1. Petitioners are clerks in the Agricultural Department of the State of Gujarat. In this petition, they challenge the orders, contained in three resolutions of the Government, dated 17 February 1958, 27 July 1959 and 20 July 1960. They pray that a writ of certiorari or a writ of mandamus be issued, quashing the above orders and that a direction be issued to the State that their posts should be equated to the posts of senior clerks in the same department with effect from 1 November 1956. Petition is directed against the State of Gujarat, which is respondent 3, and two Secretaries thereof, who are respondents 1 and 2.
2. In order to understand the controversy between the parties, it will be convenient first to mention a few admitted facts. Before 1 November 1956, petitioners were senior clerks in the Agricultural Department of the then State of Saurashtra. In that department, the clerks were divided into two categories called senior clerks and junior clerks. The pay-scale of a senior clerk was Rs. 75-3-105 E.B.-5-120. The pay-scale of a junior clerk was Rs. 40-3-70. Under the States Reorganization Act 37 of 1956 (here-after called the Act), a new State, among others, called the State of Bombay, came into existence, comprising of a number of territories including the territory of the former Saurashtra State. The territories of the new State also included some of the territories of the former Bombay State and the territories of a few other States. Under S. 115, Sub-section (1), of the Act, petitioners were allotted, by a fiction, to serve in connexion with the new Bombay State. Under S. 115, Sub-section (1), petitioners continued to hold the posts of senior clerks and, from 1 November, 1956, they were deemed to have been duly appointed to such posts. However, though this was so, the problem of integrating petitioners and all the servants of the former States, from out of which the new State of Bombay was created, arose for the consideration of the new Government. In order to solve this problem the Government first published, on 18 October, 1957, rules called the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957 (hereafter called the rules), which were framed under the powers vested in the new State under the Act read with Art. 309 of the Constitution. The steps which the new Government was required to take, in order to complete the process of integration were the equation of the old posts to new posts in the new Government, absorption of the allocated Government servants in the equivalent posts, and appointment of such servants to such posts. The new State retained the posts which were in existence in the old Bombay State. In the present petition, we are concerned with the post of senior clerks and clerks simpliciter. The pay-scale of a senior clerk, in the new State was Rs. 100-8-140 and that of a mere clerk was Rs. 46-3-85-E.B.-4-125-5-130. Therefore, the first problem which the new Government was to solve vis-a-vis petitioners, was to equate the posts of senior clerks and junior clerks in the former Saurashtra State with the posts of senior clerks and mere clerks in the new Bombay State. On 11 December 1957, the new Government of Bombay issued a circular in which they laid down the principles which were to be borne in mind in determining the equation of posts, and the principles which they laid down were four in number and they were as follows :
(1) the nature of duties of a post;
(2) the responsibilities and powers exercised by the officer holding a post; extent of territorial or other charge held or the responsibilities discharged;
(3) the minimum qualifications, if any, prescribed for recruitment to the post; and
(4) the salary of the post.
Thereafter, on 17 February 1958, the Government passed a resolution in which, after referring to the rules, they ordered that, the posts allocated from the former States, including the former State of Saurashtra, specified in Col. (2) of a statement attached to the resolution, should be deemed to be equivalent to the posts in the former Bombay State specified in Col. (4) of that statement on the pay-scales shown in Col. (5) thereof. According to this resolution, the posts of senior clerks in the former Saurashtra State were equated to the posts of mere clerks in the former Bombay State on the pay-scale of Rs. 46-3-85-E.B.-4-125-5-130. Petitioners felt aggrieved by this order, and made representations to the Chief Secretary of the new Bombay State. The main grounds urged by petitioners in support of their representations were that, the orders of the Government aforesaid embodied in the above resolutions were violative of the provisions contained in S. 116, Sub-section (1), and S. 115, Sub-section (7) the latter inasmuch as the previous sanction of the Central Government had not been obtained as required by the proviso to that sub-section. On 27 July 1959, the new Government of Bombay passed a second resolution in regard to the senior clerks of the former State of Saurashtra, by which they modified the former order. They stated that, the posts of senior clerks of the former Saurashtra State should be equated to the posts of mere clerks in the new Bombay State on the same scale as already fixed by them, but that, the stage of the pays of the incumbents of such posts should not be below Rs. 85 and, in those cases where the pays were so fixed, the incumbents of the posts should be deemed to have crossed the efficiency bar. By the same resolution, the Government also held that, the seniority of the above clerks, as on 1 November, 1956, should be fixed above all the clerks holding the posts on the scale of Rs. 46 to Rs. 130. Under S. 115, Sub-section (5) the Central Government were assigned certain functions in regard to integration and some other allied matters, in the performance of which the Central Government were given the power of establishing one or more advisory committees. Under S. 117, the Central Government were given the power to give such directions to the State Governments as might appear to it to be necessary for the purpose of giving effect to the provisions of Part X, in which S. 115 occurs. The same section cast a duty upon the State Governments to comply with such directions. Amongst the functions assigned to the Central Government was also the function of ensuring a fair and equitable treatment to all persons affected by the provisions of S. 115, and the proper consideration of any representation made by such persons. Some of the petitioners were not satisfied even by the second resolution of the Government. Therefore, they made a representation to the Central Government on 31 March 1960. Petitioners were not given any direct reply by the Central Government. But, on 20 July 1960, the Under Secretary to the State of Gujarat, which had, in the meantime, come into existence under the Bombay State Reorganization Act, 1960, communicated to the Director of Agriculture, Gujarat State, that the Government of India had carefully considered the representations of the persons, mentioned in that letter, in which were included the names of some of the petitioners, and that, on the advice of the State Advisory Committee, it had reached the conclusions noted against each of the representationists. The decision of the Central Government is embodied in a language which is not quite happy and which is grammatically incorrect, but, with the assistance of learned counsel on both sides, we are able to reproduce the language of that decision in an intelligible form, and that form is as follows :
'The Government of India have decided that as the posts held by the applicants in the former States were higher in status than those which they have in the new States, it is proper to place them above all clerks/junior clerks for the purpose of further promotions.'
3. Some of the petitioners were dissatisfied even with this latest order and they made a further representation on 3 July 1961 to which, according to petitioners, they did not receive any reply up to the date of the petition. It is, thereafter, that petitioners presented the present petition.
4. From the aforesaid facts it is quite clear that, whereas petitioners occupied posts of senior clerks in the former Saurashtra State, they occupied the posts of mere clerks in the new Bombay State and continue to do so in the State of Gujarat. However, they have all been placed above the junior clerks in the former Saurashtra State and, for the purposes of future promotions, they are placed above all clerks in the Agricultural Department of the State of Gujarat. The pay-scales of petitioners not only have not been affected, but, they have been improved. The start which some of the petitioners got was Rs. 85 instead of Rs. 75, the increments which they would get at some stages would be higher than the increments which they had before and the maximum of their pay would be higher by about Rs. 10. Whereas, formerly they were required to cross the efficiency bar at Rs. 105, now they would not be required to cross the efficiency bar whatsoever. Petitioners, however, say that, their rights have been affected by the fact that they have been appointed as clerks simpliciter as they have not been absorbed in the posts of senior clerks, which posts were available for equivalence in the new Bombay State and are available in the State of Gujarat. That is the main grievance of petitioners, and the present petition has been brought by them primarily for the purpose of obtaining a direction from this Court, requiring the State of Gujarat to absorb them as senior clerks in its cadres and to pay them all their dues with effect from 1 November, 1956.
5. Sri R. D. Pandya, Under Secretary to the Government of the State of Gujarat, General Administration Department, who is respondent 1 herein, has filed the affidavit-in-reply. Whilst, broadly, the factual position is admitted in that affidavit, some of the statements made in the petition, on which reliance has been placed, have been denied. We shall have occasion to refer to the divergence at the proper time. Petitioner 36 has filed an affidavit-in-rejoinder. In that affidavit-in-rejoinder, some of the statements made by Sri Pandya have been controverted and a number of new facts have been sought to be introduced. However, we do not propose to take into account the new facts introduced for the first time in the affidavit-in-rejoinder, and propose to consider the rival contentions only on the basis of the materials furnished by petition and the affidavit-in-reply.
6. In support of the present petition, Sri Mankad formulates the following three submissions on the basis of which he asks for the prayers mentioned in the beginning of this judgment :
(1) that the orders are violative of the provisions contained in Sub-section (7) of S. 115 and Sub-section (1) of S. 116 of the Act;
(2) that the orders integrating petitioners as clerks simpliciter and not as senior clerks are substantially orders of reduction in rank and, therefore, they violate the protection given to petitioners by Art. 311 of the Constitution; and
(3) that the orders are discriminatory and, as such, they violate the fundamental right of equality before law and offend Art. 14 of the Constitution.
7. We propose to deal with these submissions in the aforesaid order.
8. The first submission is that, the impugned orders affect petitioner's conditions of service to their disadvantage and that, therefore, those conditions cannot be varied except with the previous approval of the Central Government. The submission is based on the proviso to Sub-section (7) of S. 115. In our judgment, the matter is no longer res integra and is concluded by the decision of the Full Beach of this Court in A. J. Patel and others v. State of Gujarat and others [A.I.R. 1965 Guj. 23]. From the facts narrated by us, it is quite clear that, the impugned orders have all been passed for the purpose of integrating petitioners into the service of the new State of Bombay. The problem of integration is quite different from the problem of conditions of service. Their lordships consider in A. J. Patel case (vide supra) this problem at p. 40 and record their conclusion in the following words :
'As stated by us earlier, the question relating to equation of posts and the absorption of persons in certain posts and the appointment of persons to such posts cannot be regarded as falling within the words 'conditions of service' as appearing in S. 115(7) of the aforesaid Act.'
9. In view of this decision, we do not proposed to consider the argument of Sri Mankad in detail. We shall have occasion to refer to some of those arguments but in the context of the second submission which is that the orders violate the protection given by Art. 309. As regards the violation of S. 116, Sub-section (1), in our judgment, there is no merit in that contention. This contention ignores the provision contained in Sub-section (2), which is as follows :
'Nothing in this section shall be deemed to prevent a competent authority after the appointed day from passing in relation to any such person any order affecting his continuance in such post or office.'
10. Sub-section (1) of S. 116 appears prima facie to be a temporary measure. It is designed and enacted to provide that, every person, who, immediately before 1 November, 1956, was holding or discharging duties of any post or office in the former State, shall continue to hold the same post or office in the new State and to have been duly appointed to such post with effect from that date. But, there is nothing in that sub-section to show that, the post so held by any incumbent shall create any permanent and inalienable right in his favour. On the contrary, Sub-section (2) preserves the right of the new State to pass orders which would affect continuance of the holder to any such post or office. That clearly means that, the continuance to hold a post or an office is subject to the right of the State Government to integrate the services and to absorb the servant concerned or to appoint him to an equivalent post. In that view of the matter in our judgment, there is no merit in the first submission and the same deserves to be rejected.
11. As regards the second submission Sri Vidyarthi, learned counsel for respondents, raises a wider issue. The submission which he makes is that, Art. 309 of the Constitution cannot apply at all in the context of the problem of integration. He submits that, that article can be applied only in the context of services which are in existence, in regard to which an appointment has been made and where the authority purporting to dismiss, remove or reduce a Government servant in either the appointing authority or his superior. He contends that, assuming that, under the law, the integrating authority is bound to appoint a servant to be integrated to an equivalent post and if the authority does not do so, the servant has a remedy, the remedy cannot be under Art. 309, but the order of the integrating authority can be challenged only on the ground that the power of integration is abused or is not exercised in a bona fide manner. He contends that, it cannot be guaranteed that, in the case of integration, all servants must necessarily be appointed to the posts which they formerly held and that none of them can be appointed to any post other than that formerly held by him. He says that, if this were so, then, the integrating authority would have to create new posts or to multiply them. He gives the example of the post of an Inspectors-General of Police, and contends that, if there were five areas to be integrated and each had an Inspector-General of Police, then, according to the submission of Sri Mankad, in the new State posts of five Inspectors-General of Police would have to be created. In our judgment, the point raised by Sri Vidyarthi is of considerable importance and, if it does arise for consideration, all the relevant arguments will have to be taken into account and a decision reached. But, we do not propose, in the first instance, to undertake a decision of this wider issue. We do not propose to do so because, the point has not been raised in that form in the affidavit-in-reply. We may mention, however, that, that does not mean that we would not have permitted Sri Vidyarthi to raise that wider question. But, having regard to the fact that, the point has not been raised in the affidavit-in-reply, we do not propose to address ourselves on that wider issue in the first instance. We propose to consider the submission made by Sri Mankad in the first instance and, if we happen to record a conclusion adverse to Sri Vidyarthi, then, we would undertake a decision on that wider issue. Therefore, on the assumption that Art. 309 applies also in the context of integration, we propose to consider the submission whether petitioners have, in fact, been reduced in rank. The argument of Sri Vidyarthi that, Art. 309 cannot apply, as the legislature and the authorities mentioned in Art. 309 can override the provisions of Art. 309 and that is what has been done in the present case, has no merit. It has no merit because, Art. 309 is subject to the other provisions of the Constitution and Art. 309 is one of those provisions to which Art. 309 is subject to. However, the crucial question for consideration is whether, as a result of the orders passed by the new State of Bombay, petitioners have been reduced in rank. Sri Mankad drew our attention to two decisions of the Supreme Court, in which the expression 'reduction in rank' came up for interpretation. The first decision is in High Court of Calcutta and another v. Amal Kumar Roy and others [A.I.R. 1962 S. C. 1704]. This was a case in which the Government servant concerned had lost his place in the list of seniority in his cadre. Their lordships held at p. 1710 that loss of a place in the same cadre did not amount to reduction in rank within the meaning of Art. 309, Clause (2). This is what their lordships observed at the same page :
'The plaintiff sought to argue that 'rank' in accordance with dictionary meaning, signifies 'relative position or status or place,' according to Oxford English Dictionary. The word 'rank' can be and has been used in different senses in different contexts. The expression 'rank' in Art. 311(2) has reference to a person's classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs. Hence, in the context of the Judicial Service of West Bengal, 'reduction in rank' would imply that a person who is already holding the post of a Subordinate Judge has been reduced to the position of a Munsif, the rank of a Subordinate Judge being higher than that of a Munsif. But Subordinate Judges in the same cadre hold the same rank, though they have to be listed in order of seniority in the civil list. Therefore, losing some places in the seniority list is not tantamount to reduction in rank. Hence, it must be held that the provisions of Art. 311(2) of the Constitution are not attracted to this case.'
12. The same principle was repeated by their lordships in the second decision in the case in Shitla Sahai Srivastava v. General Manager, North-eastern Railway, Gorakpur [1966 - II L.L.J. 755]. It will be noticed that, whilst their lordships sin the above two cases have accepted the negative test that, loss of seniority is not tantamount to reduction, the only positive test which they have indicated in the matter of rank is that, rank has reference to classification. But, the mere important point to notice from the passage extracted by us is that, their lordships have also emphasized that the meaning of the word 'rank' differs according to the context. In our judgment, Sri Vidyarthi is right, therefore, in emphasizing the fact that we are not dealing with an existing classification and an order passed in regard to an officer who has a place in such classification. We propose to assume that, though the old Saurashtra State is no more in existence petitioners came into the service of the new State with all the advantages and privileges which they had in addition to the conditions of service. In regard to the latter, there is an express provision in Sub-section (7) of S. 115 that, such conditions of services can be varied. But, there is no such direct provision in regard to reduction in rank. On the contrary, the substantive part of Sub-section (7) of S. 115 probably intends to protect intact the guarantee given in Art. 309. But, the question for consideration is as to what exactly was the rank which petitioners occupied in the former Saurashtra State and what is the rank which is assigned to them now, and if, on a comparison of the two ranks, a conclusion is reached that there has been a reduction in rank, then, a case may arise for serious consideration if the guarantee enshrined in Art. 309 in infringed. We note that none of learned counsel was able to formulate a positive test, but Sri Mankad places his case in the following manner : He says that, petitioners have been affected in three ways as a result of the impugned orders :
(1) that there has been a change in the nomenclature; whereas, formerly, petitioners were designated senior clerks, they are now being designated as mere clerks;
(2) that there has been a retardation in the chances of promotion. According to Sri Mankad, whereas, formerly, petitioners had a reasonable expectation of being promoted to the rank of head clerks, that expectation has now receded in view of the fact that, before they could hope to reach the posts of head clerks, they would have first to be promoted as senior clerks and, after all the existing senior clerks had had their chances of promotion exhausted would the petitioners have the chance or expectation of promotion to the posts of head clerks;
(3) that the seniority of petitioners is affected.
13. In order to understand this third contention, it is necessary to mention a few more facts. From the petition, it appears that, the senior clerks in the former Saurashtra State were all recruited according to the common rules which were applicable to all the departments of the former Saurashtra State. There was only one cadre of such clerks. Some of these clerks were, on the date of the establishment of the new Bombay State, working in the Public Works Department. Petitioners say that, those clerks were absorbed as senior clerks. Therefore, according to petitioners, merely by virtue of the accident that on the appointed day the above senior clerks were working in the Public Works Department, they have been observed as senior clerks and have gone above the present petitioners even though some of them may be their juniors. In addition to the aforesaid three contentions, Sri Mankad places reliance upon some more facts which are brought on the record for the first time in the affidavit-in-rejoinder. For example, one of the new facts which has been brought out in the affidavit-in-rejoinder is that, aforesaid posts of senior clerks were transferable amongst the different departments of the former Saurashtra Government. For the reason which we have already indicated, we do not think it is permissible for us to take these new facts into account in regard to which respondents have had no chance to controvert.
Now, in our judgment, none of the contentions made by Sri Mankad has any merit, The mere fact that petitioners were designated as senior clerks cannot mean that, if they are absorbed as clerks in the new set-up there has been a reduction in rank. The mere identity of nomenclature in the two classes of Government servants, one belonging to the former Saurashtra State and the other to the new State, cannot mean that the clerks hold a common rank. In our judgment, if the identity of nomenclature is regarded as a test, it would be a superficial test at the best. The real point for enquiry in all such cases would be to take into account a number of factors, all of which have a relevance on the question of the rank of a post-holder or an officer. The nature of the duties, the responsibilities, the power the status, the pay and the extent of the territories over which power was being exercised, all appear to be relevant factors, the totality of which would have a relevance upon the question of rank. A person may be designated as a senior clerk in one State, but may actually be performing the duties which are assigned to a person who is designated by the humbler designation of a mere clerk in another State. It is easy to see that in such a case, at the time of integration, the former clerk though called a senior clerk would really belong to the cadre of a mere clerk. Cases of this type did occur in some States. Therefore, in our judgment, mere emphasis upon the identity or difference in the nomenclature on the aforesaid subject if of no consequence. As regards the second contention the retardation of chances of promotion. Sri Mankad relies upon the case of C. K. Appanna v. State of Mysore and others [A.I.R. 1965 Mys. 19]. In this case, a person, who was the seniormost Inspector of Police and who had been recommended for being appointed as Deputy Superintendent for of Police in the Coorg State, was absorbed in the new Mysore State and then promoted by the new State to the rank of the Deputy Superintendent of Police. Later on that officer was demoted to his former rank on the ground that he did not fulfil one of the conditions of promotion, namely, that, he should have been less than fifty-two years of age on the date of promotion. The officer challenged the aforesaid part of the rule on the ground that, it violated the proviso to Sub-section (7) of S. 115 of the Act inasmuch as the previous approval of the Central Government had not been obtained to that part of the rule so far as his case was concerned. That contention was upheld. In our judgment, this case has no application to the facts of the present case and, in fact, having regard to the Full Bench case which we have already referred to, effect cannot be given to the principle underlying this Mysore decision. In Mysore case, it is important to notice that, the order of reversion was passed after the officer concerned was promoted to the rank of the Deputy Superintendent of Police and, therefore, the question of his reversion or reduction in rank had necessarily to be decided in the context of the classification of services existing at the time when the order of demotion was passed. There was no question of any integration of services in that particular case, as we have in the present case. Moreover, in the Full Bench case of this High Court, it has been definitely held that, the condition of services is different from the integration of service and, therefore, in our judgment, Mysore case cannot help Sri Mankad in substantiating his submission. The third contention, in our judgment, is directly opposed to the Supreme Court decisions which Sri Mankad has brought to our notice. Under the circumstances, in our judgment, none of the contentions raised by Sri Mankad can establish that, petitioners had been reduced in rank.
14. However, Sri Mankad did attempt to satisfy us that, there was an averment that the duties which petitioners were performing in the former State of Saurashtra were not less responsible than the duties which were being performed by the senior clerks of the former Bombay State. This, however, has been denied by the affidavit-in-reply and, in our judgment there are no materials son the record of the case which can satisfy us that the duties which the senior clerks of the former State of Saurashtra were performing were the same as the duties which the senior clerks in the new Bombay State are not performing. The averment on the latter subject is, in our judgment, too vague to enable us to reach any definite conclusion. It is true that, in Para. 13 of the petition, petitioners have narrated the duties which they themselves perform. But in our judgment, such a narration is not enough. In order that a comparison may be instituted between the two sets of duties, petitioner should also have averred as to what the duties of the senior clerks in the new Bombay State are, and, in the absence of any such averment, in our judgment, it is not possible to say that the nature of the duties or the responsibilities of petitioners have changed. The only other circumstance which remains is that, petitioners have been classed together with junior clerks of the former Saurashtra State. But, in our judgment, that again is not decisive. If, in the opinion of the Government, and which opinion has not been challenged on the ground of malice or mala fides, the post of a senior clerk in the former Saurashtra Government is not equivalent to the post of a senior clerk in the new Bombay State, then, in our judgment, the mere fact that petitioners happen to be classed together with persons who were junior clerks with them in the former regime, cannot make them reduced in rank. In this connexion, it is important to notice that, the new State of Bombay was acting in accordance with the four principles which we have mentioned above. Sri Mankad's complaint was that, petitioners satisfied three out of those four principles and, in spite thereof they have been equated to the posts of clerks simpliciter. Prima facie, this appears to be so. But, there is nothing in the relevant circular of the Government, and this we are saying on the assumption that the circular has legal efficacy, which shows as to how the four principles have to be applied in practice. If all the four principles had applied to the facts of the present case, then, probably, the case of petitioners, either on the basis of an infringement of the protection under Art. 309 or on the basis of violation of the principle of equality before law, might have deserved consideration. But, having regard to the fact that, in the matter of pay the two classes of Government servants were not identical, in our judgment, it cannot be said that the new State of Bombay had acted in a manner so that it can be stated that petitioners had been reduced in rank. In that view of the matter, in our judgment, Sri Mankad's second submission that petitioners' right under Art. 309 has been violated, must be rejected.
15. Before we conclude the discussion on the second topic, we may refer to the case of State of Maharashtra v. Ministerial Services Association, Wardha, and others [1966 - II L.L.J. 132]. which was referred to by Sri Mankad in this connexion. That was a case of persons who were first grade clerks in the former Madhya Pradesh State and who contended that they should have been absorbed as aval karkuns in the new State of Bombay. In support of this prayer, the clerks raised two contentions. The first was that, the new State was bound to find an equivalent post for the first grade clerks and that, if there was no such equivalent post, they were entitled to be absorbed to the nearest equivalent post, which was that of aval karkuns. The second contention was that, by not so assigning them, the new State had discriminated against petitioners in that case. Both these contentions were rejected by their lordships of the Supreme Court. It is true that, the aforesaid contentions were raised in support of the submission that, the action of the State Government was discriminatory. But, in our judgment, the categorical rejection of the first contention that, in the process of integration the new Government was bound to find an equivalent post for petitioners in that case, is significant and shows that, there is no merit in the contention that, in every case where an equivalent post is not found, the rights of the Government servants in the old regime come to be violated.
16. In our judgment, the third submission of Sri Mankad has also no merit. That submission must also fail for want of proper allegations and materials which would substantiate the case of discrimination. The first is the are urged in the petition in support of this plea of discrimination. The first is the absorption of the Public Works Department senior clerks as senior clerks in the new State. We have already pointed out the circumstances in which such clerks were absorbed as senior clerks in the new State. The second fact, on which reliance is placed is that, the members of the Secretarial staff of the former Saurashtra State were absorbed as members of the Secretariat staff post to post in the new Bombay State. Sri Mankad draws our attention to the fact that in the affidavit-in-reply, the latter allegation has not been denied. This is so. But, in our judgment, it is difficult to see how the absorption of the members of the former Secretariat staff of the Saurashtra Government can be used as a material for establishing the point of discrimination in connexion with the absorption of petitioners as mere clerks. The two sets of clerks are differently situated. Moreover, we have no idea as to how the members of the Secretariat staff in the former Saurashtra State were situated vis-a-vis the Secretariat staff in the new Bombay State. Under the circumstances in our judgment, the above fact is not of relevance on the question of discrimination. As regards the retention of Public Works Department senior clerks on the cadre of senior clerks in the new State, the affidavit-in-reply has given the following explanation :
'I submit that inter alia having regard to the magnitude and complexity of work in the former State of Bombay the duties and responsibilities of the senior clerks in the Public Works Department in that State were considered higher and greater than those of the senior clerks of the other departments in the former State of Saurashtra. Again, the pay-scale of the senior clerks of the former State of Saurashtra in the Public Works Department was Rs. 75-120, and the pay-scale of the junior clerks the same department in the said State of Saurashtra was Rs. 55-105, whereas the pay-scale of senior clerks in the said department of the former State of Bombay was Rs. 92-140.'
17. It is quite clear that reference to the State of Bombay in first part of the aforesaid passage is a mistake for a reference to the State of Saurashtra. The mistake is quite clear both from the context as well as the use of the word 'former' before the words 'State of Bombay.' Therefore, the explanation which respondents have offered is that, in regard to the senior clerks who came to hold the post in the Public Works Department of the new State of Bombay, the responsibilities which they were discharging, were considered to be higher than the responsibilities of the senior clerks of the other departments and if, on that ground, the aforesaid persons have been given the position of senior clerks in the new cadre, we fail to see how it can be stated that, petitioners have been discriminated against. It cannot be disputed that, except in the aforesaid department, the senior clerks in all other departments have been treated alike. The utmost that could be said would be that, having regard to the pay-scales of the senior clerks in the former Saurashtra State, the Public Works Department senior clerks should have also been absorbed as clerks. But, if the Government were to act in that particular manner, it would be undoubtedly ignoring another principle which they had set to themselves, and that principle was the principle of the nature of duties performed by the clerks concerned. In our judgment, after reorganization took place and when the Public Works Department clerks happened to hold the posts in the Public Works Department of the new State of Bombay, it cannot be said that the two sets of senior clerks stood in the same category for the purpose of integration. Sri Mankad tries to emphasize the fact that the post of senior clerks were transferable, a fact which is disclosed for the first time, in the affidavit-in-rejoinder. We do not think we can take the latter fact into account in deciding the contention. It is well-known that, it is for petitioners to establish a case of discrimination and it is for them to make proper averments on that particular subject, so that respondents can have a chance of controverting the factual part on which the contention of discrimination is based. Under the aforesaid circumstances, in our judgment, there is no force in the third submission of Sri Mankad also and the same deserves to be rejected.
18. Before we close the judgment, we may mention that, Sri Vidyarthi had, after the facts were stated, raised a few preliminary points. They were -
(1) that the Central Government was a necessary party or, in any case, a proper party,
(2) that the State of Maharashtra was a necessary or, in any case, a proper party,
(3) that the petition suffered from delay and laches and
(4) that a joint petition by thirty-six persons was not permissible in law.
After hearing Sri Vidyarthi for some time on the aforesaid four points, we decided to hear Sri Mankad on the merits, stating that, if there was any case on merits made out by petitioners, we would enter into the technical defences raised by Sri Vidyarthi. Having regard to our conclusion on the merits, we have not entered into the merits of the aforesaid preliminary objections. We may mention that, three of these preliminary objections were also raised in the Full Bench decision already referred to, and were not pressed. However, we did not consider the objections first, though they were preliminary, because, the present petition having been filed in 1962, we did not like to throw off the present petition merely on the aforesaid technical grounds without first entering into the merits of the case.
19. For the aforesaid reasons, the petition must fail. But, in the circumstances of the case, there will be no order as to costs. Rule discharged. No order as to costs.