JUDGMENT

KRISHNA IYER, J.:—The main appeal with which we are concerned in this batch of civil appeals (and special leave petitions whose fate will depend on the decision in the civil appeals) is one where a Railway employee successfully challenged the refusal to pay certain emoluments by the Union of India in the Madras High Court. His writ petition in the Madras High Court was in the wake of similar one in the Andhra Pradesh High Court a few years prior thereto. The decision of the Andhra Pradesh High Court had become final, especially because the special leave petition filed by the Union of India challenging it had been dismissed by this Court. The Madras High Court considered the reasoning given in the Andhra Pradesh decision and was inclined to dissent from it, but felt that the consequences of divergent decisions in the two High Courts might lead to anomalies and should, therefore, be avoided. The High Court expressed itself thus :

"With respect to the view of the Andhra Pradesh High Court, we are unable to agree with in.......... But the decision of the Andhra Pradesh High Court has created a peculiar situation. The result of giving effect to it, as the Department is bound to give effect to that judgment which has become final is that employees like the petitioners in the Railway service in the Andhra Pradesh Area will be treated differently from the petitioners, who are in every way similar to them except for the region in which they happen to work, in the matter of pay scales and other matters."

Having regard to this odd potential consequence, the High Court of Madras fell in line with the Andhra Pradesh High Court and upheld the writ petitioners claim.

2. A few facts, minimally necessary to bring out the two questions of law urged before us by the aggrieved Union of India, may now be narrated. We are concerned with the MSM Railway, one of those British Indian companies, since merged in the Indian Railways. The employees under the MSM with whom we are concerned fell in two categories, namely, Commercial Clerks and Asstt. Station Masters/Station Masters. Their pay scales, at the various grades, were substantially similar although at the higher levels the Assistant Station Masters/Station Masters had higher scales of pay. It was found that at the lowest levels in the two categories of posts, there was long stagnation since around 90 per cent of these posts were occupied by the lowest categories. The Union of India, around 1956, felt that there was need for revision of this set up and with a view to give more relief and opportunities for increments to the Commercial Clerks at the most congested levels, produced what has been called the new deal. We may make it clear that the new deal covered not merely Commercial Clerks and Assistant Station Masters and Station Masters but also applied to other categories in the Railway service. The particular problem which confronts the court now alone need be mentioned. That is why we are focussing attention on Commercial Clerks and ASMs/SMs.

3. Way back in 1930, and from then on, several Commercial Clerks went over and became Assistant Station Masters/ Station Masters and to some extent they enjoyed certain advantages on this score. They continued to work out their respective fortunes in the administrative service on the basis of the then rules and scales of pay. When in 1956, the new deal was brought in some Assistant Station Masters/Station Masters found that although they were senior to certain Commercial Clerks at the early stages, their pay became less than that of Commercial Clerks. This, according to them was unequal treatment of equals. It was on this grievance that with a constitutional veneer some of those employees moved a writ petition in the Andhra Pradesh High Court. That High Court took the view, right or wrong, that Commercial Clerks and ASMs/SMs were substantially treated alike and when certain disparities in emoluments arose on account of the new deal, discrimination ensu