DAS GUPTA, - (1.) THE following Judgment of the court was delivered by; :
(2.) THE petitioners who describe themselves as Road-side Station Masters challenge in this petition under Art. 32 of the Constitution the constitutionality of the channel of promotion for Guards to higher grade Station Masters' posts as notified in the issue of the central Railway 'Weekly Gazette No. 3 dated 23/11/1951. Under this Notification Guards have two lines of promotion open to them. One is that by promotion, C grade Guards may become B grade Guards on Rs. 100.00-185.00 and thereafter by further promotion A grade Guaids on Rs. 150.00-225.00. THE second line of promotion open to them is that by an examination described curiously enough as Slip 45 examination C grade Guards are eligible for promotion to posts of Station Masters on RS. 150.00-225.00 scale and thereafter to all the further promotions that are open to the Station Masters, viz., higher ,cales of Rs. 200.00 to Rs. 300.00, Rs. 260.00 to Rs. 350.00, Rs. 300.00 to Rs. 400.00 and finally Rs. 360.00 to Rs. 500.00; B grade Guards and A grade Guards are also on passing Slip 45 examination eligible for promotion to posts of Station Masters on Rs. 200.00-300.00 pay scale and thereafter to further promotions to the higher scales in the Station Masters' line. THE Road side Station Masters on pay scale of Rs. 80.00 to Rs. 170.00 (the scale was formerly Rs. 64.00-170.00) can also reach by promotion the grade of Rs. 150.00-225.00 but only after going through an intermediate stage of Rs. 100.00-185.00. Similarly Station Masters on Rs. 100.00-185.00 scale may also reach the stage of Rs. 200.00-300.00 but only after passing through the intermediate stage of Rs. 150.00-225.00. Obviously the provisions enabling Guards to become Station Masters on the pay scale of Rs. 150.00-225.00 places the Station Masters of Rs. 80.00-170.00 scale at a disadvantage as against Guards on that pay scale and also puts the Road-side Station Masters on the pay of Rs. 100.00-185.00 pay scale at a disadvantage as against Guards on that scale of pay. The petitioners contend that the channel of promotion in so far as it enables Guards to be promoted as Station Masters in addition to the other line of promotion open to them as Guards amounts to a denial of equal opportunity as between Road-side Station Masters and Guards ithe matter of promotion and thus contravenes the provisions of Art. 16(1) of the Constitution. It was further alleged in the petition that taking advantage of this channel of promotion, Guards become Station Masters on Rs. 150.00-225.00 at a very much younger age than Road-side Station Masters and thus block the chances of higher promotion to Road-side Station Masters who reach the Rs. 150.00-225.00 scale when they are much older. As instances of how the impugned provisions in the channel of promotion are harmful to the Road-side Station Masters, the petitioners state: that while the petitioner No. 2 even after completing 32 years of service has remained in the grade of Rs. 100.00-185.00 as Station Master, Guards of equal status and standing have reached gazetted rank within the same period of service; that whereas the petitioner No, 3 has come by promotion to the grade of Rs. 1,50,225.00 after putting in 21 years of service, Guards of his standing have risen to the grade of Rs. 360.00-500.00 by virtue of the impugned channel of promotion and several of his juniors who entered the Railway service long after him as Guards have superseded him and are working in the grade of Rs. 360-500; that while the petitioner No. 4 having entered into service as Telegraph Candidate and having passed all the requisite examinations prescribed for the higher grade of Station Master within a period of 2 1/2 years after putting in 6 1/2 years of service is still in the grade of Rs. 80-170, Guards of his length of service and departmental qualification are entitled for promotion as an Assistant Station Master in the grade of Rs. 150-225 within about the same length of service. The respondents-the General Manager, central Railways, Bombay, V.T., the Chairman Railway Board, New Delhi and the Union of India,-who contest the application contend that the channel of promotion providing these opportunities to Guards does not in any way contravene the provisions of Art. 16(1) of the Constitution. They also deny the correctness of the allegation that as a result of these opportunities Guards become Station Masters on Rs. 150-225 pay scale at a Younger age than Road-side Station Masters. On the material before us it is not possible to come to a firm conclusion as regards the relative age at which Guards or Road-side Station Masters ordinarily reach the pay scale of Rs. 150-225. Assuming, however, the position to be as stated in the petition, that may only evoke some sympathy for the Road-side Station Masters, but does not in any way affect the decision of the question whether Art. 16(1) of the Constitution is contravened by this channel of promotion. Art. 16(1) of the Constitution is in these words:- There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State'.`
(3.) THE impugned provisions of the channel of promotion are in respect of promotion of persons already employed under the State and not in respect of the first employment under the State. If the `equality of opportunity ` guaranteed to all citizens by Art. 16(1) does not extend to matters of promotion the petitioners' contention that the provisions are void must fail at once. If, however, matters of promotion are also ` matters relating to employment` within the meaning of Art. 16(1) of the Constitution, the next question we have to consider is whether the impugned provisions amount to denial of equality of opportunity within the meaning of that Article. We propose to consider the second question first, on the assumption that matters of promotion are Cc matters relating to employment `. So multifarious are the activities of the State that employment of men for the purpose of these activities has by the very nature of things to be in different departments of the State and inside each department, in many different classes. For each such class there are separate rules fixing the number of personnel of each class, posts to which the men in that class will be appointed, questions of seniority, pay of different posts, the manner in which promotion will be, effected from the lower grades of pay to the higher grades, e.g., whether on the result of periodical examination or 'by seniority, or by selection or on some other basis-and other cognate matters. Each such class can be reasonably considered to be a separate and in many matters independent entity with its own rules of recruitment, pay and prospects and other conditions of service which may vary considerably between one class and another. A member joins a particular class on recruitment; he leaves the class on retirement or death or dismissal, discharge, resignation or other modes of termination of service, or by joining another class of employees whether by promotion thereto or direct recruitment thereto on passing some examination or by selection in some other mode. It is clear that as between the members of the same class the question whether conditions of service are the same or not may well arise. If they are not, the question of denial of equal opportunity will require serious consideration in such cases. Does the concept of equal opportunity in matters of employment apply, however, to variations in provisions as between members of different classes of employees under the State? In our opinion, the answer must be in the negative. The concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated. Equality of opportunity in matters of employment can be predicated only as between persons, who are either seeking the same employment, or have obtained the same employment. It will, for example, plainly make no sense to say that because for employment as professors of colleges, a higher University degree is required than for employment as teachers of schools, equality of opportunity is being denied. Similarly it is meaningless to say that unless persons who have obtained employment as school teachers, have the same chances of promotion as persons who have obtained employment as teachers in colleges, equality of opportunity is denied. There is, in our opinion, no escape from the conclusion that 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. ;