KAN SINGH, J. - (1.) THE writ petition before us is by one Shri H. C. Kothari, who is at present working as a statistician in the Agriculture Department of the Government of Rajasthan and by it he seeks a writ in the nature of mandamus against the respondent State for fixing him up as a statistician in the Civil Supplies Department with effect from 21-2-1950 in the grade 500-25-700 with a special pay of Rs. 100/- and for giving him further consequential reliefs by directing the respondents to fix the salaries for the various posts subsequently held by him on the basis of the salary to which he was entitled in the Civil Supplies Department of the State. THE case set up by the petitioner in the writ petition may be outlined as follows: THE petitioner, who entered the service of the Ex-Jaipur State was a Statistical Officer in that State on the date of the formation of Rajasthan and was getting Rs. 300/- (Local Jaipur coins) in the grade of Rs. 250-10-350. By a Government order No. 2154/c. S. R. dated 1-5-1949 his services were placed at the disposal of the Civil Supplies Department. In the Supplies Department the petitioner came to be appointed as a statistician on 21-2-1950 in a temporary capacity. THE petitioner asserts that the position of a statistician vis-a-vis a Deputy Commissioner in the Civil Supplies Department had been settled by the Government by their order dated 12-9-1949, which is Annexure I on the record. According to the petitioner as statistician he was entitled to a salary of Rs. 500/- in the grade of Rs. 500-25-700 with a special pay of Rs. 100/- like that of a Deputy Commissioner, who was equivalent to a District Collector. THEreafter the Government created a cadre of Statisticians which consisted of 3 Statistical Officers to be attached to the Bureau of Economics and Statistics and three statisticians were to be attached to the Agriculture, Civil Supplies and Labour Departments respectively. THE petitioner claims that a selection was made against the sanctioned six posts and that he was selected by the Rajasthan Public Service Commission and was declared senior most by Government order dated 30th April, 1951, which is Annexure II on the record. THE petitioner says that he continued to work as a statistician in the Civil Supplies Department upto 4-5-1954 when he was transferred to the Bureau of Economics and Statistics. He was posted in the Bureau of Economics and Statistics with effect from 5-5-1954 on a supernumerary post created by the Government by its order dated 19-4-1955. THE petitioner continued in the Bureau of Economics and Statistics Department till 31-3-1955 when he was transferred to the Agriculture Department with effect from 1-4-1955, and was posted there as a statistician in the officiating capacity, in the grade of Rs. 300-25-800. He submits that he was given the pay that he was already drawing. According to him his pay was fixed at Rs. 400/-provisionaly while he was in Civil Supplies Department. When he came to be posted as a statistician in the Agriculture Department in officiating capacity he got a salary of Rs. 425/-only. THE petitioner points out that after the formation of Rajasthan the Government made Rajasthan Civil Services (Unification of Pay Scales) Rules here-in-after to be referred as Pay Scale Rules on 12th July, 1950, which were made applicable from 1-4-1950 but according to him no provision was made in these rules for the employees of the Civil Supplies Department. THE Government, however, made an amendment of the Pay Scales rules on 5-7-1954 and thereby included the employees of the Civil Supplies Department in the schedule of the Pay Scale Rules. But the petitioner points out that here again the post of a statistician in the Civil Supplies Department was not so included. THE petitioner further points out that while making provision for the post of a Deputy Commissioner a qualification was laid down that the pay of Rs. 500-25-700 with a special pay of Rs. 100/- was admissible to only the officers drawn from the R. A. S. Cadre. After the Pay Scales Rules the Rajasthan Government framed the Rajasthan Civil Services (Rationalisation of Pay Scales) Rules, 1956 for the purpose of revising the pay scales of the Government employees but here again the grievance of the petitioner is that no benefit was conferred on him inasmuch as for the statisticians of the Bureau of Economics and Statistics it was mentioned in the schedule that the revision of pay was postponed pending organisation of a Statistical Service. A similar reservation was made in respect of the statistician in the Agriculture Department by providing that the Revised Pay Scales will not be admissible to a statistician in view of the remarks regarding the Statistical Department. It appears that as the re-organisation of a Statistical Service had taken considerable time the Government fixed the Rationalised Pay Scales for the Bureau of Economics and Statistics by the Government Order No. F. 2 (8) F. D. R. /56, dated 28th January, 1957 but the petitioner who was officiating as statistician in the Agriculture Department again did not get any benefit as this revision of pay scales applied only to the Bureau of Statistics. THE matter then proceeded further and with effect from 3-10-1960 pay scales of a statistician in the Agriculture Department were revised but it was provided that the revised scale would be admissible to present incumbent only on being properly selected for that post in the cadre. THE new scale was Rs. 500-25-700-EB-30-850. THEn came the Rajasthan Statistical Service Rules, 1958, which were published in the Gazette on 6-11-1958. By these rules the post of a statistician in the Agriculture Department had been put in the cadre of Deputy Directors. Under the rules the posts of Director and Deputy Director have been made selection posts and appointments on these posts could be made only by promotion. As the petitioner was only officiating as a statistician he was substantively fixed up as an Assistant Director on his becoming a member of the Rajasthan Statistical Service. THE post of Assistant Director, Economics and Statistics to which the petitioner had been promoted with effect from 1-7-1958 carries a grade of Rs. 300-25-800, and the petitioner has been fixed on this post by Government order dated 23-3-1962 (Annexure 9) with effect from 1-7-58. In other words he was fixed retrospectively from 1-7-1958. THE petitioner feels aggrieved on account of the postponement of his fixation from time to time and as in the mean time, according to him, the Government had recruited officers from outside and each time reservation was made in the various Government orders which resulted in denial of the benefit of higher pay scales to the petitioner. THE petitioner thus challenges that the various reservations made in the Government orders on the ground that they violated Art. 14 of the Constitution. He, therefore, submits, that these reservations be struck down as unconstitutional and the Government be directed to fix his proper salary. Apart from every thing his case is that whatever might be his substantive rank he should be given the salary of the posts on which he had actually worked from time to time even though in an officiating capacity. He also submits that he made several representations in the last 12 years but without any result.
(2.) THE petition has been opposed by the State. It is denied that the petitioner had not been properly fixed according to the rules. It is also denied that any portion of the rules including the provisions for officers of the Statistical Department were void. As a preliminary ground it is urged that the writ petition has been filed after a considerable delay, and, therefore, the petitioner should not be heard in the matter. It is pointed out that as far back as in the year 1953 the petitioner was clearly told that he was not entitled to the salary of a Deputy Commissioner in the Civil Supplies Department. It is next urged that the petitioner should have availed of the alternative remedy of a civil suit and in such matters this court should not order the fixation or payment of any salary in exercise of its extra-ordinary powers. It will be clear from the rival contentions set forth above that for dealing with the matter we have to ask ourselves and answer the following questions: (1) Whether the petitioner was substantively fixed up and if so on what post? (2) Whether he was entitled to a grade of Rs. 500-25-700 from from 21-2-50, with a special pay of Rs. 100/-, and whether the provision in the Government Notification to the effect that this salary was admissible only to the officers of the R. A. S. was null and void? (3) Whether the petitioner was entitled to carry the above salary claimed by him when he held the post of a Statistical Officer in the Bureau of Economics and Statistics, and thereafter when he was posted as a statistician in the Agriculture Department? (4) Whether he was entitled to have any particular pay grade as a statistician even though none was prescribed under the Rationalisation Pay Scales Rules to start with and then what was the effect of the pay scales fixed for a statistician when it was laid down that this revised pay grade was admissible to an officer on selection only ? (5) Should we exercise our extraordinary jurisdiction in the present matter, either on account of delay in filing the writ petition or on account of the availability of an alternative remedy of a civil suit. ? The other consequential reliefs that the petitioner claims can flow only if we answer the above questions in favour of the petitioner. Re. (5) - It is clear from the Government letter dated 19-10-1953 (Ex. S. 3) on record that the representation of the petitioner when he was still there in the Supplies Department for giving him the pay grade of 500-25-700 with a special pay of Rs. 100/- was turned down in very clear terms. It had been pointed out in that letter that the Deputy Commissioners in the Civil Supplies Department were not equivalent in rank and pay to a Collector, and, therefore, he could not be allowed the pay grade of a Collector. We at this stage are not dealing with the correctness of this stand, which we will do here-in-after at appropriate place but are directing attention only to the fact that the position had been made clear to the petitioner as back as 19-10-1953. If Shri Kothari felt aggrieved by this decision of the Government then he should have either filed a writ petition at that time or should have sought his remedy by a civil suit. We could have dismissed this writ petition on this score alone but as the learned Government Advocate did not indicate that he would be raising the preliminary objection when the arguments began and as the arguments had continued for almost four days, we think it right to deal with the other points as well. Re. (1) - There is no dispute that on the day of formation of Rajasthan the petitioner was a Statistical Officer getting Rs. 300/- (Jaipur coin ) in the grade of Rs. 250-10-350. The order of the Government dated 21-5-1949 by which his services were placed at the disposal of the Civil Supplies Department may be quoted below: "government of the United State of Rajasthan. No. 2154/csr Dated 21st May, 1949. OFFICE ORDER The services of Shri H. C. Kothari, Statistical Officer, Jaipur, are placed at the disposal of the Supplies Department. He will retain his lien in the Statistics Department. By Order Sd/- K. Radha Krishnan, Chief Secretary to the Govt. of the United State of Rajasthan Jaipur. " Then there is the order about his reversion from the Civil Supplies Department, which is Annexure 33, and it runs as follow: "government of Rajasthan Appointment (C) Department ORDER Dated, Jaipur the 5th May, 1954 No. F. 1 (456) Apptta (C)/51 - Shri H. C. Kothari, Statistician, Civil Supplies Department, Head-quarters Jaipur, is reverted to his parent Department, the Bureau of Statistics. By Order of His Highness the Rajpramukh Sd/- B. G. Rao, Chief Secretary to the Government of Rajasthan. " Then on his reversion from the Civil Supplies Department Shri Kothari was appointed as a Statistical Officer on a supernumerary post created by Government order No. F. 6 (46) Appts- (A)/54 dated 19-4-1955. He was thereafter posted as a statistician in the Agriculture Department in an officiating capacity, vide Government order dated 28-3-1955 (Annexure 22 on record.) In the mean time the substantive appointments to the posts of Statistical Officers were made by the Rajpramukh by his order dated 30-4-1951 (Annexure 2), which runs as follows: "vol. 3, No. 27, Part I, dated 30-4-1951 Government of Rajasthan (Appointment Department (A)) Jaipur, April 30th, 1951 F. 1 (357) Apptts. (A)/5l - His Highness the Asstt. Statistical Officers : Rajpramukh is pleased after consulting the Public Service Commission to make the following substantive appointments to the posts of Statistical Officers and Asstt. Statistical Officers. The names are arranged in order of seniority in each category, effective from the date of this order: Statistical Officers: 1. Shri H. C. Kothari 2. Shri Dr. Umrao Bahadur Mathur 3. Shri Bhanwar Lal Agarwal Shri Ram Narain Sharma Shri Satya Prakash Agarwal 1. Shri Nemichand Jain The Head of the Department will formulate proposals for the actual posting of these officers for the approval of Government. By Order His Highness the Rajpramukh Sd/- S. W. Shiveshwarker Chief Secretary to Government. " 4. In view of these orders we have no doubt whatsoever in our mind that Shri H. G. Kothari was fixed up as a Statistical Officer in a substantive capacity in the service of the Rajasthan State. Mr. Jain, the learned counsel for the petitioner, seeks to get away from this position by relying on the words: "the Head of the Department will formulate proposals for the actual posting of these officers for the approval of Government. " occuring in the above order. The posting is a different matter from fixation of substantive rank and an officer who may be substantive on one post may actually be posted on another post in a different department but that will not mean that he ceases to be substantive on the post to which he is appointed. The order, Annexure 2,. clearly recites that the Rajpramukh had not only selected the candidates but had also made substantive appointments to the posts of Statistical Officers. A perusal of Ex, S. I. filed by the learned Government Advocate makes the position quite clear beyond any shadow of doubt. Ex. S. I. is a copy of the letter of the Accountant General to the Secretary to the Government in the Statistical Department, and it runs as follows: - "copy of letter No. GADIV/stat/494, dated the 5-8-64 from the Assistant Accounts Officer of the Accountant General, Rajasthan Jaipur to the Secretary to the Government of Rajasthan, Statistics Department of Rajasthan, Statistics Department, Jaipur. Sub.- Pay Fixation of Shri H. C. Kothari, Asstt. Director of Economics & Statistics. Ref - Your letter No. F. 6 (48) Plan/62 dated the 31-7-64. I am to invite a reference to your letter under reference. Replies to the points raised in this letter are given below: (1) The pay of Shri Kothari was fixed under the unified pay scales at the stage of Rs. 385/- w. e. f. 3-11-50 in the scale of Rs. 200-10-280-15-400. He had opted the unified scales from 2-9-50 but as he was on leave upto 2-10-59 he was allowed pay @ 385/- w. e. f. 5-11-50. (2) His pay in Rationalised pay scales was fixed at the stage of Rs. 425/- w. e. f. 1-3-56 in the scale of Rs. 250-15-400 EB. 25-600. (3) His pay has been fixed as Asstt. Director in the rationalised pay scale of 300-25-550-30-700 at the stage of Rs. 500/-w. e. f. 1-8-58. This fixation was done in the month of January, 1964. His pay was fixed in the revised pay scale 1961 No. 26 (285-25-510 EB. 25-560-30-800) w. e. f. 1-9-61 at the stage of Rs. 620/ -. This fixation was also done in the month of January, 1964. " 5. Para 1 recites that Shri H. G. Kothari had opted the unified scales from 2-9-50 and he was fixed up in the grade of Rs. 200-10-280-15-400 on a salary of Rs. 385/- with effect from 3-11-1950. Thus this time scale for Shri Kothari was fixed according to his choice for which there is a provision in Sub-rule (c) of R. 3 of the Pay Scales Rules: - "3 (c) Pre-Covenant entrants, who, being appointed to posts in an integrated service elect these rates of pay. " Thus it cannot be said that Shri Kothari had not been substantively fixed up as a Statistical Officer in the Bureau of Statistics which at that time carried a grade of Rs. 200-10-250-EB-15-400. Shri Kothari does not dispute that after the constitution of the Rajasthan Statistical Service he has been taken as an Assistant Director Substantively. Re. (2) - For the second question Shri Kothari places reliance on the Government order dated 12-9-1949 (Annexure I ). The copy of the order by Shri Kothari being incomplete the Government Advocate filed a complete copy of this order which is Ex. S. 2. The relevant clauses of that order are reproduced below: - "government have been pleased to pass the following orders on the proposal submitted by the Committee constituted for the integration and reorganisation of the various supply Organisations functioning in the covenanting States: (1) The designation of the head of the Department shall be Commissioner, Civil Supplies. (2) He will have the following staff under him at Head-Quarter: (a) A personal Assistant. (b) Three Dy. Commissioners, (i) for General Administration and controls; (ii) for Rationing & Transport; and (iii) for Food Procurement. (c) A Statistician (of the pay and status equivalent to that of a Deputy Commissioner ). (d) A Legal Adviser cum Enforcement Officer and (e) A Special Accounts Officer. " (9) The salaries of all the staff will be as at present. The status of the Deputy Commissioner will be that of the Collectors of Districts and of the Assistant Commissioners, that of Assistant Collectors if officers of that status are appointed from existing incumbents, otherwise, they will continue to have the status of their substantive posts with the designations of the Civil Supplies Department attached to them. " On a fair reading of clauses (2) and (9) of this order in conjunction it is quite clear that while the general set up was contemplated as per clause (2), so far as the existing incumbents were concerned, they were to have the status of their substantive posts with the designations of the Civil Supplies Department attached to them. Further it had been clearly provided that the salaries of the staff would be as at present. In view of this clear provision Shri Kothari can not be held entitled to the pay of a Deputy Commissioner or for that matter that of the District Collector while he remained in that department as a statistician. Right to salary is based either on a contract or some rules of service which have the force of law. We have not been shown that Shri Kothari can be held entitled to this salary of Rs. 500-25-700 with special pay of Rs. 100/- either by contract or by virtue of any statutory rule. It is true that the Civil Supplies Department was not included in the scheme of Pay Scales Rules to begin with but it was subsequently brought in by a Government decision which was in the following terms: - "civil SUPPLIES DEPARTMENT Posts Scale of Pay Remarks Commissioner 800-50-1200 plus Spl. pay of Rs. 200/- This will take effect from 1-4-50. The scale (with the Special pay) will be admissible only to an officer of the R. A. S. not below group 'g' appointed to hold the post. The scale is temporary and for so long as the posts is placed in the Commissioner's grade. Dy. Commissioner 500-25-700 plus a Special pay of Rs. 100/- The scale (with the special pay) will only be admissible to an officer drawn from the R. A. S. (provided he is considered fit to be posted as a Collector. NOTES 1. These scales will take effect from 1-4-50 in the case of those selected for the various posts in accordance with the relevant rules of selection (Finance Deptt. Order No. F. 1 (1) R/52, dated 3-12-52 ). 2. As the Civil Supplies Department is a temporary Department, employees of this Department, who become surplus to the requirements of this Department will not carry with them the scales sanctioned for this Department. Employees of the Department, who have been substantively integrated in other services of the State, will, while, serving in this Department enjoy the pay scales sanctioned for this Department and not the scales which may have been sanctioned in their parent departments. On reversion to their parent Departments they will have the pay scales to which they may be entitled in respect of their posts in the parent Departments. "' This order clearly recites that the scale of Deputy Commissioners would be admissible to an officer drawn from the R. A. S. only, and therein a further rider is added that even the R. A. S. Officer should be considered fit to be posted as a Collector. We are not persuaded to hold that this requirement about an officer being drawn from the cadre of R. A. S. was void. We will consider the various cases cited by Shri Jain here-in-after. The note (2) above, however, clearly recites that the employees of the Civil Supplies Department shall not carry the pay scales on reversion to their parent Department and they will have such pay scales as they are entitled to in their parent Department. In the face of this clear provision it is idle to contend that Shri Kothari could either claim the scale of Rs. 500-25-700 or could carry it with him on posts held by him in other Departments. Re. (5)4 - Our answer to question No. 3 is covered by the discussion under questions Nos. 1 and 2. As Shri Kothari was substantively a Statistical Officer and not a Statistician in the Civil Supplies Department, he could not carry the salary of a Deputy Commissioner in the Civil Supplies Department with him, while he worked in other departments. Re. (4) - As already observed by us above payment of salary is either governed by contract or by Service Rules and to claim a particular salary or grade the claimant officer must show as to how he is entitled to a particular salary or pay grade. The fact that no particular salary is prescribed for a post on which an officer is officiating while holding a lower substantive rank will not advance the case of the officer in any manner. Under the Rajasthan Service Rules the Government may fix the pay of an officiating Government servant at an amount less than that admissible under these rules. This shows that even where a higher officiating salary is admissible the Government can fix a lower rate of salary. The case will be worse and not better if no salary at all is fixed for the higher post, 5. We may lastly deal with the plea of discrimination under Art. 14 of the Constitution regarding the validity of several reservations made about the statisticians when the pay scales were revised in 1956. In the schedule of the Rajasthan Service Rules (Rationalisation of Pay Scales) Rules, it was noted against the posts of Bureau of Statistics that the revision was postponed pending organisation of a Statistical Service. On this ground for the post of statistician in the Agriculture Department the revision of pay scales was postponed. Ultimately when the Government found that its scales of formulating Rajasthan Statistical Service was likely to take time it issued an order regarding Rationalisation of Pay Scales for the statisticians and added the following remarks against the posts: - "this post has been equated with the post of Dy. Director of Economics and Statistics and encadred in Rajasthan Statistical Service. The scale will be admissible to present incumbent only on being properly selected for that post in the cadre. " The postponement of the revision of the pay scales was on account of the fact that the Government wanted to introduce the Rajasthan Statistical Service. A reason has thus been given for postponing the revision of pay scales for statisticians and statistical officers as at that time the Government did not have a clear picture for the proposed service. Thus a basis for classifying statistical officers or statisticians from other Government servants has been clearly indicated. It has to be borne in mind that the work involving statistics is of prime importance in a developing economy and planning has to be done on the basis of properly compiled statistics. In that situation, organising Statistical Service which was a new service in the State of Rajasthan, if the Government had taken its own time, it cannot be questioned that the Government did not have a good reason for taking some time in evolving such a service. Integration of the various Departments and the question of evolving a proper pay structure to cover the various Departments is a long process and it may not be possible to evolve a pay structure to cover all the Departments by one stroke. This consideration weighs with us in holding that the various Government orders cannot be held bad merely because certain reservations are made about the officers of a particular Department. It is not the petitioner's case that a differential treatment has been accorded between an officer and officer of the same Statistical Department. Shri Jain placed reliance on several decisions of the Supreme Court in support of his argument about the applicability of Art. 14. He cited Ram Krishna Dalmia vs. Justice Tendolkar (l), Jyoti Pershad vs. Union Territory of Delhi (2), Promod Chandra vs. State of Orissa (3), Jai Lal vs. Delhi Administration (4) and Pandurangarea vs. The Andhra Pradesh Public Service Commission (5 ). We consider it unnecessary to deal with the line of several cases at any length. Suffice it to say that the principles about the applicability of Art. 14 are now well settled. There is no difficulty in stating the principles but the problem always is one of applying them correctly. In Jyoti Pershad vs. Union Territory of Delhi (1) their Lordships had occasion to review all other previous decisions and summarising them they laid down the following principles : Stating them in the words of their Lordships they are as follows: - "it is now well established that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (1) that the classification must be founded on an inteligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of Supreme Court that Art. 14 condemns discrimination not only by a substantive law but also by a law of procedure. The decisions further establish: - (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds; (d) that the legislature is free to recognise decrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f) that while good faith and knowledge of the existing conditions on the part of a iegislature are to be presumed, if there is nothing on the face of the law or the surrounding circums tances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionaiity cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. The above principles will have to be cons tantly borne in mind by the Court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws. " The several reservations in the various orders can be sustained as pointed out by us above and we have no reason to think that the Government had singled out the petitioner; in this behalf. We have not been told that the officers who were fixed up along with the petitioner as Statistical Officers (Vide Annexure II) were treated favourably in comparison to the petitioner in any respect. In view of what we have said above we do not find any merits in the writ petition which we hereby dismiss with costs. .;