MADHUSUDANAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners in both the writ petitions challenge the constitutionality of G. O. (MS) 259 dated March 11, 1958 , which has fixed their places in the seniority list. THE relevant facts, giving rise to the complaint, may be shortly stated.

(2.) THE petitioner as well as the respondents, other than the State, in each writ petition, were members of the Travancore-Cochin State forces, prior to the inauguration of the Constitution. When the integration of the State Forces with the Indian Army took place, they were rejected by the indian Army Selection Board, on the ground of not being suitable. THE policy of the then Government was to provide such persons, as far as practicable, with alternative employments in the State services; and both the writ petitioners as well as the respondents were employed, some in what was called the Palace guards, and some in the Police Force. THEy were, therefore separated into two groups; six Officers being absorbed in the Palace Guards, and four in the police Force. THE names of those taken in the former are: This group contains one Major, three Captains and two lieutenants; and four of the aforesaid officers, i. e. the Major and the three captains, were allowed the ranks and the scale of pay they had enjoyed before, whereas the other two were given posts carrying lower scales of pay. THE four officers, who went to the Armed Police, also got lower scales of pay, and their names are as follows: At this stage, it may be mentioned that the position of the writ petitioner in O. P. No. 267/58 is No. 4, and that of the petitioner in o. P. No. 345/58 No. 5, in the list of those, who had been transferred to the palace Guards. THE seniorities of the petitioners with those of the Officers allotted to the Palace Guards, was by G. P. H7 26524/51/cs dated October 25,1952 fixed on the basis of the ranks given, to them at the time of their selection; and it was further made clear that the rank or pay in that unit, would not entitle them for promotion in the General Police or Armed Reserve. Some time later, the Government again considered the seniorities of these Officers, and fixed the order through S. 9. 2071/53/ CS of July 8, 195 4. THEreby the writ petitioner in O. P. 267/58 was given the second place, whereas the petitioner in O. P. 345/58 continued in the fifth position he held earlier after the aforesaid list was published, representations are alleged to have been received by the then Government; and another list of seniority was published in 1955. THE positions of the four out of the six Officers of the palace Guards thereafter became as follows: 1 Viswanatha Pillai 2 Mathews 3 Menon 4 Madhusoodhanan Nair It is common ground that both the petitioners were thereby assigned ranks below those, who were their juniors in the entrance into the Army; but they took no steps to challenge what were then given to them. THEreafter, the situation was that the Officers of the two groups continued to serve with their seniorities so separately grouped, till another order was passed. This is G. O. No. (MS) 259 dated March 11, 195 8 , and is challenged by both the writ petitioners. It is marked as Ext. P6 in O. P 267/58, and A. in O. P. 345/58. THE Officers of the Palace guards were thereby integrated with those of the Armed Reserve, and their respective positions were fixed as follows: THE Government has assigned the aforesaid positions in pursuance of Para. 2 of the G. O. , which paragraph reads as follows-: "the Government have considered this question further in the light of the representations received with reference to the above order. After considering all aspects of the question, the Government are pleaded to direct that the relative seniority of the Ex-Army Officers of the palace Guards and their counter-parts in the Armed Reserve Unit of the Police force shall be fixed with reference to the date of their commission, subject, however, to the inter se seniority of the Palace Guards Officers already fixed by the selection Committee. THE date of entry of all these Officers in the Police department will be treated as 1-4-1952. " THE complaint made in the writ petitions is that the positions given in the list to the petitioners, are not in compliance with the rule of fixing seniority with reference to the date of the commission, stated in Para. 2 of the G. 0. For properly appreciating the complaint, we would first state the positions the respondents to each petition been given in the List. Out of the six respondents to O. P. 267/58, the second, third, fourth, fifth and sixth are nos. 3, 4, 5, 6 & 7 of the list, and the petitioner has been assigned the eighth place in the list. Coming to the next petition, out of its eight respondents, the seventh is the petitioner in O. P. 267/58, and leaving him, the second, third, fourth, fifth, sixth and eighth respondents are Nos. 3, 4, 5, 6, 7 & 10 of the list. THE petitioner of this writ petition has been given the ninth place. We would now give in a chart form the dates these officers got their commissions in the Army and the positions they were assigned when selected in 1951: Table:#4

(3.) BEFORE deciding the objections, we would first adjudicate on the argument of the learned Government Pleader that the fundamental rights in Part III of the Constitution do not extend to those employed by the State and dismissal of the public servants, as Art. 309 & 310 especially declare such tenures to be at the pleasure of the President and the Governor. He has urged that, assuming the positions in the list challenged by the writ petitioners to be discriminatory, that would not be justiciable, nor attract exercise of powers under Art. 226. In support of his argument, he has relied on Raj Kishore v. State of Uttar Pradesh, air. 1954 All. 343, wherein Agarwala, J. , has observed thus: "article 310 is a constitutional provision and is not included within the term 'law' or 'laws' as mentioned in Art. 14. The entire constitution must be read as one whole and every part of it must be given full effect. If Art. 310 were to be limited or controlled by Art. 14, it can hardly be said that the Government can terminate the services of its servants 'at pleasure'. In my opinion, R. 465 is not rendered void by reason of Art. 14. " The Government Pleader has further relied on S. Framji v. Union of India, AIR. 1960 Born. 14 where the learned Chief Justice has explained what the civil servant's holding the post at the pleasure of the president, means. He has also relied on Balbir Singh v. State, AIR. 1955 Nag. 289 where Raj Kishore's case, AIR. 1954 All. 343 has been referred and where the learned judges have observed that Art. 16 should be limited to the initial stages of the employment, and not the terminal end of the service, so that the subsequent retention of the public servant would be at the pleasure of the governor. The learned judges have further held that the selection and gradation of persons for purposes of retrenchment or discharge, cannot amount to discrimination's provided by Art. 16. We feel doubtful about the correctness of the public servant's being excluded from enjoyment of the fundamental rights while serving as public servant, on the ground of his tenure being at the pleasure of the State. It is clear that the words "at the pleasure" do not exclude Art. 16; and if the employment by the State at its initial stages be controlled by Art. 16, we do not see how its operation at later stages can be excluded. The petitioner's learned Advocate has relied in support of his argument on P. K. More v. Union of India, AIR. 1959 Bom. 134 wherein the learned judges have differed from other cases, and have agreed with the observation of ahmad, J. , in Sukhanandan v. State of Bihar, AIR. 1957 Pat. 617. We express respectful agreement with the learned judges when they observed as follows: "this concept of equality, in matters of employment, is no more than a corollary of the fundamental right to equal justice in all matters. Its positive aspect demands equable treatment in equal circumstances. Its negative aspect forbids any impediment or unfair burden being laid upon one than upon others in the same engagement and condition and also forbids any special privilege being conferred in favour of any individual. This equality forbids any class legislation or governmental action based on similar considerations, but does not forbid classification or distinction, which is reasonable, and not an arbitrary selection. What is enjoined is that all citizens in matters of service under the State, shall be treated alike under like circumstances and conditions both in the privileges conferred and the liabilities and obligations imposed. The primary aim is to prevent any person or class of persons from being singled out as a special subject for purposeful or invidious discrimination or hostile treatment. What is insisted upon is not hypothetical equality or equality in matters of minor importance or matters of detail or routine. The purpose is to ensure similarity and equable treatment, and not identity of treatment in matters relating to initial engagement, during continuance of that engagement and at the terminal end of that engagement. The guarantee of equality embraces all matters of employment - the Article in terms, clear and ample, speaks of all "matters relating to employment" - and it is impossible to accede to the suggestion that what is contemplated by Art. 16 is only the initial stage when the citizen is employed to serve the State. Nothing so unfair and startling could have been within the contemplation of the framers of the Constitution. The guarantee in our judgment, was intended to endure, and not to be illusory". That view is further strengthened by the observation in a. I. S. Ms. & Asst. Ms. Association G. M. Central Railway, AIR. 1960 SC. 384, where Das Gupta, J. , has observed as follows: "such equality of opportunity in matters of promotion, must mean equality as between members of the same class of employees, and not equality between members of separate, independent classes".