Judgement

AYYANGAR, J., (Majority judgment: B. P. Sinha, C.J.I. and Wanchoo and Ayyanger, JJ.) This is an appeal by Special Leave against the judgment of the High Court of Punjab dated October 3, 1961. That judgment was rendered in a petition under Art. 226 of the Constitution filed by the respondent - Joginder Singh and by their order allowing the said petition in part, the learned Judges struck down R. 2 (d) and (e) and a part of R. 3 of the Punjab Educational Service (Provincialised Cadre) Class III Rules 1961,which for convenience we shall call the impugned rules, on the ground that those clauses were violative of the rights guaranteed by Art. 14 and Art. 16 (1) of the Constitution.

2. Certain facts have to be stated in order to appreciate both the manner in which the question was raised as well as the decision of the learned Judges now under appeal.

3. The respondent was before the 1st October 1957 working as a "Junior vernacular teacher" in a District Board High School in District Hoshiarpur. The points in controversy in this appeal turn on the precise changes which were effected in the status and conditions of service of teachers like the respondent employed in District Board and Municipal Board Schools by certain executive instructions issued by the Punjab Government in September, 1957 to take effect from October 1, 1957, by reason of which these teachers became State employees but before proceeding to the details of these changes, it would be convenient to set out the position and conditions of service of teachers employed in State schools which prevailed on that date.

4. At that date teachers in State employ were governed by rules framed under Art. 309 of the Constitution which had been promulgated on May 30, 1957. These rules were entitled "The Punjab Educational Service Class III School Cadre Rules, 1955." We shall have occasion to refer to these Rules in detail after narrating the facts which have given rise to the present appeal. For the present it is sufficient to state that these rules prescribed inter alia the qualification for appointment, the recruiting authority, the conditions of service and seniority interse of members of the Service. The appendices to these rules specified the scales of salary to which teachers falling within the various grades which were specified would be entitled. The scales of pay of these State teachers were revised as a result of the acceptance by Government of the recommendation of a committee for pay revision and under an order of Government dared July 23, 1957, Junior teachers" in the State service the class of Officers with whom we are now concerned were split up into three grades: (a) Head Masters, (b) those in the middle scale, and (c) those in the lower scale. This Government order fixed the percentages of the teachers to be comprised in each group. It would be seen that so far as Head Masters were concerned, that could be no definite number because that depended upon the number of schools in which they could function but for teachers other than Head Masters, i.e., in what has been termed "the junior teacher grade", 15 per cent of the total strength of junior teachers were put in the "middle scale" on a salary scale of 120- 5-175 and this percentage included the head masters also though they were on a still higher scale of salary, while the rest of the 85 per cent were to be in the "lower scale" on a salary scale of 60-4-80/5-120. This Government order further directed: "Fifteen percent of teachers in this group should straight way be promoted to the middle class by selection based on seniority and merit while the rest should be given the lower scale." These were the rules governing the category called "Junior Teachers in the State Cadre" on 1-10-1957.

5. By an Executive instruction dated 27-9-1957, (to be effective from 1-10-1957), in the form of a communication from the Secretary to the Education Department of the State to the Public Instruction, a change was made in the terms