Supreme Court of India

Roshan Lal Tandon vs Union Of India on 14 August, 1967

Equivalent citations: 1967 AIR 1889, 1968 SCR (1) 185, AIR 1967 SUPREME COURT 1889, 1968 (1) SCJ 558, 1968 (1) SCR 185, 1968 SCD 314, 1968 (1) LABLJ 576

Author:
V. Ramaswami

Bench:
V. Ramaswami
,
K.N. Wanchoo
,
R.S. Bachawat
,
G.K. Mitter
,
K.S. Hegde

PETITIONER:
ROSHAN LAL TANDON

Vs.

RESPONDENT:
UNION OF INDIA

DATE OF JUDGMENT:
14/08/1967

BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
WANCHOO, K.N. (CJ)
BACHAWAT, R.S.
MITTER, G.K.
HEGDE, K.S.

CITATION:
1967 AIR 1889 1968 SCR (1) 185
CITATOR INFO :
R 1972 SC 252 (4)
RF 1972 SC 670 (18)
E 1973 SC 811 (7)
E&R 1974 SC 1 (46,50,53)
D 1974 SC1618 (14)
F 1974 SC1755 (35)
RF 1975 SC1646 (21)
RF 1976 SC 490 (35,36)
E&F 1978 SC 17 (12)
R 1979 SC1060 (28,29)
E 1980 SC 115 (38)
RF 1980 SC2181 (104)
RF 1981 SC2181 (25)
E&R 1985 SC1416 (43A)
RF 1986 SC 555 (6)
F 1986 SC 737 (17)
D 1987 SC1527 (26,28)
D 1987 SC2348 (3)
RF 1988 SC 662 (3,12)
R 1991 SC 79 (25)
RF 1991 SC 101 (18,200,240)

ACT:
Constitution of India, 1950--Arts, 14 and 16--Discrimination
--Recruitment to Lower Grade from two sources--Favourable
treatment to recruits from one source regarding promotion to
Higher Grade--If Discriminatory.
Civil Servant--Legal position--If one of status or of
contract.

HEADNOTE:
Vacancies in grade 'D' of Train Examinations were filled by
(a) direct recruits i.e., apprentice train examiners who had
completed the prescribed period of training, and (b)
promotees from skilled artisans. Promotion from Grade 'D'
to 'C' was on the basis of seniority-cum-suitability. In
October 1965 the Railway Board issued a notification by
which it was provided that eighty per cent of the vacancies
in Grade 'C' were to be filled up from apprentice train
examiners-recruited on and after April 1, 1966 and the
remaining twenty per cent by train examiners from Grade 'D'.
The notification further provided that apprentice train
examiners who had already been absorbed in Grade D before
April 1966 should en bloc be accommodated in Grade 'C' in
the eighty per cent of the vacancies without undergoing any
selection and with regard to twenty per cent of the
vacancies, reserved for the other class promotion was to be
on selection basis and not on the basis of seniority-cum-
suitability.
The petitioner who entered Railway service in 1954 as a
skilled artisan and was selected and confirmed in Grade 'D'
filed a Writ Petition in this Court challenging that part of
the notification which gave favourable treatment to
apprentice train examiners who had already been absorbed in
Grade 14 'D' as arbitrary and discriminatory and violative
of Articles t4 and 16 of the Constitution. It was also
contended that the earlier order laying down that promotion
to grade 'C' was to be based on seniority-cum-suitability
had become a contractual condition of service and could not
be altered to the prejudice of the petitioner.
HELD: (i) The impugned part of the notification violated
the guarantee under
Articles 14
and
of the Constitution.
Once the direct recruits and promotees were absorbed in one
cadre, they formed one class and they could not be
discriminated against for the purpose of further promotion
to the higher grade 'C'. Before the impugned notification
was issued there was only one rule of promotion applicable
to both direct recruits and promotees. By the impugned
notification a discriminatory treatment was made in favour
of the existing apprentice Train Examiners who had already
been absorbed in grade 'D' because, the notification
provided that this group of apprentice train examiners
should first be accommodated en bloc in grade 'C' up to
eighty per cent of the vacancies reserved for them without
undergoing any selection; whereas in the twenty per cent of
the vacancies available to the category of Train Examiners
to which the petitioner belonged the basis of recruitment
was selection on merit and the previous test of seniority-
cum-suitability was abandoned. [192 D-G].
Mervyn v. Collector, [1966] 3 S.C.R. 600: relied on.
(ii) The petitioner had no vested contractual right in
regard to the terms of his service. The legal position of a
Government servant is more one of status than of contract.
Once appointed to his post or office a Government servant
acquires a status and his rights and obligations are no
longer determined by consent of parties, but by statute or
statutory rules which may be framed and altered unilaterally
by the Government. [195 B-C].

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petitions Nos. 154 and 203 of
1966.

Petition under
Art. 32
of the Constitution of India for the
enforcement of fundamentals rights.

S. -K. Mehta, and K. L. Mehta, for the petitioners (in
both the petitions).

N. S. Bindra, A. Sreedharan Nambiar-, R. H. Dhebar for R.
N. Sachthey, for respondent No. 1 (in W. P. 154 of 1966).

1. M. Lall and E., C. Agrawala, for respondent No. 2 (in
W.P.No. 154 of 1966).

R. H. Dhebar for R. N. Sachthey, for respondents Nos. I
and_ (in W.P. No. 203 of 1966).

H. R Gokhale and E. C. Agarwala, for respondent No. 6 (in
W.P. No. 203 of 1966).

Respondent No. 10 appeared in person (in W.P. No. 203 of
1966).

The Judgment of the Court was delivered by
Writ petition No. 154 of 1966.

Ramaswami, J.-In this case the petitioner, Roshan La1 Tandon
has obtained a rule from this Court calling upon the
respondents to show cause why a writ in the nature of
mandamus under
Art. 32
of the Constitution of India should
not be issued commanding the respondents not to carry out
the directives contained in the notification of the Railway
Board No. E(NG)65 PMI-26 dated the 27 the October, 1965,
Annexure 'D' to the Writ Petition, in so far as it grants
protection to the existing Apprentice Train Examiners and
lays down the procedure to fill upgraded vacancies. Cause
has been shown by, the respondents to whom notice of the
rule was ordered to be given.

There were originally two scales for Train Examiners Rs.
100-185 ('D' Grade) and Rs. 150-225 ('C' Grade). These
scales were later revised as a result of the recommendations
of the Second Pay Commission and the scale of 'D' Grade was
increased to Rs. 180-240 and that of 'C' Grade to Rs. 205-

280. On February 18, 1961 the Railway Board issued a letter
No. PC-60/PS5/ TP-8, Annexure 'A' to the Writ Petition to
the General Managers
of all Indian Railways conveying its decision that vacancies
in the Entry Grade of Train Examiners (in the scale Rs. 180-

240) with effect from February 18, 1961 should be filled as
follows:

(i) 50% of the vacancies should be filled
from Apprentice Train Examiners who
successfully have completed the prescribed (4
years) apprenticeship, the remaining 50% of
the vacancies being filled by promotion of
skilled artisans.

(ii) 20 /1/O of the annual requirements of
Apprentice Train Examiners should be drawn
from skilled artisans who are not more than 35
years old on 1st July of the year in which the
apprenticeship is likely to commence."

Promotion to Grade 'C' of Train Examiners used to take place
on the basis of seniority-cum-suitability without any
distinction whether the employee entered Grade 'D' of the
Train Examiners directly or was selected out of the category
of skilled artisans. This rule was laid down by the Railway
Board in its letter No. E(S) 1-57-TRS/41, dated January 25,
1958 which states:

"Ref : Para 2 of Board's letter No. E(R) 49-
JAC / 13 dated 23-2-50 laying down that 20% of
the posts in the TXR grade Rs. 150-225 should
be reserved and the TXR in the grade of Rs.
80-160 (since revised Rs. 100-185) promoted
from skilled and semi-skilled ranks. The
Board have reviewed the position and have
decided that promotion to the TXR grade of Rs.
150-225 should hereafter be made solely on the
basis of seniority-cum-suitability and the
reservation of only 20% as mentioned above
will no longer be operative."

(Annexure 'B' to the Writ Petition).

On the basis of this rule the Divisional Personnel Officer,
New Delhi, prepared a seniority list for the Train Examiners
of Grade 'D' of Delhi Division as on December 31, 1964
(Annexure 'C' to the Writ Petition).'On October 27, 1965 the
Railway Board issued the impugned notification (Annexure 'D'
to the Writ Petition). The notification states in the first
place that on and from April 1, 1966 vacancies in the Entry
Grade of Train Examiners scale Rs. 120-240 should not be
filled from Apprentice Train Examiners upto 50% as hitherto,
but should exclusively be filled by promotion from amongst
artisan staff With regard to the next higher grade i.e.,
Grade 'C', it was provided that 80% vacancies should be
filled by Apprentice Train Examiners who had successfully
completed the prescribed training of 5 years (three years in
case of Diploma Holders and three years in case of Artisan
recruited as Apprentice Train Examiner). Twenty per cent of
the vacancies were to be filled by the Train Examiners from
Grade 'D'. It was
further provided that the Train Examiners Grade 'D' who
began as Apprentice Train Examiners and who were to be
absorbed in the 'C' Grade against 80% vacancies reserved for
them should not be required to undergo selection before
being absorbed in that grade. As regards 20% vacancies
reserved for the other class of Train Examiners the
promotion was to be on selection basis. The materials
portion of the notification of the Railway Board dated
October 27, 1965 is reproduced below:

"RECRUITMENT:

(i) Vacancies in the entry grade of Train
Examiners in the authorised scale Rs. 180-240
should not be filled from apprentice TX Rs.

upto 50% as hitherto, but should exclusively
be filled by promotion from amongst artisan
staff.

(ii) (a) Vacancies in the next higher grade
Rs. 205-280 (AS) should be filled from amongst
X X
the TXRs in grade Rs. 180-240 (AS) to the
extent of 2O%.

(b) The remaining 80% vacancies should be
filled by Apprentice TX Rs. who have
successfuly completed prescribed
apprenticepship mentioned in para 2 below.

(c) 25% of the annual requirements of
apprentice TXRS. should be drawn from skilled
artisans who are not more than 35 years old on
1st July of the year in which apprenticeship
is likely to commence.

The instructions contained in Board's letter
No. 2(NG)-61MI/101 dated 6-6-62 should be kept
in view.

Training

2. The Appentice TXRs recruited on and from
1/4/66 shall be given a training for a period
of five years (three years in the case of
diploma holders). From the same date artisans
in lower grades (recruited as apprentice
TXRS.) shall be given 'in service' training
for period of three years. Instructions
regarding a revised syllabus for the training
of the Apprentice TXRS. will follow: -

DISTRIBUTION OF POSTS IN DIFFERENT GRADE
Fifty per cent of existing posts of TXRs in
grade Rs. 180-240 which were required to be
earmarked for(Apprentice TXRS. in terms of
Board's letter No. PC-60/ PS-6/TP-8 dated
18-2-1961 should be upgraded to scaleRs. 205-

280.
REVISED DESIGNATIONS AND CLASSIFICATION OF
POSTS OF TXRS.

Designation Scale of Pay Classification
T. X. Its. Grade D' 180-240Non-selection
T. X. Rs. Grade 'C' 205-280Selection for
promotees from
grade ID'
T. X. Rs. Grade 'B' 250-380Selection
T. X. Its. Grade 'A' 335-425Non-selection
Head T. X. Rs. 370-475 Selection
Chief T. X. Rs. 450-575 Selection
Carriage Foreman
Protection to the existing apprentice TXRS.
procedure fill upgraded vacancies.

It has also been decided that with effect from
1-4-66 all the Apprentice TXRS. (Diploma
holders as well as others) on successful
completion of their training should be
straightaway brought on to the scale Rs. 205-
280 (AS) instead of being first absorbed in
scale Rs. 180-6 -240 as at present.

Consequenty they should be allowed stipend in
scale Rs. 180-6-210 during the period of their
training. As regards the apprentice TXRS. who
are undergoing training at present, and will
not be brought on to the work working
posts before 1-4-66, it has been decided that
from the date of this letter, they should be
allowed stipend in scale Rs. 180-6-210 during
the remaining period of their training. Their
period of training should also be increased to
5 years, on completion of which they should be
put on to the working posts in scale Rs. 205-
280 (AS). The Apprentice TXRS. who have
already been or will be absorbed in scale Rs.
180-240 upto 31-3-66 should first be
accommodated in scale Rs. 205-280 against the
quota of 80% vacancies reserved for them.
Such staff should not be required to undergo a
'Selection' before being absorbed in that
grade. The upgraded vacancies in scale Rs.
205-280 left over after earmarking those for
the apprentices under training on 2-4-66
should be filled by promotion of TXRS. in
scale Rs. 180-240 on a selection basis. While
computing the number of posts available for
promotion of TXRS. in scale Rs. 180-240 the
vacancies likely to occur during the period
of apprenticeship of the apprentices under
training as on 1-4-66 should also be taken
into account. In other words, it would be
necessary to keep in reserve only the number
of posts equal to the number of apprentices
under training as on 1-4-66, who cannot be
absorbed in the anticipated vacancies which
will arise by the time they qualify."

The petitioner, Roshan Lal Tandon entered railway service on
March 6, 1954 as skilled fitter on the Northern Railway. He
was selected for the training for the post of Train Examiner
Grade 'D' on June 5, 1958 and was confirmed in that grade on
October 25, 1959. The case of the petitioner is that he
alongwith the direct recruits formed one class in Entry
grade 'D' and their condition of service was that seniority
was to be reckoned from the date of appointment as Train
Examiner in Grade 'D' and promotion to Grade 'C' was on the
basis of seniority-cum-suitability test irrespective of the
source of recruitment. It was alleged that there was no
difference between the apprentices and those selected out of
the skilled artisans when they entered Grade 'D' and that
portion of the impugned notification which gave a favourable
treatment to the direct recruits in Grade 'D' with regard to
promotion to Grade 'C' was arbitrary and discriminatory and
violated the guarantee under Arts. 14 and 16 of the
Constitution. It was contended that the petitioner having
been brought to grade 'D' by undergoing the necessary
selection and training and having been integrated with the
others who had been brought in through direct recruitment in
grade 'D' could not be differentiated for the purpose of
promotion to the senior Grade 'C'. The petitioner has
therefore moved this Court for the grant of a writ under

Art. 32
of the Constitution to quash the notification of the
Railway Board dated October 27, 1965.

In the counter-affidavit respondent No. 1 has denied that
there was any violation of the guarantee under Arts. 14 and
16 of the Constitution. It was conceded that prior to April
1, 1966 promotion to the post of Grade 'C' Train Examiner
was on the basis of seniority-cum-suitability but the
impugned notification was issued by the first respondent
because it Was decided that the posts of senior Train
Examiners in Grade 'C' should be filled by men possessin
adequate technical knowledge and so the period of training
of senior Train Examiners was increased and it was decided
that in future 80 per cent of the vacancies in 'C' grade
should be filled directly by Apprentice Train Examiners and
the remaining 20 per cent was to be made available for
recruitment from the category of Train Examiners to which
the petitioner belonged. This recruitment of 20 per cent
vacancies was to be made on the basis of merit. It was said
that the reorganisation of the Service was made with a view
to obtain a better and more technically trained class of
Train Examiners. The reason was that
there were more complicated designs. of Carriages and
Wagons, acquisition of modern type of Rolling Stock and
greater speed of trains under dieselisation and
electrification programmes. It was. considered that there
should be a better calibre of technically trained and
technically qualified personnel for proper maintenance and
safety of the Rolling Stock. In view of the decision to
recruit Apprentice Train Examiners directly in 'C' Grade
with effect from April 1, 1966 those who were Apprentice
Train Examiners in Grade 'D' before that date had to be
upgraded in the scale of Rs. 205-280. It was therefore
thought that these posts should be upgraded "so that there
should be parity of treatment with the Apprentice Train
Examiners who were to join after April 1, 1966". The first
respondent has also controverted the allegation of the
petitioner that the procedure outlined in the impugned
notification dated October 27, 1965 in regard to the
upgraded vacancies was discriminatory.
The main question to be considered in this case is whether
the notification by the first respondent dated October 27,
1965 is violative of Arts. 14 and 16 of the Constitution in
so far as it makes a discrimination against the petitioner
for promotion to Grade 'C'. According to the impugned
notification the existing Apprentice Train Examiners who had
already been absorbed in grade 'D' by March 31. 1966 should
first be accommodated in grade 'C' in 80% of the vacancies
reserved for them without undergoing any selection. With
regard to 20% of the vacancies there is a reservation in
favour of the departmental Train Examiners, but the
promotion is by selection and not by the test of seniority-
cum-suitability which prevailed before the date of the
impugned notification. It was not disputed by Mr. Mehta on
behalf of the petitioner that the Railway Board was
competent to say that with effect from April 1, 1966
vacancies in the Entry grade posts of Train Examiners should
not be filled from Apprentice Train Examiners upto 50% but
should be exclusively filled by promotion from amongst
artisan staff. As regards the recruitment to grade 'C', the
impugned notification states that with effect from April 1,
1966 all the Apprentice. Train Examiners on successful
completion of their training should be straightaway brought
on to the scale Rs. 205-280 instead of being first absorbed
in scale Rs. 180-6-240 as at present. The period of
training was also increased to 5 years on completion of
which they should be put on to the working posts in scale
Rs. 205-280. So far as this portion of the notification is
concerned, Counsel for the petitioner did not raise any
constitutional objection. But the contention of the
petitioner is that the following portion of the notification
was. constitutionally invalid:

"The Apprentice TXRS. who have already been or
will be absorbed in scale Rs. 180-240 upto 31-
3-66 should first be accommodated in scale Rs.
205-280
against the quota 80% vacancies reserved for
them. Such staff should not be required to
undergo a 'Selection' before being absorbed in
that grade. The upgraded vacancies in scale
Rs. 205-280 left over after earmarking those
for the apprentices under training on 2-4-66
should be filled by promotion of TXRs in scale
Rs. 180-240 on a selection basis."

In our opinion, the constitutional objection taken by the
petitioner to this part of the notification is well-founded
and must be accepted as correct. At the time when the
petitioner and the direct recruits were appointed to Grade
'D', there was one class in Grade 'D' formed of direct
recruits and the promotees from the grade of artisans. The
recruits from both the sources to Grade 'D' were integrated
into one class and no discrimination could thereafter be
made in favour of recruits from one source as against the
recruits from the other source in the matter of promotion to
Grade 'C'. To put it differently, once the direct recruits
and promotees are absorbed in one cadre, they form one class
and they cannot be discriminated for the purpose of further
promotion to the higher grade 'C'. In the present case, it
is not disputed on behalf of the first respondent that
before the impugned notification was issued there was only
one rule of promotion for both the departmental promotees
and the direct recruits and that rule was seniority-cum-
suitability, and there was no rule of promotion separately
made for application to the direct recruits. As a
consequence of the impugned notification a discriminatory
treatment is made in favour of the existing Apprentice Train
Examiners who have already been absorbed in Grade 'D' by
March 31, 1966, because the notification provides that this
group of Apprentice Train Examiners should first be
accommodated en bloc in grade 'C' upto 80 per cent of
vacancies reserved for them without undergoing any selec-
tion. As regards the 20 per cent of the vacancies made
available for the category of Train Examiners to which the
petitioner belongs the basis of recruitment was selection on
merit and the previous test of seniority-cum-suitability was
abandoned.
In our opinion, the present case falls within
the principle of the recent decision of this Court in
Mervyn
v. Collector
(1). In that case, the petitioners who were
Appraisers in the Customs Department filed a writ petition
under
Art. 32
, challenging the validity of the "rotational"
system as applied in fixing the seniority of Appraisers and
Principal Appraisers. The system, as
laid down in
the
relevant departmental circulars was that vacancies occurring
in the cadre of Appraisers were to go alternatively to
'promotees' and 'direct recruits'. According to the
petitioners of that case this resulted in inequality,
especially in view of the fact that the number of direct
recruits over the years was very low. Promotion to the
(1) [1966] 3 S.C.R. 600.
grade of Principal Appraisers was from the cadre of
Appraisers; only those who had served as Appraisers for five
years were entitled to be promoted to the higher grade.
Since the direct recruits had to wait for five years before
they could become Principal Appraiser the promotees below
them who had put in five years as Appraisers became
Principal Appraisers. In order to restore the seniority of
the direct recruits thus lost, the rotational system was
applied to the cadre of Principal Appraisers also i.e., one
vacancy was to go to a promotee and the other to a direct
recruit. The plea of inequality in violation of
Art. 16(1)

of the Constitution was raised by the petitioners in respect
of this also. It was held by this Court, in the first
place, that there was no inherent vice in the principle of
fixing seniority by rotation in a case when a service is
composed in fixed proportion of direct recruits and
promotees. It was held in the second place that the same
could not be said when the rotational system was applied to
the recruitment of Principal Appraisers. The source of
recruitment for these was one only, namely, the grade of
Appraisers. There was no question of any quota being
reserved from two sources in their case. In so far
therefore as the Government was doing what it called res-
toration of seniority of direct recruits in Appraisers grade
on their promotion to the higher grade it was clearly
denying equality of opportunity under
Art. 16
of the
Constitution. At page 606 of the Report Wanchoo, J., as he
then was, speaking for the Court observed as follows:

"This brings us to the question of Principles
Appraisers. We are of opinion that the
petitioners have a legitimate grievance in
this respect. The source of recruitment of
Principal Appraisers is one, namely, from the
grade of Appraisers. There is therefore no
question of any quota being reserved from two
sources in their cases. The rotational system
cannot therefore apply when there is only one
source of recruitment and not two sources of
recruitment. In a case therefore where there
is only one source of recruitment, the normal
rule will apply, namely, that a person
promoted to a higher grade gets his seniority
in that grade according to the date of
promotion subject always to his being found
fit and being confirmed in the higher grade
after the period of probation is over. In
such a case it is continuous appointment in
the higher grade which determines seniority
for the source of recruitment is one. There
is no question in such a case of reflecting in
the higher grade the seniority of the grade
from which promotion is made to the higher
grade. In so far therefore as the respondent
is doing what it calls restoration of
seniority of direct recruits in Appraisers'
grade when they are promoted to the Principal
Appraisers' grade, it is clearly denying
equality of opportunity LP(N)ISCI-14
to Apprasiers which is the only source of
recruitment to the Principal Appraisers'
grade. There is only one source from which
the Principal Appraisers are drawn, namely,
Appraisers, the promotion being by selection
and five, years' experience as Appraiser is
the minimum qualification. Subject to the
above all Appraisers selected for the post of
Principal Appraisers must be treated equally.
That means they will rank in seniority from
the date of their continuous acting in the
Principal Appraisers' grade subject of course
to the right of government to revert any of
them who have not been found fit during the
period of probation. But if they are found
fit after the period of probation they rank in
seniority from the date they have acted
continuously as Principal Appraisers whether
they are promotees or direct recruits. The
present method by which the respondent puts a
direct recruit from the grade of Appraiser,
though he is promoted later, above a promotee
who is promoted to the grade of Principal
Appraiser on an earlier date clearly denies
equality of opportunity where the grade of
Principal Appraiser has only one source of
recruitment, namely from the grade of
Appraisers. In such a case the seniority in
the grade of Principal Appraisers must be
determined according to the date of continuous
appointment in that grade irrespective of
whether the person promoted to that grade from
the Appraisers' grade is a direct recruit or a
promotee. This will as we have already said
be subject to the government's right to revert
any one promoted as a Princivil Appraiser if
he is not found fit for the post during the
period of probation. The petition therefore
will have to be allowed with respect to the
method by which seniority is fixed, in the
grade of Principal Appraisers. That method
denies equality of opportunity of employment
to the Appraisers who are the only source of
recruitment to the grade of Principal
Appraisers. What the impugned method seeks to
do is to introduce a kind of reservation in
respect of the two categories of Appraisers
from which the promotions are made, and that
cannot be done when the source of promotion is
one."

We pass on to consider the next contention of the petitioner
that there- was a contractual right as regards the condition
of service applicable to the petitioner at the time he
entered Grage 'D and the condition of service could not be
altered to his disadvantage afterwards by the notification
issued by the Railway Board. It was said that the order of
the Railway Board dated January 25, 1958, Annexure 'B', laid
down that promotion to Grade 'C' from Grade 'D' was to be
based on seniority-cum-suitability and this condition of
service was contractual and could not be altered thereafter
to the prejudice of the petitioner. In our opinion, there,,
is no warrant for this argument. It is 'true that the
origin of Government service is contractual. There is an
offer and acceptance in every case. But once appointed to
his post or office the Government servant acquires a status
and his rights and obligations are no longer determined by
consent of both parties, but by statute or statutory rules
which may be framed and altered unilaterally by the
Government. In other words, the legal position of a
Government servant is more one of status than of contract.
The hall-mark of status is the attachment to a legal
relationship of rights and duties imposed by the public 'law
and not by mere agreement of the parties. The emolument of
the Government servant and his terms of service are governed
by statute or statutory rules which may be unilaterally
altered by the Government without the consent of the
employee. It is true that
Art. 311
imposes constitutional
restrictions upon the power of removal granted to the
President and the Governor under
Art. 310.
But it is
obvious that the relationship between the Government and its
servant is not like an ordinary contract of service between
a master and servant. The legal relationship is something
entirely different, something in the nature of status. It
is much more than a purely contractual relationship
voluntarily entered into between the parties. The duties of
status are 'fixed by the law and in the enforcement of these
duties society has an interest. In the language of juris-
prudence status is a condition of membership of a group of
which powers and duties are exclusively determined by law
and not by agreement between the parties concerned. The
matter is clearly stated by Salmond and Williams on
Contracts as follows:

"So we may find both contractual and status-
obligations produced by the same transaction.
the one transaction may result in the creation
not only of obligations defined by the parties
and so pertaining to the sphere of contract
but also and concurrently of obligations de-
fined by the law,itself, and so pertaining to
the sphere of status. A contract of service
between employer and employee, while for the
most part pertaining exclusively to the sphere
of contract, pertains also to that of status
so far as the law itself has seen fit to
attach to this relation compulsory incidents,
such as liability to pay compensation for
accidents. The extent to Which the law is
content to leave matters within the domain of
contract to be determined by the exercise of
the autonomous authority of the parties
themselves, or thinks fit to bring the matter
within the sphere of status by mining for
itself the contents of the relationship, is a
matter depending on considerations of public
policy. In such contracts as those of service
the tendency in modem times is to withdraw the
matter more and more from the domain of
contract into that of status." .lm0
(Salmond and Williams on Contracts, 2nd
edition p. 12).
We are therefore of the opinion that the
petitioner has no vested contractual right in
regard to the terms of his service and that
Counsel for the petitioner has been unable to
make good his submission on this aspect of the
case.

But for the reasons already expressed we hold
that the impugned part of the notification
violates the guarantee under Arts. 14 and 16
of the Constitution and a writ in the nature
of mandamus should be issued commanding the
first respondent not to give effect to the
impugned part of the notification, viz.,:

"The Apprentice T.X.Rs. who have already been
or will be absorbed in scale Rs. 180-240 upto
31-3-66 should first be accommodated in scale
Rs. 205-280 against the quota of 80% vacancies
reserved for them. Such staff should not be
required to undergo a 'Selection' before being
absorbed in that grade. The upgraded
vacancies in scale Rs. 205-280 left over after
earmarking those for the apprentices under
training on 2-4-66 should be filled by
promotion of T.X.Rs. in scale Rs. 180-240 on a
selection basis. While computing the number
of posts available for promotion of T.X.Rs. in
scale Rs. 180-240 the vacancies likely to
occur during the period of apprenticeship of
the apprentices under training as on 1-4-66
should also be taken into account. In other
words, it would be necessary to keep in
reserve only the number of posts equal to the
number of apprentices under training as on
1-4-66, who cannot be absorbed in the anti-
cipated vacancies which will arise by the time
they qualify."

The application is accordingly allowed, but there will be no
,order with regard to costs in this case.

Writ Petition No. 203 of 1966

The material facts of this case are parallel to those in
Writ Petition No. 154 of 1966 and for the reasons already
given we hold that the petitioner is entitled to the grant
of a writ in the nature of mandamus commanding the
respondents not to give effect to the impugned part of the
notification dated October 27, 1965, Annexure 'D' to the
Writ Petition. The application is accordingly allowed, but
there will be no order as to costs in this case.
Petitions allowed. Y. P.