High Court · 2009

promotion under the Provincialisation Rules of 1982, representations were made by the teachers of that category, whereafter, by communication dated 3.8.90 addr essed by the Deputy Secretary to the Govt. of Assam, Education Department, the D irector of Secondary Education, Assam was informed that (cid:28)Classical Teachers of H indi, Sanskrit, Arabic, Persian, Assamese, Boro etc. having degree qualification may be included in the cadre of general teachers for giving benefit of promotio n to higher posts in the same line of general teachers (cid:29). It is the case of the a ppellants and the writ petitioners that thereafter promotions were given to many incumbents who were working as Classical Teacher. As the said document dated 3. 8.1990 would be relevant for the discussions that will follow, the said is being extracted hereinbelow :- (cid:28)Government of Assam Education (Personnel) Department ******* No. EPG.890/87/29 Dated Dispur, the 3rd August, 1990 To : The Director of Secondary Education, Assam, Kahilipara, Guwahati-19 Subject : Inclusion of the classical teacher of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo etc. having degree qualification in the cadre of General Teachers for promotion to higher posts. Reference : Your letter No. GB-EST/ASSO/3/86/216, dated 26.6.90. Sir, With reference to your letter on the subject cited above, I am directed to say that the classical teachers of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo etc. having degree qualification may be included in the cadre of general te achers for giving benefit of promotion to higher posts in the same line of gener al teachers. Yours faithfully (R.A. Hazarika) Deputy Secretary to the Govt. of Assam Education Department. (cid:29) The Provincialisation Rules of 1982 were amended in the year 19 10. 91. Of the several amendments made it will be necessary for the Court to notice the amendment of Rule 3 of the 1982 Rules by which the Graduate Teachers of High er Secondary Schools and Multi Purpose Schools or High Schools and senior Classi cal Teachers or senior Hindi Teachers having Bachelor’s degree as general qualif ication were included in Grade IV of the Service. Consequently, in Schedule-I to the Rules the following four categories of employees were included in Grade IV of the Service having the same scale of pay: (cid:28)(i) Graduate Teacher of Higher Secondary and Multipurpose School. (ii) Graduate Teacher of High School. (iii) Graduate Teacher of High Madrassa. (iv) Senior Classical Teachers or Senior Hindi Teachers (only the categories sho wn in Sl. 4 in Schedule-II). (cid:29)

11. The senior Classical Teachers or senior Hindi Teachers so encadr ed in Grade IV were specified by Rule 3, as amended, to be only of the category shown at serial No. 4 of Schedule II details of which are extracted below: (cid:28)Sl. No. Name of the post Qualific Cadre

1. 2. 3. 4. & & & & & & & &. & & & & & & & & & & & & & & & & & &. Sr. Classical Teacher/Senior Hindi Teacher & & &. & & &. & & & & Grade-IV bject. (cid:29) & & & & & &. & & & & & & & & & & & & &.. Graduate with Hindi/ Sanskrit/ Arabic/Persian as one of the su

12. Similarly, senior Classical Teachers or senior Hindi Teachers sh own at serial No.5 of Schedule II, junior Classical Teachers or junior Hindi Tea chers shown at serial No.8 of Schedule II and junior Classical Teachers or junio r Hindi Teachers shown at serial No. 10 of Schedule II were included in Grade V , VI and VII of the Service respectively.

13. Different pay scales had been provided to the incumbents include d in Grade IV of the Service by Schedule I to the 1991 Amendment Rules as well a s to those included in Grade V, VI and VII respectively. Schedule II to the 1991 Amendment Rules prescribed different qualifications for the incumbents holding different posts of Classical Teachers included in Grade IV, V, VI and VIII of th e Service. Another significant fact which must be taken note of is that the 1991 Amendment Rules did not cause any alteration in Rule 13 of the 1982 Rules deali ng with fixation/ determination of seniority.

14. Under Rule 9, as amended by the 1991 Rules, promotional avenues to Grade II and II of the Service have been provided for the incumbents in Grade IV subject to their fulfilling the qualifying service mentioned in Rule 9. In o ther words, Classical Teachers with graduate qualification had been made eligibl e for promotion to the Grade II as well as Grade III of the Service as constitut ed by Rule 9, as amended, brought into force by the 1991 amendment.

15. The Assam Secondary Education (Provincialised) Service Rules, 20 03 came into force from 11.8.2003 by repealing the Rules in force i.e. the 1982 Rules, as amended from time to time. Rule 2(n) of the 2003 Rules defines graduat e teacher in the following terms:- (cid:28)2(n). (cid:28)Graduate Teacher (cid:29) means the category of Assistant Teacher in High/ Highe r Secondary/ Higher Secondary and Multipurpose/ High Madrassa Schools for whose appointment the minimum qualification prescribed is a Graduate degree in Arts, S cience or Commerce including Demonstrators in Higher Secondary/ Higher Secondary & Multipurpose School. (cid:29)

16. Rule 3(1) sets out the different classes and categories constitu ting the Service. By Rule 3(1)(b)(ii), Hindi Teachers having Bachelor’s degree and Classical Teachers (Sanskrit, Arabic, Peresian, Assamese language Teachers) have been included along with Graduate Teachers in Class II(Junior) of the Serv ice. Rule 14 deals with recruitment to the post of Vice-Principal/ Headmaster/ A ssistant Headmaster etc. and provides that the post of Vice-Principal shall be filled up by promotion, inter alia, from Graduate Teachers having twelve years’ teaching experience. Rule 14(2) provides for promotion to the post of Headmaster whereas Rule 14(3) provides for promotion to the post of Assistant Headmaster. Promotion to both the posts of Headmaster and Assistant Headmaster is required t o be made on the basis of seniority determined in accordance with Rule 24(2) of the Rules. Rule 14(4) prescribes the conditions of eligibility for promotion to the post of Headmaster/ Assistant Headmaster by requiring a candidate to be a gr aduate in Arts, Science or Commerce with B.T. or B.Ed. degree and further requir ing such a candidate to possess at least ten years of teaching experience as a g raduate teacher in so far as the post of Headmaster is concerned and seven years of such experience in so far as the post of Assistant Headmaster is concerned. Rule 24(2)(i) stipulates that the seniority for promotion to the post of Headmas ter/ Assistant Headmaster shall be determined from the date of joining of the in cumbent as a graduate teacher in the school. Rule 24(2)(ii) contemplates that Cl assical Teachers of Hindi, Sanskrit, Arabic, Persian, Arabic, Boro etc. having a degree qualification are to be included in the cadre of Graduate Teachers for g iving the benefit of promotion to the higher post in the same line of general te achers. However, their seniority is to be counted with effect from 3.8.1990 i.e. the date of the Government Letter referred to earlier. It is the validity of th e aforesaid provisions of Rule 24(2)(ii) of the 2003 Rules that has come under c hallenge in the present cases.

17. Sri D.K. Mishra, learned senior counsel for the petitioners in W .P(C). No. 7125/2003 has submitted that in all the schools covered by the Provin cialisation Act of 1977 apart from graduate teachers, posts of Language Teachers and Classical Teachers were in existence. This has been sought to be demonstrat ed by Sri Mishra by placing before the Court the provisions contained in the Ass am Secondary Education (Middle English & High Schools) (Provincialisation) Rules , 1979 framed in exercise of powers under Section 7 of the Provincialisation Act of 1977. Sri Mishra has relied on Rule 3 of the aforesaid Rules of 1979 to show that existence of one post of graduate Classical Teacher and one Hindi Teacher having qualification in Hindi equivalent to Bachelor’s degree were essential con ditions of eligibility for provincialisation under the 1977 Act. Classical Teach ers, therefore, were existing employees within the meaning of the said definitio n contained in Section 2(vi) of the 1977 Act. Under Section 3(1) of the said Act , by the deeming provision contained therein, such employees became Government s ervants from the date of their appointments subject to encadrement in the approp riate cadre to be made by the Rules framed in exercise of powers under Section 3 (3) of the Act. It is the further contention of Sri Mishra that the encadrement effected under the 1982 Rules though did not specifically mention Classical Teac hers, as such Classical Teachers are also graduates, the expression ’Graduate Te acher’ appearing in Rule 3 (1)(e) included all graduate Classical Teachers also. Sri Mishra also referred to the provisions of the ROP Rules of 1964, 1975, 1983 (as amended), the ROP Rules of 1990 and 1994 to show that under each of the afor esaid ROP Rules the pay scale of Graduate Teachers of High Schools and Hindi/ Cl assical Teachers (Senior Grade) is one and the same.

18. Sri Mishra has further contended that both Graduate Teachers and graduate Classical Teachers were existing employees of the schools provincialis ed under the 1977 Act; both had the same qualifications and were in the same sca le of pay. In such circumstances, according to the learned counsel, there was a n implied encadrement of Classical Teachers in the cadre of Graduate Teachers as made by the 1982 Rules. Under Rule 13 of the 1982 Rules seniority was to be det ermined from the date of continuous appointment/ date of joining, Rule 24(2)(ii) , therefore, could not have conferred the benefit of seniority to Classical Teac hers w.e.f 3.8.90. Vested rights of the Graduate Classical Teachers have been ar bitrarily sought to be taken away by the 2003 Rules, contends the learned counse l.

19. In so far as the letter dated 3.8.1990 is concerned, Shri Mishra has submitted that the same cannot be construed to be an authority for the enca drement of Classical Teachers in as much as under the Provincialisation Act of 1 977, encadrement is to be made by Rules framed. The learned counsel has pointed out that because the Classical Teachers were already in the cadre of Graduate T eachers the promotional avenues spelt out by the letter dated 3.8.1990 could hav e been provided.

20. It is the further submission of Shri Mishra that the encadrement of Classical Teachers along with Graduate Treachers in Grade-IV of the service by the 1991 Rules had merely made it explicit what was all along implicit and fu rther that Rule 13 of the 1982 Rules stood unaltered by the 1991 amendment so as to justify adoption of any other criteria for determination of seniority except length of service. Shri Mishra has also referred to certain promotion orders of Classical Teachers enclosed to the reply affidavit filed in the writ petition ( W.P.(C) No.7125/03) to contend that such promotions had been given to Classical Teachers without computation of qualifying service on the basis of the date of t he Government letter i.e. 3.8.1990 and some classical Teachers had been promoted even though they had not completed the requisite 12/7 years of service computed with effect from 3.3.1990. All the said facts, according to the learned counsel , squarely indicate that Classical Teachers were very much a part of the cadre o f Graduate Teachers and it is the wrongful denial of promotion which was correct ed by the Government letter dated 3.8.1990 and the amendment of the 1982 Rules m ade in the year 1991. However, the said position was sought to be unsettled by t wo other Government letters dated 4.5.2001 and 15.6.2002. Consequently, the same were challenged in proceedings before this Court registered and numbered as W.P .(C) No.462 of 2002 and 5026 of 2002. Both the aforesaid writ petitions were wit hdrawn once the Rules of 2003 were enacted and brought into force with effect fr om 12.8.2003.

21. As the aforesaid letters/communications dated 4.5.2001 and 15.6. 2002 would have relevance to the discussions that will follow, the contents of t he said letters/ communications may be noticed hereinbelow :- (cid:28)GOVERNMENT OF ASSAM EDUCATION (SECONDARY) DEPARTMENT Memo No. B(3)S-244/99/42 Dated Dispur, the 4th May/2001 From : Shri S. Brahma, Deputy Secretary to the Govt. of Assam, Education, Department. To : The Director of Secondary Education, Assam, Kahilipara, Guwahati-19. Sub : Seniority in service- regarding. Sir, I am directed to refer to Govt. letter No. LP-890/87/29, dated 3-8-1990 (copy enclosed) and your endorsement dated 2-3-2001 vide U/O No. CB-EST/Misc/2/2 001 in this Department file No. B(3)S-244/99 and convey the approval in respect of the seniority given to the classical teachers of Hindi, Sanskrit, Persian, As samese, Bodo etc. having degree qualification in the cadre of General Teachers f rom the date of issue of Govt. letter under reference i.e. with effect of 3-8-19 90 for having benefit of promotion to the Higher posts. Yours faithfully, Sd/- Deputy Secretary to the Govt. of Assam, Education Department. (cid:29). (cid:28)GOVERNMENT OF ASSAM EDUCATION (ELEMENTARY & SECONDARY) DEPARTMENT No. B(3)S 244/99/93 Dated Dispur, the 15th June, 2002 OFFICE MEMORANDUM For the purpose of removing the stagnation in giving promotional benefit of classical teachers to the Higher post Government vide letter No. EPG 890/87/ 29 dt. 3.8.90 had decided to include the Classical Teacher of Hindi, Sanskrit, P ersian, Assamese, Bodo etc. having degree qualification to the cadre of General Teacher for promotion in the same line of General Teachers. Government has now h ereby decided to continue the earlier policy decision adopted vide letter No. EP G 890/87/29 dt. 3.8.90 and the inter-se-seniority of those Classical Teacher hav ing degree qualification with that of the General Teacher will be fixed with eff ect from 3.8.90 i.e. the date of issue of Government decision. This supersedes al the Government earlier letters/ circulars issued in t his regard. Sd/- P.C. Sharma, Principal Secretary to the Govt. of Assam, Education Department. (cid:29).

22. Shri Mishra has summed up his arguments by contending that Class ical Teachers and Graduate Teachers being at par having the same pay, qualificat ions and duties, patent discrimination will arise if the provisions of Rule 24(2 )(ii) is allowed to remain in the statute book. Consequently, Rule 24(2)(ii), ac cording to the learned counsel is constitutionally invalid having brought about a hostile discrimination against Classical Teachers without there being any reas onable basis for the classification sought to be made.

23. Shri Mishra has also brought to the notice of the Court the stat ements made on behalf of the petitioner in the reply affidavit dated 27.4.2006 ( wrongly shown to be filed in WP(C) No.7125/2003). In this regard, the learned co unsel has submitted that the aforesaid statements adequately explain the somewha t inconsistent position indicated in the writ petition filed particularly in par agraphs 4, 5 and 6. Shri Mishra has submitted that the statements made in the af oresaid para-4, 5 and 6 to the effect that Classical Teachers were not encadred by the 1982 Rules were so made on the basis of the information furnished to the petitioner and in any event in para-5 of the reply affidavit the position has be en clarified to mean that what has been urged before the Court on behalf of the Classical Teachers is that they along with Graduate Teachers were encadred (cid:28)conj ointly and compositely as Graduate Teachers (cid:29).

24. Shri N. Dutta, learned counsel for the Respondents Graduate Teac hers in WP(C) No. 7125/2003 has countered the arguments advanced on behalf of th e petitioners contending that all employees including Graduate and Classical Tea chers who became Government servants by virtue of the provincialisation Act of 1 977 were not encadred under the 1982 Rules. In this regard, Shri Dutta has been emphatic in his submissions that encadrement can only be made by Rules framed in exercise of powers under Section 3(3) of the Provincialisation Act of 1977. Shr i Dutta has argued that Classical Teachers was a heterogeneous group consisting of Graduates, persons with Degrees or Diploma equivalent to Graduation as well a s persons who are Matriculates. The 1982 Rules did not encadre any category of C lassical Teachers and it is only Graduate Teachers who were encadred in Class-II (Non-Gazetted) of the service. Such encadrement, according to Shri Dutta, took place by virtue of the 1991 Rules whereby only Graduate Classical Teachers were encadred in Grade-IV of the Service along with Graduate Teachers of Higher Secon dary and MP Schools or High Schools. Classical Teachers of other denominations w ere also encadred but in other grades of service i.e. Grade-V, VI and VII. Shri Dutta has submitted that the petitioners who are Graduate Classical Teachers and encadred in Grade-IV of the service have gained an advantage over other Classic al Teachers who may have had an earlier date of joining as Classical Teachers de spite which such Classical Teachers were encadred in a lower grade of the servic e. The petitioners having accepted the advantageous position conferred on them b y the Rules of 1991 must accept the provisions of the said Rules as a whole i.e. their encadrement thereunder. In any event, according to Shri Dutta, it is not the pleaded case of the Graduate Classical Teachers that they were encadred alon g with Graduate Teachers under the 1982 Rules. Pointing out the averments made i n para 4,5 and 6 of the writ petition i.e. WP(C) No. 7125/2003, Sri Dutta has co ntended that what is sought to be argued is in fundamental departure from what h as been pleaded and, therefore, should not be allowed.

25. Proceeding further, Sri Dutta has argued that no record has been placed before the Court by any of the contesting parties including the State Go vernment to show that the encadrement of Graduate Teachers under the 1982 Rules included Graduate Classical Teachers also. In this regard, Sri Dutta has pointed out that under the 1982 Rules, ex facie, it is the Graduate Teachers of Higher Secondarily, M.P. and High Schools who have been understood to be Graduate Teach ers and, furthermore, that under the 1991 Rules though Classical Teachers have b een brought at par with Graduate Teachers by their inclusion in Grade IV of the Service, the distinct identity of the two groups of teachers i.e. Classical Teac hers and Graduate Teachers have been maintained by the said Rules. Sri Dutta has taken the Court through the provisions of the Rule 26. s of 2003 to contend that though Classical Teachers have been included in Class- II(Junior) of the Service along with Graduate Teachers, their distinct identity has been maintained. It is also pointed out that Rule 14(4) which deals with el igibility for promotion mentions qualifying service as Graduate Teachers only. I t is only by virtue of Rule 24(2)(ii) that Classical Teachers have also been mad e eligible for promotion by including them in the cadre of Graduate Teachers. Ho wever, such inclusion is only for the purpose of benefit of promotion in the sam e line subject to the condition that such inclusion will be counted w.e.f. 3.8.9 0. In this regard, Sri Dutta has submitted that had it not been for Rule 24(2)( ii), the Classical Teachers would not have been entitled for promotion. The cadr e of Classical Teaches is distinct and different from Graduate Teachers and unde r the 2003 Rules members of two different cadres have been made eligible for pro motion in the general line by counting of service of the Members of one cadre i. e. Graduate Classical Teachers with effect from a particular date. Rule 24(2)(ii ), therefore, according to Sri Dutta, is an exercise to pick up a date and unles s there is a fundamental flaw in the exercise undertaken, interference of the Co urt will not be justified. The said Rule, really, reflect a policy decision of t he Government to make Classical Teachers eligible for promotion in the general l ine but subject to certain conditions which conditions, according to the learned counsel, are perfectly justified keeping in mind that the two sets of incumbent s have distinct and noticeable differences in terms of qualifications and duties . Sri Dutta has further submitted that Rule 24(2)(ii) of the 2003 Rules, in effe ct, gives seniority to Graduate Classical Teachers from a date which is anterio r to their encadrement. Teachers belonging to the said category cannot, therefor e, have any legitimate grievance with regard to grant of such seniority with eff ect from 3.8.90.

27. Sri Dutta has placed reliance on a judgment of the Apex Court in the State of Punjab -vs- Joginder Singh, reported in AIR 1963 SC 913 (Para 21) to contend that it is within the powers of the State to constitute two grades in a service consisting of employees doing the same work with same scales of pay b ut subject to different conditions of service. Such an action, according to Sri Dutta, would not be violative of Article 14 of the Constitution.

28. Reliance has also been placed by Sri Dutta on a judgment of the Apex Court in Anand Prakash Saksena -vs- Union of India & Ors., reported in AIR 1968 SC 754 (Para 21) to contend that like Rule 3(3)(b) of the I.A.S (Regulatio n of seniority) Rules, 1954, Rule 24(2)(ii) of the 2003 Rules attempts to strike a balance between the competing claims of Graduate Teachers and Classical Teach ers and such attempts ought not to be thwarted by the Court merely because some imbalance has been perceived to be caused by the Members of one of the groups.

29. Relying on another decision of the Apex Court in Reserve Bank of India -vs- N.C. Paliwal & Ors., reported in (1976) 4 SCC 838 (Para 15 and 16), Sri Dutta has submitted that it is within the power of the State to lay down any appropriate Rule for determination of seniority and the Court should not cause interference merely because in its opinion another Rule would have been more app ropriate. The touchstone for judging the validity of the State action is apparen t arbitrariness and irrationality in the Rules adopted by the State resulting in denial of equality of opportunity to employees belonging to the same class. In the aforesaid case, the employees coming to clerical cadre from non-clerical cad re were given some benefit for service rendered in the non-clerical cadre i.e. 1 /3rd. The Apex Court understood the adoption of the aforesaid principle to be an attempt to strike a just balance between conflicting claims of the clerical and non-clerical staff and refused to view the adoption of the said principle as ar bitrary or discriminatory. Sri Dutta has argued that in the present cases, the t wo cadres being different, reckoning of service from a particular date for Class ical Teachers, for consideration of their eligibility for promotion in the gener al line, cannot be termed to be an arbitrary decision resulting in hostile discr imination, as urged on behalf of the petitioners. Sri Dutta has also relied on the observation of the Apex Court contained in para 33 of the decision in Ramrao & Ors. -vs- All India Backward Class Bank Employees Welfare Association & Ors. , (2004) 2 SCC 76. The aforesaid observation being most apt, are quoted hereinb elow: (cid:28)33. Whenever such a cut-off date is fixed, a question may arise as to why a per son would suffer only because he comes within the wrong side of the cut-off date , but, the fact that some persons or a section of society would face hardship, b y itself cannot be a ground for holding that the cut-off date so fixed is ultra vires Article 14 of the Constitution. (cid:29).

30. A pointed query was made by the Court that assuming that Graduat e Classical Teachers were encadred for the first time in the year 1991, why the Court should not understand them to be entitled to seniority from the date of th eir initial appointment by virtue of the provisions contained in Section 13 of t he Provincialisation Act of 1977, particularly when seniority to Graduate Teache rs with effect from the date of their initial appointment had been given followi ng their encadrement under the 1982 Rules. In reply, Sri Dutta has submitted tha t Section 3(1) of the 1977 Act should be understood to have conferred the status of Government servant on all employees of the provincialised schools from the d ate of encadrement and not from the date of initial appointment. In this regard, Sri Dutta has submitted that such an interpretation should be made notwithstand ing the expressed language contained in Section 3(1) of the Act as any other vie w would lead to incongruous and undesirable results. We have considered the rival submissions advanced on behalf of t 31. he parties with the utmost care. An analysis of the provisions of the Provincial isation Act of 1977 and the Rules framed, as amended from time to time, indicate s that all existing employees of the schools covered by the Provincialisation Ac t of 1977 were conferred the status of Government servants with effect from the date of their appointments. However, encadrement of such employees in appropriat e cadres was left to be determined by the Rules. The 1982 Rules had specifically encadred only Graduate Teachers. As the Act had left the question of encadremen t to be dealt with by the Rules framed, obviously, there could have been no impl ied encadrement of Classical Teachers. The Government Letter dated 3.8.90 provid ing avenues of promotion to the Classical Teachers in the same line as general G raduate Teachers could not have been understood to have encadred Classical Teach ers as such encadrement had to be made by the Rules framed. If Classical Teacher s were not encadred under the 1982 Rules promotional avenues to higher echleous in service could not have been provided to Classical Teachers, inasmuch as, it i s only upon encadrement that an existing employee could be legitimately understo od to be a member of the Service. The aforesaid anomaly was sought to be correct ed by the 1991 Rules which specifically encadred Graduate Classical Teachers in Grade IV of the Service along with Graduate Teachers in the general line. The sa id Rules of 1991 besides providing the same scale of pay to both categories of t eachers also provided the same avenues of promotion for persons encadred in Grad e IV. That apart, seniority as per Rule 13, which continued to remain in the sta tute book, was required to be fixed on the basis of the date of initial appointm ent. Accordingly, promotions were conferred to many Graduate Classical Teachers by counting their seniority in accordance with Rule 13 and without reference to the date 3.8.90. However, by the subsequent Government Letters dated 4.5.2001 an d 15.6.2002, the position was sought to be reversed and the seniority of Graduat e Classical Teachers were again sought to be fixed with reference to the Governm ent Letter dated 3.8.90. The aforesaid Government Letters were challenged as bei ng contrary to the provisions of the 1991 Rules in WP(C) Nos. 462 and 5026 both of the year 2002. While the said writ petitions were pending, the 2003 Rules wer e brought into effect on and from 12.8.2003. Under the 2003 Rules once again Gra duate Classical Teachers were encadred along with general Graduate Teachers in C lass II (Junior) of the Service. Though so encadred, promotional avenues to high er posts was afforded only to general Graduate Teachers and not Classical Teache rs. This is evident from Rule 14(4) of the 2003 Rules. Seniority of general Gra duate Teachers under Rule 24(2)(i) was to be from the date of joining. However, Rule 24(2)(ii) though provided that Graduate Classical Teachers may be included in the cadre of general Graduate Teachers for the benefit of promotion, such inc lusion is to be counted from the date of the Government Letter dated 3.8.90 and seniority of Classical Teachers is to be counted from the same date i.e. 3.8.90. The 2003 Rules, therefore, made Classical Teachers eligible for promotion in th e same line as general Graduate Teachers by a deeming provision effective from t he date of the Government Letter dated 3.8.90.

32. The analysis of the law relevant to the present adjudication bei ng over, the Court must now proceed to examine the rival contentions of the part ies. The issue raised on behalf of the appellants that Graduate Classical Teach ers were included in the cadre of general Graduate Teachers since the very incep tion is capable of being answered by the provisions of the Provincialisation Ac t of 1977 under which encadrement is required to be made by specific Rules frame d in this regard. Obviously, the mandate of the statute will have to be followed . There can be no other manner of encadrement than what has been prescribed unde r the Act. The concept of implied encadrement sought to be built-up on behalf of the appellants, therefore, cannot be accepted by the Court. Under the 1982 Rule s, it is only the general Graduate Teachers who had been encadred.

33. We have noticed from our understanding of the provisions of the Rules framed from time to time as delineated above that Graduate Classical Teach ers were encadred for the first time by the 1991 Rules in Grade IV of the Servic e and further that in the said Grade general Graduate Teachers were also include d. The two cadres, therefore, though may have been distinct and separate to begi n with became equivalent subsequently. This is further made clear by the provisi ons contained in Rule 9 of the 1991 Rules providing promotion to Grade II and II I of the Service from serving members of Grade IV of the Service subject to thei r having the requisite period of qualifying service. Graduate Classical Teachers , therefore, became eligible for promotion to higher Grades in the Service in th e same manner as general Graduate Teachers. In so far as the period of qualifyin g service stipulated by Rule 9 is concerned, under Rule 13 of the 1982 Rules, wh ich remained unaltered by the 1991 Rules, the seniority of a member of the Servi ce is primarily required to be determined on the basis of the date of continuous appointment/ date of joining and if the said dates are same, by reference to da te of birth. By virtue of the provisions of the 1982 Rules, general Graduate Tea chers were given seniority with effect from the date of their initial appointmen t. Once Graduate Classical Teachers were encadred in the Service by the 1991 Rul es, no different treatment could have been given to such teachers because the af oresaid Rule 13 continued to hold the field. Graduate Classical Teachers, theref ore, also became entitled to seniority from the date of their initial appointmen t. Such entitlement was actually implemented in some cases as evident from the s pecific details furnished by the petitioners in their pleadings in WP(C) No. 712 5/2003. The Government Letters dated 4.5.2001 and 15.6.2002 attempted to strike a discordant note in this regard. The said orders were, therefore, challenged be fore this Court. However, before an answer could be provided to the issue raised by the Graduate Classical Teachers in the writ petitions filed challenging the said orders i.e. WP(C) Nos. 462 and 5026 of 2002, the 2003 Rules came into force essentially granting legislative recognition to the principles contained in the aforesaid two Government Orders.

34. Under the 1991 Rules Graduate Classical Teachers were encadred a nd included in Grade IV along with general Graduate Teachers. By the said Rules Graduate Classical Teachers became entitled to promotion in the same line as gen eral Graduate Teachers and further Graduate Classical Teachers were entitled to have the benefit of service from the date of initial appointment for computation of seniority. The Court will have to understand that though the two cadres were made to keep their independent identities, yet, Graduate Classical Teachers wer e brought at par with general Graduate Teachers by the 1991 Rules in so far as s tatus/ rank (both groups became members of Grade IV of the Service); pay and pro motional avenues and benefit of service prior to provincialisation is concerned. In contradiction to the above what the 2003 Rules had attempted to do is clear and obvious. Though encadred along with general Graduate Teachers as members of Class II(Junior) of the Service, Graduate Classical Teachers have been excluded from the promotional avenues provided by Rule 14(4). It is only the general Grad uate Teachers who have been made eligible for promotion and by the deeming provi sion contained in Rule 24(2)(ii) of the 2003 Rules Graduate Classical Teachers h ave been included in the cadre of general Graduate Teachers for the purpose of promotion in the same line but only with effect from 3.8.90. Their seniority is also to be counted from the same date. In effect, what the 2003 Rules purports t o do is to wipe out the pre-existing and accrued rights of the Graduate Classica l Teachers conferred by the predecessor Rules. The question that confronts the C ourt is whether what has been contemplated by the 2003 Rules is tenable in law. There can be no manner of doubt that the power to frame Rules to regulat 35. e the conditions of service carries with it the power to amend or alter the Rule s framed even with retrospective effect. However, the above principle is subject to one exception. Existing or conferred rights, which have accrued, cannot be t aken away in violation of the fundamental rights of the concerned incumbents. In other words, any alteration or change in the service conditions of a set of emp loyees must conform to the provisions of Part-III of the Constitution, particula rly Articles 14 and 16. If graduate classical teachers were at par with general graduate teachers by virtue of the provisions of the 1991 Rules as the analysis of the statutory Rules made above would indicate, the successor Rules i.e. 2003 Rules could not have altered the aforesaid position by placing the graduate clas sical teachers at a disadvantageous position compared to the general graduate te achers. Any such attempt will have to be construed to be violative of the rights of the graduate classical teachers under Articles 14 and 16 of the Constitution , inasmuch as, though equal with the general graduate teachers under the 1991 Ru les they have been sought to be treated differently by the 2003 Rules. The above conclusion has been reached by the Court on a careful consider 36. ation of the judgment of the Apex Court in the State of Gujrat and another vs. R aman Lal Keshav Lal Soni and others, reported in (1983) 2 SCC 33. The aforesaid judgment of the Apex Court will, naturally, require a close look to understand w hether the reliance placed upon it in coming to the conclusion has been so place d correctly.

37. ced. The facts in Raman Lal Keshav Lal Soni (supra) may first be noti To achieve democratic decentralization of important governmental functions the Gujrat Panchayats Act, 1961 was enacted. A Gram or Nagar Panchaya t depending on the population of the local area for each Gram or Nagar; a Taluka Panchayat for each Taluka and a District Panchayat for each district was consti tuted. With the coming into force of the aforesaid enactment, District Local Boa rds under the Bombay Local Boards Act, 1923, stood transformed as District Panch ayats; Village Panchayats under the Bombay Village Panchayats Act, 1958, stood t ransformed as Gram Panchayats and Municipalities under the Bombay District Munic ipal Act, 1901 and Bombay Municipal Boroughs Act, 1925 were transformed as Gram and Nagar Panchayats depending on the population. The officers and servants in t he employment of the District Local Boards and the erstwhile Village Panchayats and Municipalities were transferred to the service of the District Panchayats, n ew Gram Panchayats or Nagar Panchayats and stood allocated to the Panchayat serv ice. A single centralized Panchayat Service was constituted to work at three lev els i.e. District, Taluka and Local. Benefits relating to equation of posts, pro motions, fixation of pay scales and revision thereof (as per recommendations of the Pay Commission) under the Gujrat Panchayat Service (Absorption, Seniority, P ay and Allowances) Rules, 1965 were extended to the District and Taluka cadres a s well as to the members of the local cadre drawn from the ranks of Secretaries, Officers and servants of the old Village Panchayats but not to the ex Municipal staff who transferred to the local cadre. The aforesaid difference in treatmen t to the ex Municipal employees in the local cadre were sought to be justified b y the State on the ground that while all other categories of employees whose ser vices stood transferred were initially Government servants, the ex Municipal emp loyees were not. The aggrieved ex Municipal employees challenged the aforesaid a ction before the Bombay High Court which answered the question in their favour b y holding that the ex Municipal employees were encadred in the local cadre of t he Panchayat service which is a service under the State. Consequently, appropria te directions were issued by the Bombay High Court which came to be challenged b efore the Apex Court. During the pendency of the aforesaid challenge before the Apex Court, the Gujrat Panchayats Act, 1961, was amended by the Gujrat Panchayat s (3rd Amendment) Act, 1978. By the amending Act the ex Municipal employees who were working as Secretaries, officers and servants of Gram and Nagar Panchayats were deprived of their status as members of the Panchayat Service under the Stat e and hence they ceased to be Government servants. Instead, they became servants of the Gram and Nagar Panchayats and their conditions of service were to be as prescribed by the Panchayats. The amending Act, therefore, treated the ex Munici pal employees of the local cadre differently from those working in the Taluka an d District cadre as well as differently from employees working in the local cadr e who were drawn from the old Village Panchayats. The amendment was also sought to be given retrospective effect. The justification for the aforesaid amendment, once again, appeared to be that while ex Municipal employees prior to their ind uction in the Panchayat service were not Government servants all other categorie s employees had been Government servants before becoming members of the Panchaya t service. The Apex Court after a long and elaborate consideration of the m 38. atter not only dismissed the appeal filed by the State of Gujrat against the ord er of the Bombay High Court, as noticed above, but also held the amending Act to be unconstitutional on the touch stone of Article 14. Briefly put, the Apex Cou rt took the view that as the ex Municipal employees were a part and parcel of th e Panchayat service and, hence, Government servants under the 1961 Act, the said position could not have been altered or reversed and the attempt to do so by th e Amendment Act of 1978 offends Article 14 of the Constitution. The Apex Court s pecifically held that today’s equal cannot be made unequal and that the attempt to show that they were unequal earlier by giving retrospective effect to the am endment cannot save the situation. In the above context the Apex Court specific ally held that the retrospective effect sought to be given by the amendment was designed to frustrate any possible claim on the part of the ex-Municipal employe es that they were singled out for differential treatment. If by giving retrospec tive effect to the aforesaid amendment the ex-Municipal employees could be treat ed to have ceased to be Government servants and to have never been in the Pancha yat service, naturally, such employees could not claim that their earlier status as Govt. servants have been altered to their prejudice resulting in hostile dis crimination.

39. The illuminating views of the Apex Court in Raman Lal Keshav Lal Soni & Ors. (supra) as contained in paragraphs 50, 51 and 52 seems to amply ans wer the issues that have arisen in the present cases. The aforesaid paragraphs t herefore are being extracted below : (cid:28)50. It is here necessary to recapitulate a few facts. When the panchayat servic e was initially constituted soon after the passing of the Gujarat Panchayats Act , there were three cadres, the district cadre, the taluqa cadre and the local ca dre. Secretaries, Officers and servants of the old Village Panchayats under the Bombay Village Panchayats Act, 1958 became Secretaries, Officers and servants of the new Gram Panchayats under Section 325(2)(x) of the Gujarat Panchayats Act, 1961. Talatis and Kotwals, who were government servants were Secretaries and Off icers of the old Village Panchayats under the Bombay Village Panchayats Act and so they became Secretaries and Officers of the new Gram Panchayats under the Guj arat Panchayats Act, 1961. Some municipalities constituted for municipal distric ts and municipal boroughs under the Bombay District Municipal Act and the Bombay Municipal Boroughs Act as applied to areas in the State of Gujarat, were conver ted into Gram and Nagar Panchayats under Section 307 of the Gujarat Panchayats A ct and all Officers and servants in the employ of such municipalities became off icers and servants of interim panchayats and allocated to the panchayat service. Thus, Secretaries and Officers of dissolved municipalities also became Secretar ies and Officers of Gram and Nagar Panchayats. District Local Boards constituted under the Bombay Local Boards Act stood dissolved on the passing of the Gujarat Panchayats Act and all Officers and servants in the employment of the Board wer e deemed to be transferred to the service of the successor District Panchayat un der Section 326 of the Gujarat Panchayats Act. Also allocated to the panchayat s ervice were those government servants who were transferred to the panchayats und er Section 157 and such other officers and servants employed in the State servic e as were necessary [Section 206(iii)]. All these Secretaries, Officers and serv ants became members of a service under the State as soon as they were allocated the Panchayat service. Now, by the Amending Act, Secretaries, Officers and serva nts of Gram and Nagar Panchayats who were allocated to the panchayat service fro m the ranks of the ex-municipal employees are sought to be meted out differentia l treatment from the other members of the panchayat service, more particularly t he Secretaries, Officers and servants of Gram and Nagar Panchayats who were draw n from the ranks of Secretaries, Officers and servants of old Village Panchayats , that is the Talatis and Kotwals. Their status as members of a service under th e State is to go with no option to them. Retrospectivity is sought to be given t o the Amending Act so that they could not claim that they were ever government s ervants and so could not be made to cease to be government servants and so that they could not claim that they were singled out for differential treatment, for, if they were never in the panchayat service, they could not complain of being t aken out of the panchayat service.

51. Now, in 1978 before the Amending Act was passed, thanks to the provisions of the principal Act of 1961, the ex-municipal employees who had been allocated to the panchayat service as Secretaries, Officers and servants of Gram and Nagar P anchayats, had achieved the status of government servants. Their status as gover nment servants could not be extinguished, so long as the posts were not abolishe d and their services were not terminated in accordance with the provisions of Ar ticle 311 of the Constitution. Nor was it permissible to single them out for dif ferential treatment. That would offend Article 14 of the Constitution. An attemp t was made to justify the purported differentiation on the basis of history and ancestry, as it were. It was said that Talatis and Kotwals who became Secretarie s, Officers and servants of Gram and Nagar Panchayats were government servants, even to start with, while municipal employees who became such Secretaries, Offic ers and servants of Gram and Nagar Panchayats were not. Each carried the mark or the (cid:28)brand (cid:29) of his origin and a classification on the basis of the source from which they came into the service, it was claimed, was permissible. We are clear that it is not. Once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the ba sis of their origin. Such a classification would be unreasonable and entirely ir relevant to the object sought to be achieved. It is to navigate around these two obstacles of Article 311 and Article 14 that the Amending Act is sought to be m ade retrospective, to bring about an artificial situation as if the erstwhile mu nicipal employees never became members of a service under the State. Can a law b e made to destroy today’s accrued constitutional rights by artificially revertin g to a situation which existed 17 years ago? No.

52. The legislation is pure and simple, self-deceptive, if we may use such an ex pression with reference to a legislature-made law. The legislature is undoubtedl y competent to legislate with retrospective effect to take away or impair any ve sted right acquired under existing laws but since the laws are made under a writ ten Constitution, and have to conform to the dos and don’ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fund amental rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, 20 years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with today’s rights and not yesterday’s. A legislature cannot legi slate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 2 0 years. That would be most arbitrary, unreasonable and a negation of history. I t was pointed out by a Constitution Bench of this Court in B.S. Yadav v. State o f Haryana, AIR 1981 SC 561 Chandrachud, C.J. speaking for the Court held: (SCC h eadnote) (cid:28)Since the Governor exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to t he rules made under that provision. But the date from which the rules are made t o operate must be shown to bear either from the face of the rules or by extrinsi c evidence, reasonable nexus with the provisions contained in the rules, especia lly when the retrospective effect extends over a long period as in this case. (cid:29) Today’s equals cannot be made unequal by saying that they were unequal 20 years ago and we will restore that position by making a law today and making it retros pective. Constitutional rights, constitutional obligations and constitutional co nsequences cannot be tampered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the exi sting situation cannot become valid by being made retrospective. Past virtue (co nstitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panc hayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Articles 3 11 and 14 and is arbitrary and unreasonable. We have considered the question whe ther any provision of the Gujarat Panchayats (Third Amendment) Act, 1978 might b e salvaged. We are afraid that the provisions are so intertwined with one anothe r that it is well nigh impossible to consider any life-saving surgery. The whole of the Third Amendment Act must go. In the result Writ Petitions Nos. 4266-4270 of 1978 are allowed with costs quantified at Rs 15,000. The directions given by the High Court, which we have confirmed, should be complied with before June 30 , 1983. In the meanwhile, the employees of the panchayats covered by the appeal and the writ petitions will receive a sum of Rs 200 per month over and above the emoluments they were receiving before February 1, 1978. This Order will be effe ctive from February 1, 1983. The interim Order made on February 20, 1978 will be effective up to January 31, 1983. The amounts paid are to be adjusted later. (cid:29).

40. A question may arise with regard to the qualification and nature of duties performed by the Graduate Classical Teachers and general Graduate Tea chers. Are they same and similar ? After all in para 51 of the judgment in State of Gujarat -vs- Raman Lal Keshav Lal Soni & Ors. (supra) the similarity of duti es performed by the Ex-Municipal Staff of the local cadre and other members of t he service holding the same posts was specifically referred to by the Apex Court . Peculiarly not much debate had been generated in the present cas 41. es on the said issue. Nonetheless the issue has to be examined. When under the 1 991 Rules Graduate Classical Teachers and general Graduate Teachers were made eq uivalent or brought at par for promotion to higher posts by adoption of the same criteria of seniority i.e. length of service, the Court will have to understand the perception of the Rule making authority to be one pointing towards equivale nce of duties also or at any rate that the differences, if any, are not material for the purpose of promotion to higher grades in the service. Such a view will also appear to be justified in the absence of any positive stand on the part of the State with regard to any difference in qualifications or in the nature of du ties performed by the teachers belonging to the two categories. At any rate, Cla ssical Teachers are also graduates though in or with any of the particular subje cts already noticed. The difference, therefore, is too insignificant to indicate any demonstrable difference in the nature of duties performed by the two catego ries of teachers.

42. It will be worthwhile to notice that the views expressed by the Apex Court in Raman Lal Keshav Lal Soni & Ors. (supra) has been consistently fol lowed either by an express reference as in T.R. Kapur and another vs. State of H aryana and others [1986 (supp) SCC 584]; in Ex-Capt. K. C. Arora and another vs . State of Haryana and others [(1984) 3 SCC 281] or without such reference as in P. U. Joshi and others vs. Accountant General, Ahmedabad and others [(2003) 2 S CC 632]. Paragraph 10 of the judgment in P. U. Joshi and others (supra) being re levant to the instant matter, the said paragraph may be usefully reproduced here in below : (cid:28)10. We have carefully considered the submissions made on behalf of both parties . Questions relating to the constitution, pattern, nomenclature of posts, cadres , categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfil led for such promotions pertain to the field of policy is within the exclusive d iscretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the sta tutory tribunals, at any rate, to direct the Government to have a particular met hod of recruitment or eligibility criteria or avenues of promotion or impose its elf by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligib ility criteria and other conditions of service including avenues of promotion, f rom time to time, as the administrative exigencies may need or necessitate. Like wise, the State by appropriate rules is entitled to amalgamate departments or bi furcate departments into more and constitute different categories of posts or ca dres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and c reating new cadres/posts. There is no right in any employee of the State to clai m that rules governing conditions of his service should be forever the same as t he one when he entered service for all purposes and except for ensuring or safeg uarding rights or benefits already earned, acquired or accrued at a particular p oint of time, a government servant has no right to challenge the authority of th e State to amend, alter and bring into force new rules relating to even an exist ing service. (cid:29) (Emphasis is ours) The decisions cited by Sri N. Dutta, learned Senior Counsel appe

43. aring on behalf of the general graduate teachers, may now be noticed. In State of Punjab vs. Joginder Singh (supra) the question before the Apex Court was whether the Government order dated 27.9.57 by which schools run by the Muni cipal Boards and District Boards were taken over by the Education Department wit h effect from 1.10.57 had integrated the provincialised teachers (expression use d to refer to the teachers of the schools taken over by the executive order) wit h the teachers in employment under the State. The aforesaid question arose in th e context of the promulgation of the Punjab Educational Service (Provincialised Cadre) Class-III Rules with retrospective effect from 1.10.57 under which a memb er of the State cadre had better chances of promotion than a teacher belonging t o the provincialised cadre. The majority decision of the Apex Court was to the e ffect that the two cadres were all along distinct and independent and merely bec ause same scales of pay and grades were given to the both sets of teachers it ca nnot be said that there was an integration of the two cadres. The Apex Court, in the aforesaid facts, took the further view that as the two cadres had started d issimilarly and had continued dissimilarly any further dissimilarity in their tr eatment will not amount to denial of equal opportunity. We find it difficult to appreciate how the aforesaid decision can have any application in the present ca ses where graduate classical teachers and general graduate teachers though may h ave constituted two separate cadres, both the aforesaid two cadres were included in Grade-IV of the services by the 1991 Rules which Rules also provided the sam e promotional avenues to higher grades to both categories on the basis of the sa me principle for determination of seniority i.e. length of service.

44. The decision of the Apex Court in Anand Prasad Saxena (supra) re lied upon deals with the provisions of Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954. The Apex Court found the aforesa id provision of the Rules not to be arbitrary or discriminatory as the Rule seek s to strike a balance between conflicting claims of the promotee Officers and th ose recruited directly. We do not see how the aforesaid judgment of the Apex Cou rt can help us to resolve the present controversy when under the 1991 Rules both graduate classical teachers like the general graduate teachers became entitled to have their seniority determined in accordance with Rule 13 of the 1982 Rules i.e. from the date of initial appointment or date of joining.

45. Similarly, the decision in Reserve Bank of India vs. N.C. Paliwa l (supra), reliance on which has been placed by Sri N. Dutta, learned Senior Cou nsel, deals with the benefit of service in non-clerical cadre upon incumbents be ing admitted to the clerical cadre. Once again, the Apex Court took the view tha t what was provided by the Rules is an attempt to strike a balance between compe ting claims. The facts in which the aforesaid judgment was rendered and the cont ext in which the observations contained in paragraph 16, relied upon, were made make it abundantly clear that the aforesaid judgment cannot have any application to the issues arising in the present cases. Moreover, it must be noticed that i n paragraph 17 of the aforesaid judgment the Apex Court had recorded the fact th at (cid:28)no question of any existing seniority being disturbed by change in the Rule of seniority (cid:29) had arisen in the case. The last judgment relied upon by Sri N. Dutta, learned Senior Co 46. unsel i.e. Rama Rao and others vs. All India Backward Classes Bank Employees Wel fare Association and others [(2004) 2 SCC 76] deals with the validity of a cut o ff date for determination of eligibility for promotion in the Marathwada Gramin Bank pursuant to the directions of the National Industrial Tribunal. In the abov e context the Apex Court in paragraph 33 of the judgment had observed that merel y because a person happens to fall on the wrong side of the cut off date may not be a good ground for holding such cut off date to be arbitrary. Though Sri Dutt a has sought to contend that the date 03.8.1990 stipulated by Rule 24(2)(ii) for counting of seniority of Graduate Classical Teachers for promotion is really a cut off date and the dispute hovers around the adoption of a cut off date we can not persuade ourselves to agree with Sri Dutta. The question in the present case is not with regard to the adoption of a cut off date but whether any such date could have been fixed for purposes of determination of seniority of Graduate Cla ssical Teachers when under the 1991 Rules they were entitled to have their senio rity determined from the date of their initial appointment. The necessary c