Hidayatullah, J. - (1.) This judgment will also dispose of Civil Appeal No. 260 of 1964. These appeals arise from a judgment, dated October 27, 1961 of the High Court of Bombay in a petition under Art. 226 of the Constitution, filed by three First Grade clerks attached to the offices of the Collectors of Wardha, Bhandra and Chanda districts. They are the three respondents in this appeal. The petition in the High Court was originally filed by two of these respondents as Secretary and Member of the Ministerial Services Associations, Wardha and Bhandara, respectively, but they were treated as petitions on their personal behalf. The petitioners asked for a writ of mandamus against the Government of Bombay for the equation of their posts with Aval Karkuns in the State of Bombay (later the State of Maharashtra) under Ss. 115 and 116 of the States Reorganisation Act, 1956 (Act 37 of 1956) read with the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules 1957. As a first step the petitioners asked that Government Resolution No. SR/INT/1057/VI, dated October 21, 1957, together with Item No. 8 and Note 5 of the Statement accompanying that resolution, should be quashed by a writ of certiorari or by some other writ or order. By that Resolution the posts of First Grade clerks in the Deputy Commissioner's offices were ordered to continue on the existing scale of pay of Rupees 80-5-130. As a second step the petitioners asked that Government be ordered by a writ of mandamus to equate their posts with the posts of Aval Karkuns. Alternatively, the petitioners asked that the Government Resolution No. SR/INT/2159/21365/F, dated October 12, 1960 should be quashed inasmuch as it fixed new scale of pay (Rupees 100-8-140) for the posts held by the petitioners from May 1, 1960 and for a mandamus commanding Government to fix the scale from November 1, 1956 on which date the State reorganisation under the above Act took effect. The High Court rejected the contention of the petitioners as to equivalence but accepted their contention that the new scales of pay ought to commence on November 1, 1956 and not May 1, 1960 as ordered by Government. Appropriate writs to effectuate the later part of the order of the High Court issued. The High Court, however, certified the case under Art. 132 (1) and curiously enough under all the three clauses of Art. 133 of the Constitution and the two rival appeals have, therefore, been filed by the three petitioners and the State Government questioning the judgment of the High Court in so far as it goes respectively against them.
(2.) After the reorganisation of the States in 1956 it was necessary to divide and integrate the Services in the various States affected by the reorganisation. Part X of the Act, particularly Ss. 115 and 116 dealt with the manner in which the division and the integration of services was to be made. It is not necessary to refer to these sections in detail. They provided for the establishment of Advisory Committees, making of the rules and all other matters by which the Services in the different States could be separated or integrated, as the case may be. By virtue of the powers conferred by S. 115 of the Act read with Art. 309 of the Constitution, the Allocated Government Servants (Absorption, etc.) Rules were made by the Government of Bombay. The present dispute is governed by Rr. 10 and 12 of the Rules and we shall proceed to consider them.
(3.) For the proper understanding of the scheme of the Rules in relation to pay scales obtaining in the different States and how they were affected or modified as a result of the integration, certain terms and their definitions have to be borne in mind. Rule 2 of these Rules gives definition of " Allocated Government servants" and " Equivalent post". By "allocated Government servant" is meant a person allotted for service in the new State of Bombay under the provisions of S. 115 of the Act including servants of the former Bombay State who continue in the service of the new State of Bombay. "Equivalent post" means (a) a post in the former State of Bombay, or (b) any other post which is declared as equivalent to a post, whether permanent or temporary, sanctioned by the Government of any former State which integrated into the new State of Bombay. Equivalence is established between the posts in the principal successor State, that is to say, the new State of Bombay, and those in the existing States, territories of which were integrated with the former State of Bombay. Rules 10 and 12 read as follows:- "10. The pay scale applicable to an allocated Government servant on the 1st November 1956, shall, except where Government otherwise directs, be- (i) if he was a Government servant of the former State of Bombay the Bombay scale of the post which was held or may be held by him in the Bombay State on or after the 1st November, 1956, as if he had continued to be in the service of the former State of Bombay; (ii) if he was allotted from a State other than the former State of Bombay, the Bombay scale of the equivalent post: Provided that ********** ********** Provided further that where an allocated Government servant if on or after the 1st November 1956, absorbed in a post which is other than the corresponding post in the former State or the equivalent Bombay post, the pay-scale applicable shall unless the Government otherwise directs, be the Bombay scale of the post of absorption or in the case of allocated Government servant referred to in Cls. (a), (b) and (c) of the first proviso above, the pay scale applicable immediately before the 1st November 1956, to the post held by him in substantive capacity or officiating capacity or temporary capacity as the case may be, as the allocated Government servant may elect". "12. Notwithstanding anything contained in the foregoing rules the pay-scale applicable to the allocated Government servant who immediately before the 1st November 1956 held a post to which Government has not declared an equivalent post or has decided that it is not necessary to declare an equivalent post, shall be the pay-scale which would have been applicable had the allocated Government servant continued in the service of the former State or such other pay-scale as Government may by general or special orders prescribe: Provided that if under these rules the pay-scale applicable is the pay-scale prescribed by Government, the allocated Government servant shall, if he belongs to a category referred to in clauses (a), (b) and (c) of the first proviso to rule 10 above, have the option to exercise the elections referred to in the said rule 10 in the manner and within the period prescribed in rule 11". The question whether the First Grade clerks ought to be assimilated to Aval Karkuns was decided against the three original petitioners by the High Court and the question whether the revised scales of pay should begin on May 1, 1960 or on November 1, 1956 was decided against the State Government. These appeals involve these two questions but the three petitioners (who are appellants in Civil Appeal No. 260 of 1964) have raised a question of discrimination. We shall deal first with the complaint of the three petitioners. ;