On coming to know about these decisions, teachers in the provincialised schools were upset. One Joginder Singh who was a Primary school teacher and one Amrik Singh who was a High school teacher filed Writ Petitions in the Punjab High Court. Apart from the contention that the above decisions of the Government were discriminatory, it was further contended that the above decisions had no statutory basis and were therefore illegal. To obviate the latter objection the Government of Punjab promulgated the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961 on February 13, 1961. The Rules embodied the decisions under challenge. As the petition was pending the High Court permitted challenge to these rules also. On merits the contention was that the teachers were equal in all respects and the rules framed in 1961 by the Government giving effect to the same retrospectively from 1-10-1957 introduced discrimination between teachers similarly situated and hence were bad under Articles 14 and 16 of the Constitution. These contentions were upheld by the Punjab High Court which declared that the 1961 Rules in so far as they created two cadres of persons in the same service and inequality of opportunity for promotion by providing a formula were void being discriminatory. From that decision the State of Punjab came in appeal to this Court but that was only in the case filed by Joginder Singh. The State did not file an appeal from the Order passed in the Writ Petition of Head Master Amrik Singh. The decision of this Court in Joginder Singhs case, is reported in (1963) Supp 2 SCR 169 = (AIR 1963 SC 913  ). The Court was divided. The majority (Sinha, C. J., Wanchoo and Ayyangar, JJ.) were of the view that the rules did not violate Articles 14 and 16 of the Constitution. In the view of the majority "the two cadres started as independent services and the Government never integrated them into one service. They started dissimilarly and they continued dissimilarly and, therefore, the dissimilarity of the treatment by the Rules was not a denial of equal opportunity. The question of denial of equal opportunity could arise only as between members of the same class and since the two services were different and dissimilar there was no question of discrimination.The minority consisting of Subba Rao and Shah, JJ. took different view. They held that the rules differentiated the two cadres only for purposes of future promotions, otherwise they had treated them equal in all respects. There was, therefore, no valid basis for classification so as to justify a differential treatment between their members inter se for the purposes of promotion. They held that the Government, in fact, had given the same terms of employment to the two cadres and in fact constituted a single grade of teachers and, therefore, discrimination between the members of that grade based merely on the source of recruitment clearly infringed Article 16 (1) and (2). The above decision was rendered on November 16, 196265. Though the decision of the Supreme Court upheld the contention of the Punjab Government that the two cadres or services were dissimilar, it does not appear that the Punjab Government implemented the rules any time. It is not quite clear why effect was not given to that decision. Perhaps it may be due to the fact that the minority judgment had powerfully pointed out what the result would be if the situation after a few years were to be contemplated. It was pointed out that the discrimination would continue for the next 35 years and juniors in service appointed after 1-10-1957 would steal a march over their seniors in the provincialized service and block entry into the higher posts. It is also possible that the State Government was not quite happy with certain observations made in the majority judgment to the effect that the impugned rules enabled vacancies in the selection grade of the State cadre to be filled, in part, by teachers belonging to the provincialized service whenever there were no sufficient members of the lower grade of the State cadre eligible for promotion to the higher cadre. Whatever it may be, it is a fact that the State Government did not try to give effect to the rules; and actually on 25-3-1965, the Government cut the gordian knot and put an end to all bickerings between the teachers by unifying the two scales into one. The unified scale for primary School teachers became Rs. 60-120-175/- and for the Masters Rupees 110-250-300/-. By reason of this unified scale the teachers got pay according to their seniority. The grievances of all Primary teachers and Masters in the junior scale came to an end66. On 1-11-1966 the State of Haryana came into existence and some parts of the old Punjab State were included in the State of Haryana. Gurgaon and Karnal are two of the Districts which became part of the State of Haryana. On reorganisation the teachers brought with them their own scales of pay i.e. the unified scales prescribed by the Punjab Government. On 5-1-1968 the Government of Haryana took some decisions. The unified scale was split up into lower and higher scales, the higher scale being given to 15% and the lower scale being given to 85%. The scales were also revised by margins of allowances and the like. The scale of Primary teachers became 125-250 for the lower grade and Rs. 250-300/- for the higher or Selection grade. For the Masters the lower grade was revised to Rupees 220-8-300-10-400 and for the higher grade of 15%, which included the senior Masters, it was Rupees 400/- to Rupees 500/-. After this the Haryana Government put the Punjab Rules of 1961 again to operation. The cases of Masters who had been appointed after 1-10-1957 were called up for considering their promotion and so were the cases of promotion and so were the cases of Primary teachers of Gurgaon District appointed in 1959 taken for consideration for promotion. It is not disputed that on an application of the rules these appointees after 1-10-1957, being deemed to be part of the State Cadre, would be entitled to be immediately promoted to the higher scale while the petitioners in both the petitions now before us though senior in age and experience and working in the same Schools and on the same scales of pay would not be considered for promotion. By the time the petition of the Primary School teachers (W. P. 657 of 70) was filed, respondents Nos. 6 to 96 were already promoted. In the School Masters petition (W. P. 97 of 70) this Court directed that if promotions as contemplated were made, they would be subject to the orders of this Court67. In Writ Petition 97 of 1970 the two petitioners are masters in High Schools in Karnal District. Both of them are trained graduate teachers. One is B.Sc., B.T. and the other is B.A., B.T. The former was appointed as Master in 1955 and the latter in 1956. The respondent teachers have been all freshly appointed between October 1, 1957 and February 13, 1961. They are all junior in service to the petitioners. It is not disputed that the respondent teachers are considered for promotion on the ground that they belong to the State cadre while the petitioners are not considered for promotion because they belong to the provincialized cadre. Similar is the position in the other Writ Petition (W. P. 657 of 70). The 4 petitioners are Primary School teachers. They are all trained teachers and are all matriculates. Petitioner No. 1 was appointed in 1956, petitioner No. 2 in 1955, petitioner No. 3 in 1951 and petitioner No. 4, to whom reference had already been made, on 14-9-1957 i.e. only a few days before the provincialization. Respondents 37 to 96 are new recruits appointed on or after 16-7-1959. They have been promoted on the ground that they belong to the State cadre while the petitioners belong to the provincialized cadre. They case of respondents 6 to 36 is slightly different. They were teachers in Gurgaon District. The were also absorbed in Government service on 1-10-1957 and their service is counted from 1-10-1957 and from that point of view they are said to belong to the State cadre. They and respondents 37 to 96 are treated on the some footing as they are teachers deemed to have been appointed to the State cadre on 1-10-1957 and thereafter68. The promotion of the respondents, though junior to the petitioners in service, is supported on the ground that it was permissible under the 1961 Rules referred to above and these rules have been already held to be valid by this Court in Joginders case, (1963) Supp 2 SCR 169 = (AIR 1963 SC 913  ). It is not disputed that the petitioners and the respondents working in the same or similar Schools were equally qualified and transferable to the same schools. It is not also disputed that an earlier promotion of the respondents to the higher cadre may conceivably block the entry of the petitioners to the senior posts as Head teachers or Head Masters. Prima facie this may appear to be discriminatory but it is contended that there were valid reasons for the classification and since the classification has been upheld by this court in Joginders case, (1963) Supp 2 SCR 169 = (AIR 1963 SC 913  ) the petitioners would not be entitled to any relief. In other words, the respondents, including the State Government of Haryana, support the grounds on which the majority in Joginders case, (1963) Supp 2 SCR 169 = (AIR 1963 SC 913  ) was pleased to uphold the 1961 Rules69. This bench of 7 Judges was constituted to consider whether the majority decision requires to be reviewed76. Then we have the important statement made by the Minister of Education on 30-9-1957 on the eve of the take over. The Statement is on record as Annexure A. I. to the rejoinder affidavit filed on behalf of the petitioners. It shows that the Government had decided that with a view to ameliorate the conditions of service of teachers working in the local body schools the status of those teachers was to be brought at par with those working in the Government schools. Since there was always a time lag between the revision of pay of Government cadres and the revision of pay of local bodies cadre it was decided"that the question of local bodies teachers should be settled once for all and the only feasible proposition was to provincialize them.with the statement, details of various aspects of provincialisation were attached and the statement went on to say, "Not only are the teachers being brought under Government control but their scales of pay are being simultaneously revised to be brought in line with those working in Government schools. In the details of provincialisation given in the statement it was stated that the teachers will be given the grades of pay as were applicable in the case of those already in Government, employ and that their pay will be fixed according to rules. Care would be further taken that there would be no drop in the present emoluments of the local bodies teachers. As regards the question of pension and provident fund etc. that was under examination and a decision would be given in due course. Finally, on the question of seniority list this is what was stated"Joint seniority lists of District Board and Municipal Board teachers will be drawn up in accordance with the rules. The principles which will govern their integration with their counter-parts already in Government employ are being formulated.75. Effective action was taken to take over the schools of the local bodies by the memo dated September 27, 1957 in which the sanction of the Governor to the provincialisation of all local bodies schools was conveyed. New posts were created in Government service for the absorption of the teachers in the local bodies schools. Thus the teachers of the local bodies schools became Government servant on 1-10-1957. this memo is important in several ways. The pay scales prescribed for these teachers was declared to be the same as was prescribed for the teachers in the state cadre. Even, before this memo, by virtue of orders passed in 1954 and 1966 the scales of pay of teachers in the State cadre and teachers in the local bodies schools had been brought on par. But what is more important is that by this memo, out of the posts given to the Primary school teachers, 15% were placed in the higher grade of Rs. 120-5-175/-. There was no higher grade in the local bodies schools and the only scale was Rupees 60/120. That was also the scale for Primary School teachers in the Government cadre. But a decision had been taken by the Government on July 23, 1957 that in Government schools also 15% of the teachers should be put in the higher or selection grade and the remaining 85% should be placed in the lower grade. Although this decision was taken by the Government with regard to their schools on 23-7-1957 that was not given effect to till 1-10-1957. In other words, the benefit of the selection grade was given to the State cadre teachers and the local bodies teachers from the same day i.e. on 1-10-1957 and in the same ratio.

Court's reasoning:
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.