Judgment

RAY, C. J. :- This is an appeal by special leave from the judgment dated 29 September, 1965 of the Allahabad High Court.

2. The question in this appeal is whether the appellants who are plaintiffs in the suit are entitled to be classified and re-designated as lower division clerks.

3. The appellants were employed in the Government Harness and Saddlery Factory, Kanpur. They were designated as checkers. Their duties were substantially clerical. They made representations to the authorities for being classified as clerks. The matter was referred to a Committee called Kalyanwala Committee . The Committee recommended that persons doing clerical work should be designated as lower division clerks. The recommendation was accepted by the President of India. The Director General was directed to re-classify checkers as lower division clerks if they were matriculates or completed three years continuous service. The appellants claimed that they satisfied the tests and yet they were not classified as lower division clerks. The grievance of the appellants was that other employees who did not possess the necessary qualifications were designated as lower division clerks. The appellants asked for a declaration that they were entitled to be classified and redesignated as lower division clerks. The appellants founded their claim on the letter dated 17 November, 1953.

4. The respondents contended that the duties performed by the appellants were not substantially clerical and other employees who were sufficiently qualified were designated as lower division clerks.

5. The trail Court referred to the oral evidence. Three witnesses on behalf of the appellants narrated their career in the service of Harness and Saddlery Factory and described the duties performed by them. The trial Court also referred to the evidence on behalf of the respondents. The principal issue before the trial Court was whether the appellants were entitled to be classified and designated as lower division clerks on the basis of the recommendation of Kalyanwala Committee and the sanction of the President of India thereon. On this issue the trial Court referred to the evidence on behalf of the parties and found that the evidence showed beyond any doubt that the appellants performed duties which are of a substantially clerical nature. The trial Court, therefore, answered the issue in favour of the appellants.

6. On appeal the District Judge found in favour of the appellants that the duties performed by them were of a substantially clerical nature. The District Judge, however, held that the Court had no jurisdiction to grant relief to the appellants even if departmental rules have been disregarded by the executive authorities.

7. The High Court on second appeal found that the finding of the trial Court as well as of the first appellate Court was in favour of the appellants that they performed duties of a substantially clerical nature. The learned single Judge of the High Court on second appeal referred the matter to the learned Chief Justice for constituting a larger Bench of the question as to whether the order of the President of India created a right in favour of the appellants.

8. The matter was thereafter heard by a Division Bench of the High Court. The question for consideration before the High Court was whether the letter dated 17 November, 1953 conferred any right on the appellants. The appellants contended that the letter constituted a rule framed by the President of India under Article 309 of the Constitution. The respondents on the other hands contended that the letter was a mere order of an administrative nature.

9. The letter dated 17 November, 1953 was addressed by the Under Secretary to the Government of India, Ministry of Defence to the Director General, Ordnance Factories. The letter referred to the recommendations of a committee of Enquiry called the Kalyanwala Committee and conveyed the sanction of the President as follows :

"The existing posts of Checkers, Grades