P. Ramakrishnan, J.
1. These writ appeals are filed against the decision of Kailasam, J., in W.P. Nos. 3926 to 3931 of 1967. The prior facts, so far as they are necessary for a consideration of the matter in controversy in these appeals, can be put down briefly.
2. The writ petitioners entered service in the Posts and Telegraphs Department as clerks on various dates between 1937 and 1940. The post of Accountant carried a higher scale of pay, and it is, therefore, a promotion post from the clerical grade. Rule 273 of the Post and Telegraphs Manual, Volume IV, prescribes for an examination being held in order to obtain a competent class of accountants for post offices.' Rule 2 73 (b) lays down that the number of candidates to be selected to appear at the examination will be ten times the number of vacancies minus the number of officials in the ordinary time-scales of pay who have passed the examination but who have not been provided for as accountants or assistant accountants. Rule 273 (e) provides that each candidate will normally be allowed three chances to appear for the examination, but in addition to this, a fourth chance will be allowed provided that the candidate secures at least 35 per cent. marks in the aggregate in the third chance. Rule 276 reads:
Appointments to posts of accountants or assistant accountants in the ordinary time scales of pay carrying a special pay will be made from those officials who have passed the accountants examination according to their seniority in the clerical cadre.
Rule 276-A (a) provides that officials on the ordinary clerical time-scales of pay, who have passed the accountants examination, will be eligible for appointment to posts of accountants or assistant accountants in the lower selection grade on 160-10-250 in preference to their seniors in the general gradation list, who have not passed the accountants examination. Such appointments will normally be made in order of seniority, but the appointing authority may, in his discretion, pass over any senior official whom he does not consider fit for such promotion. The petitioners had passed the qualifying examination on different dates. The petitioners in W.P Nos. 3926, 3927, 3929 and 3931 passed in 1951, the petitioner in W.P. No. 3930 in 1954 and the petitioner in W.P. No. 3928 in 1957. They began to officiate in the higher grade of accountants on various dates in 1958, 1959 and 1961. At the time when these people were promoted in the years mentioned above, there were some others, who are respondents 2 to 8 in the writ petitions before Kailasam, J., These seven persons are Allah Baksh, Ambalavanan, Sambasivam, Denapal, Chinnakutty, Sundararajan and Kuppuswamy. They had entered service as clerks later than the petitioners but had passed the accountants examination before the petitioners, three in 1947 and four in 1950. But the vacancies in the accountant posts were apparently taken up for being filled up only in 1958, and in subsequent years. By that time the petitioners also had qualified by passing the examination. It would appear as if the promotions were made at that stage, of all these persons who had become qualified, according to their seniority in the clerical grade. This position is made clear in the following tabular statement.:
Serial No. Name of the Date of Subs- Years of Date from Date of Con-
in the Gra- official. tantive entry passing P. which Offg. firmation as
dation in T/S Clerk O.& RMS as LSG Acc- LSG Accoun-
List. Accounta- tants. tant.
633 G.S. Subramaniam. 22.5.1937 1951 1.12.1958 10.7.1963
678 V. Subramania
Mudali 17.6.1938 1951 11.9.1959 1.3.1964
700 M. Subramaniam 15.8.1938 1951 11.9.1959 1.3.1964
717 T.John Chelliah 12.11.1938 1951 11.9.1959 1.3.1964
818 V. Srinivasan 10.2.1940 1954 11.9.1959 1.3.1966
823 K. S.Krishnaswamy 1.3.1940 1957 11.9.1959 (not con-
827 A. Allah Buksh* 1.3.1940 1947 7.10.1961 1.3.1962
855 N. C. Ambalavanan * 28.6.1940 1947 1.3.1962 1.3.1962
894 V. Sambasivam* 1.9.1940 1947 3.4.1962 2.6.1962
902 T.S. Venkataraman 1.9.1940 1951 6.7.1961 1.3.1965
1065 A. Denapal* 16.12.1941 1950 1.6.1962 17.6.1962
1149 R. Chinnakutty* 1.1.1943 1950 7.2.1963 13.4.1963
1272 P. Sundara Rajan* 1.2.1944 1950 29.3.1963 8.5.1963
1462 A. Kuppusamy* 1.3.1946 1950 10.7.1963 10.7.1963
The last column shows that the respondents, though they were appointed to officiate as accountants much later than the petitioners, were confirmed as accountants earlier than the petitioner (except K.S. Krishnaswamy)
3. The complaint of the writ petitioners is primarily against the delay and postponement of their confirmation in the posts of accountants and their confirmation after the confirmation of the respondents even though they were promoted to officiate in the posts earlier than the respondents. They urged that they have been unfairly discriminated against, in the matter, and that such discrimination involved a violation of Articles 14 and 16 (1) of the Constitution.
4. The reason alleged by the first respondent, viz., the Director of Postal Services, Posts and Telegraphs, for making the above distinction is this. It is based upon a circular dated 18th December, 1959, marked as Exhibit-A, issued by the Director General, Posts and Telegraphs, New Delhi.
A reference is invited to Rules 276 and 276-A (a) of P and T Manual, Volume IV according to which appointments to the Posts of Time Scale Accountants and L.S.G. Accountants in Post Offices and RMS are made from those officials who have passed the Post Office /RMS accountants examination in the order of their seniority in the clerical cadre. The question of revising the basis for appointment to these posts has been under consideration for some time past and it has now been decided as follows:.
(d) L.S.G. Accountants.
This is a separate cadre and appointments to this cadre are made on a circle basis. Appointments to these posts will, from the date of issue of these orders, be made according to the year of passing the Post Office/RMS accountants examination. Those qualifying in the same year will be appointed in the order of their seniority in the clerical cadre. These orders will not affect the seniority of officials, who have already been confirmed as L.S.G. Accountants. Officials who were appointed before the issue of these orders against regular vacancies and are awaiting confirmation in their posts will continue to officiate in their posts. They will, however, be confirmed in their turn in accordance with the revised orders. For this purpose the seniority of all officials who have passed Accountants Examination whether officiating or not will be refixed in accordance with present orders.
5. The petitioners are primarily aggrieved against the last part of para. (d) of the above circular (which is underlined by us) because it applies to them. They were officials who were appointed against regular vacancies in accountants posts, and were awaiting confirmation in those posts before the issue of the above Circular 18th December, 1959 except in the case of T.S. Venkataraman petitioner in W.P No. 3926/67 who was promoted in 1961, after the circular was issued, but before the respondents were promoted to this higher grade. Though the revised Circular permitted them to continue to officiate in their posts, they were to be confirmed under the revised Circular, not in accordance with the date of promotion to their posts in the officiating cadre, but in accordance with the date when they passed the qualifying examination.
6. The learned Judge (Kailasam, J.) observed, first of all, and we entirely agree with him, that the persons whose seniority is affected by an order of the above kind by the Director General of Posts and Telegraphs admittedly an administrative order--cannot complain that the provisions of Article 311 (2) of the Constitution are violated. Obviously, the revision of seniority is not one of the punishments visualised in Article 311 (2) of the Constitution. Next, the attention of the learned Judge was drawn to the decision of the Supreme Court in Mervyn Continho v. Collector of Customs : (1967)ILLJ749SC , we will refer to the particulars of this decision in some detail later in the judgment. The learned Judge, however, observed that the revision of seniority in the present case on the basis of passing of the examination appeared in his view to be a valid exception to the rule that the seniority should normally be fixed according to the date of promotion to the higher grade. Further, the learned Judge held that the revised rule was more equitable in that a person who had passed the examination earlier and commenced his service in that cadre should be given seniority to the person, though a senior in the clerical grade, who had passed the examination and qualified himself to the higher grade much later. The learned Judge observed that there was no constitutional principle involved in refixing the seniority of the persons already in the higher grade in the above manner. The attention of the learned Judge was drawn by learned Counsel for the petitioners to a decision of the Mysore High Court in Vegneswaran v. Director General, Posts and Telegraphs, New Delhi : AIR1967Kant235 , which had dealt with the identical circular as in this case. The learned Judge (Kailasam, J.) did not agree with the construction put on the circular dated 18th December, 1959 by the Mysore High Court. Kailasam, J., dismissed the writ petitions. The writ petitioners have come in appeal before us.
7. After a careful consideration of the matter, we are of the opinion that the appeals have to be allowed. We have nothing to say about the validity of the Circular dated 18th December, 1959, so far as it makes a modification of the existing Rules 276 and 276-A, in regard to the persons in the clerical grade, who had not yet been promoted to officiate in permanent vacancies, in the higher grade of accountants. What the Circular prescribed in their cases was that those qualifying in the same year will be appointed in the order of seniority in the clerical cadre. There is a further direction that promotion to the accountants posts will be made according to the year of passing the examination. In other words, if it happens in the course of the scheme of promotion in any particular year that a person who had passed the examination in an earlier year has not been promoted and is awaiting promotion, that person will get preference over those persons who had passed the examination later irrespective of seniority in service. This presupposes a list of persons qualified by the examination being drawn up on a year-war basis, their seniority within a year being fixed in accordance with their seniority in the clerical cadre, and promotion to the higher grade being made, first of all, in accordance with the year of passing the examination and secondly in regard to those who pass the examination in a particular year according to the seniority in the clerical cadre.
8. Unfortunately, this precise and detailed procedure was not followed when the petitioners were promoted on the basis mentioned in the tabular statement above, the promotion being strictly in accordance with their seniority in the clerical grade. The rules which then existed did not provide for a detailed scheme of promotions on year-war basis, persons being grouped according to the year of passing the examination. Though the Rule 273 (b) which we have extracted above provides for a fair estimate of the number of recruits to be selected at each examination, based upon the estimate of vacancies, the rules did not provide as to how to deal with persons who had passed the examination in one year but who could not be promoted immediately, and when by the time the decision is taken to promote these clerks against vacancies other clerks had become qualified by passing the examination in the succeeding years. The prior practice was that the rule that promotion should be in accordance with the seniority in the clerical cadre was strictly applied, to all the persons who had qualified in successive years and remained on the waiting list. The writ petitioners were promoted in this manner and their promotion was made before pro-notion of the respondents, relying on their seniority notwithstanding the fact that the respondents had passed the examination earlier than the petitioners, though they were-junior to the petitioners in the clerical cadre. What the impugned Circular did was to alter the above position by reason of the introduction of a new principle that the year of passing the examination should be the basis for promotion and not the relative seniority in the clerical grade. On the date when the Circular was applied in this manner retrospectively for the petitioners, excepting T.S. Venkataraman, the petitioner in W.P. No. 3926 of 1967, others were already officiating in the higher grade. They were so officiating under the rules which entitled them to confirmation according to the length of service and the seniority in the grade of accountants. It is not alleged by the respondents that this officiating promotion was a purely temporary promotion, which carried with it no right of counting the service for seniority, confirmation etc. The impugned circular has laid it down that the circular would apply to officials appointed before the issue of the order against regular vacancies and are awaiting confirmation in their posts. The petitioners answer to this description. The respondents who were promoted to officiate in the posts on several dates in 1962 and 1963, so far as their position in the cadre of accountants is concerned occupied the same position as the petitioners who had been promoted earlier. They came from a single lower cadre, namely clerks. All of them satisfied, however, the qualification for being accountants, namely pass in the accountants examination. That some of them passed earlier in the examination and some of them passed later in the examination would have no relevancy, so far as the people who had already commenced to officiate in the higher grade are concerned. If, as between the officials who officiate in the higher grade, a distinction were to be made in the matter of confirmation and seniority, on the basis of the date of their passing the examination it will be introducing a totally irrelevant consideration, for the purpose of their confirmation. It would also amount to making an invidious distinction between persons who, so far as the requirements for the higher grade in which they are acting namely the grade of accountants are concerned, are identically situated. Such discrimination, in our opinion, will attract the bar under Article 16 (1) of the Constitution, which provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
9. The principle of invidious distinction violative of Article 16 (1) of the Constitution has been applied by the Supreme Court and the other High Courts in several decisions. In Aswini Kumar Rath v. Director of Public Instruction (1966) 2 L.L.J. 277, the High Court of Calcutta dealt with a situation which is explained by the following reasoning of the Court:
The mere fact that two different cadres are created does not show whether Article 14 or 16 has or has not been violated, but once having included employees into a single grade or unit of employment, it is not permissible for Government to provide a differential treatment between two sections of the same unit with restrospective effect.
The same principle was reiterated by the Punjab High Court in a more recent decision in Punjab State v. Lekh Raj . In that case, there was a separate cadre of Vaidyas and Hakims in the State Service Class III. They were initially appointed in the different states which merged into the Patiala and East Punjab States Union. Subsequently, they were formed into a single cadre on the same conditions and in the same grade with exactly same or similar nature of duties to perform under one and the same designation. But by a subsequent notification, they were differentiated in their pay, the distinction being based upon whether they held a five years' degree or not. The Punjab High Court struck down that distinction observing:
Once this had happened, some members of the unified cadre could not be treated dissimilarly as against others of the same cadre in the matter of their pay and other relevant conditions of service on the ground that some of them possessed higher or better qualifications. It is settled law that the equality of opportunity V guaranteed by Clause (1) of Article 16 of the Constitution does not end with the stage of initial appointment, but would inevitably govern all matters relating to employment including questions of emoluments, chances of promotion etc.
10. In Roshan Lal v. Union of India : (1968)ILLJ576SC , we find the following observations at page 1893:
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.
11. We will refer now to the decision of the Supreme Court in Mervyn Continho v. Collector of Customs : (1967)ILLJ749SC . The petitioner in that case was an Appraiser in the Customs Department. The system that prevailed for the recruitment to the posts of appraisers was that 50 per cent. was reserved for direct recruitment, while the remaining 50 per cent. was filled up by promotion from subordinates in the Customs Department. The seniority in the cadre of appraisers was determined by a system of rotation, i.e., the list is arranged in such a way that there is one person from the direct recruits and one from the promotees alternatively. The petitioner also contended that in the cadre of Principal Appraisers who are promoted from Appraisers, there was discrimination and violation of equality of opportunity, inasmuch as the same method was followed in the matter of fixation of seniority of principal Appraisers, though in their case, there was only one source of recruitment, i.e., by promotion from the cadre of Appraisers. The Supreme Court rejected the petitioner's claim so far as the seniority of Appraisers inter se was concerned. But the petitioner's grievance in regard to the fixation of seniority inter se as among the Principal Appraisers was upheld, on the ground that it was violative of Article 16 (1) of the Constitution. The Supreme Court observed:
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 refixing 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 to Appraisers which is the only sources of recruitment to the principal Appraisers' grade.
A Similar Principle is also laid down by the Supreme Court in (S.K. Ghosh v. Union of India : 3SCR631 ). In the present case, the source of recruitment to the accountants' grade is the clerical grade. It is open to the authorities to fix the seniority, before person are promoted to the accountants' cadre, on the basis of the date of their qualifying by the examination. Once a number of people have been promoted and they had begun to officiate in the higher grade, and all of them are qualified at the time of their promotion to officiate by having passed the examination, it will be discriminatory to ignore the seniority by the length of service, and revert to the date of passing the qualifying examination for that purpose.
12. We will now refer to the decision of the Mysore High Court in Yegneswaran v. Director General P. and T. : AIR1967Kant235 . As we have done above, the learned Judges of the Mysore High Court understood the term ' according to the year' in the circular to mean that when appointments are made at a given point of time, the appointees should be assigned ranks in the sequence in which the qualifying examination was passed. They also observed that once the promotions are made or the names of those selected are entered in the panel in that Order, obedience to the directive becomes full and complete, and the seniority determined in that way is what holds the field unaffected by promotions or selection of others on the next occasion or the subsequent occasion. They also observed that the directive did not mean that, when persons appointed on more than one occasion in that way have not been confirmed in their posts, all those persons who have not been so confirmed, should be grouped together, and that the seniority in regard to all of them should be determined with reference to sequence in 'which the qualifying examination was passed, and that the mixing up of the several groups of appointees for common treatment in the determination of their seniority inter se was not authorised by the Director-General's memo. The learned Judges also referred to the grave consequence which would result, if a different View was adopted. They have referred to this consequence in paragraphs 18 and 19 of their judgment:
The acceptance of the other construction would produce the strange consequence that a person who was appointed as an accountant many years earlier would become junior to one who was appointed many years later on the extremely slender foundation afforded by that junior's earlier success in the qualifying examination. It shifts the importance of the selection or promotion to which the appointee owes his appointment under Rule 272-A (it) to success in the qualifying -examination. An interpretation which endows the success in the qualifying examination, which, by itself does not ensure an appointment to the post of an accountant, with an importance which is greater than that which should be attached to the selection or promotion which alone takes the appointee to that post, should not commend itself to us unless the language of the memo. of the Director-General is incapable of any other interpretation. And, we do not think that such is its language.
We feel reluctant to accede to a construction which produces an unreasonable and alarming consequence, such as, the acquisition of seniority by a person who is appointed to the post of an accountant long after someone else had been appointed 'to that post, on the basis of his earlier success in the qualifying examination. The regulation of seniority in that way which of course regulates in its turn the right to confirmation, does not have the sufferage of reason, and the constant fear in the mind of an unconfirmed accountant of being overtaken by some one still in the clerical cadre would introduce an element of insecurity and precariousness so detrimental to the growth of an efficient and contented public service.
13. We agree, in principle, with the view expressed above by the learned Judges of the Mysore High Court, though our approach to the question as outlined above is slightly different. The impugned circular can be treated as valid in regard to persons not promoted to the higher grade. But once promotion has been made of qualified persons to the higher grade, whether it be on the basis of seniority in the clerical grade, or on the basis of a year-war list or panel, fixing seniority on the basis of the date of passing the examination, those people who have commenced to officiate in the higher grade should not be discriminated against by a subsequent refixing of seniority on the basis of the date of their passing the qualifying examination. In their case, unless there are other administrative reasons, the date of promotion to the higher grade and the seniority consequent on such promotion should be the rule for confirmation, so as to avoid charges of discriminative treatment falling within the purview of Article 16 (1) of the Constitution.
14. The appeals are allowed with costs. Advocate's fee one set Rs. 250.