JUDGMENT M.G. Chitkara, Member J.—Civil Writ Petition No. 261/83, was filed by various Lecturers (College Cadre) under the Government of Himachal Pradesh in the Himachal Pradesh High Court which has been transferred on 29-9-1986 to the Himachal Pradesh Administrative Tribunal under section 29, sub-section (1) of the Administrative Tribunals Act, 1985, and as such the same is treated as an application under section 19 of the Administrative Tribunals Act. 2. The applicants in the petition under Article 226 of the Constitution of India have prayed for quashing the order contained in secret letter dated May 16, 1983 whereby the applicants were treated as fresh entrants in Government service on the taking over of S. D. B. College on September 15, 1977. 3. The facts relevant for the decision of the application are briefly enumerated as follows: A Degree College known as Rana Padam Chandra Sanatan Dharam College, Shimla, affiliated to the Punjab University and recognised by Punjab Government, was set up at Shimla. After the partition of country in the year 1947 another Degree College known as Bhargava Municipal College was set up in Shimla, In the year 1957 on the amalgamation of aforesaid two Colleges the Governor of Punjab accorded approval to the amalgamation vide order Annexure-A to the petition. The services of the permanent members of the staff were taken over by the College except the members who attained the age of 55 years and so far as temporary staff was concerned it was decided that the Government will make efforts to absorb the temporary staff in some other institutions, if their services were not required by any College. It was also decided that the Education Department will make arrangement to absorb the Principal Shri V. B. Anand, Shri Indira, Prof of Sanskrit and Shri B. N Pal, Prof of Economics, in the Government service as it was not possible to employ them in the amalgamated College. On July 22, 1970 Himachal Pradesh University was established and the College was affiliated to the Himachal Pradesh University and the service conditions of the teachers were to be governed under the First Statutes and First Ordinances of the Himachal Pradesh University. 4. On July 22, 1970 Himachal Pradesh University was established and the College was affiliated to the Himachal Pradesh University and the service conditions of the teachers were to be governed under the First Statutes and First Ordinances of the Himachal Pradesh University. 4. On the request of Managing Committee of Rana Padam Chandra Sanatan Dharam Bhargava College, Shimla vide notification dated September 24, 1977, the Government of Himachal Pradesh took over the aforesaid College with effect from September 15, 1977 in the public interest. The services of the College staff in service on September 14, 1977 were also taken over on the various terms and conditions mentioned in the notification dated September 24, 1977. The Himachal Pradesh Government took over the services of the petitioners 1 to 20 and Dr. V. P, Khanna (since retired) with effect from September 15, 1977 i e. the date from which the College was taken over by the Government Such a notification was issued on August 7, 1979 and the services of the petitioners 21 and 22 were taken over with effect from the same date i. e. August 7, 1979 vide notification dated February 4, 1980 alongwith those of Shri J M. L. Bhatnagar and Smt. Usha Baljeet Singh (since retired) and were not joined as party in the writ petition. 5. The Government of Himachal Pradesh issued a letter dated April 22, 1982 addressed to the Director of Education that the Government had decided that entire period of service of the employees of the erstwhile S. D B. College was to be counted towards their pension, gratuity and "other benefits. It was also decided that a wasting cadre would be constituted of the employees whose services had been taken over, and an equitable ratio was to be worked out between the existing Government employees and those coming from the college for the purposes of promotion in the eligible categories. The Secretary (Education) addressed the letter dated August 10, 1982 to the Director of Education, Himachal Pradesh clarifying also that other benefits meant all those benefits which a Government servant gets by way of rendering service under Himachal Pradesh Government. The Secretary (Education) addressed the letter dated August 10, 1982 to the Director of Education, Himachal Pradesh clarifying also that other benefits meant all those benefits which a Government servant gets by way of rendering service under Himachal Pradesh Government. The Secretary (Education) to the Government of Himachal Pradesh sent a secret letter to the Director of Education on May 16, 1983 from which it appears that the Government took a somersault conveying that earlier decision taken by the Government with regard to the creation of "wasting cadre in respect of the employees taken over from erstwhile S. D B College, Shimla, newly named as Government College, Shimla had been reviewed, by the Government and now it had been decided that no such "wasting cadre" for such employees would be created and that such employees would be treated as fresh entrants and placed at the bottom of the old Government employees in their respective cadres for the purpose of seniority. The applicants being aggrieved from this unilateral action of the Government, as mentioned earlier, have filed the present petition/application challenging such action of the Government on various grounds. 6. The State Government intended to make certain promotions to various posts. The applicants filed C. M. P. No 1922/83 in the High Court of Himachal Pradesh praying that the State be restrained from making promotions on which the High Court of Himachal Pradesh vide order dated September 5, 1983 was placed to order that all promotions made hereinafter will be subject to the decision in the writ petition. 7. S/Shri R. K Gupta, S K. Dhawan and B. R. Chopra, Lecturers, Government College for Boys, Shimla moved C. M. P. No. 2390/83 under Order 1 Rule 10 read with section 151 C P, C. for being impleaded as respondents as interveners. The C. M. P. was granted vide order dated January 4, 1984 by the Honble High Court of Himachal Pradesh and S/Shri R. K. Gupta, S. K Dhawan and B. R. Chopra were impleaded as intervener-respondents. 8. Shri H. K. Paul, learned Assistant Advocate General appearing for respondents 1 and 2 and Shri Deepak Gupta, Advocate representing respondents 3 to 5 have raised a preliminary objection that the petition/application is not maintainable on the ground for non-joinder of the necessary parties. 8. Shri H. K. Paul, learned Assistant Advocate General appearing for respondents 1 and 2 and Shri Deepak Gupta, Advocate representing respondents 3 to 5 have raised a preliminary objection that the petition/application is not maintainable on the ground for non-joinder of the necessary parties. They have explained that the applicants are claiming seniority over the Lecturers who were not in Government service prior to September 15, 1977 and they are in large number and have not been impleaded, and as such the writ petition is not maintainable on the ground of non-joinder of necessary parties The learned Assistant Advocate General stated that at admission stage also such a preliminary objection had been raised that the petition was not maintainable for non-joinder of necessary parties. The High Court of Himachal Pradesh before issuing rule passed the following order on October 3, 1983 : "One of the main preliminary contentions raised by learned Advocate General is that on the ground of non-joinder of necessary parties, the petition is not maintainable. It is stated that the petitioners are claiming seniority over the Lecturers who are in Government service before 15-9-1977. Mr. Khanna, learned Counsel for the petitioners, states that it is not necessary to implead such Lecturers as respondents." It will be in the fitness of things if the preliminary objection regarding the maintainability of the writ petition is decided first before proceeding to deal with the matter on merits. Admittedly respondents 3 to 5 who are Lecturers in Government College for Boys in Shimla and were in service before the taking over of S. D. B, College Shimla on September 15, 1977 by the Government, were already in service. A reply to the writ petition has been filed on their behalf and it can be treated as a reply on behalf of all their colleagues in a representative capacity and as such it cannot be said that the lecturers who were in service before taking over of S D. B College with effect from September 15, 1977 are not before the Court and as such petition/application is not maintainable- 9. Shri D, K. Khanna, learned Counsel for the applicants submitted that the applicants do not claim seniority over any particular individual but it is a change of policy decision of the Government as contained in secret letter dated May 16, 1983, Annexure-G to the writ petition. Mr. Shri D, K. Khanna, learned Counsel for the applicants submitted that the applicants do not claim seniority over any particular individual but it is a change of policy decision of the Government as contained in secret letter dated May 16, 1983, Annexure-G to the writ petition. Mr. Khanna placed reliance and cited The General Manager, South Central Railways, Secunderabad and another v. A. V R Siddhanti and others, AIR. 1974 SC 1755 wherein it was observed at page 1756: "Where the validity of policy decisions of the Railway Board regulating seniority of Railway staff, was challenged on the ground of their being violative of Articles 14 and 16 of the Constitution, and the relief is claimed only against the Railway, it is sufficient if the Railway was impleaded and non-joinder of the employees likely to be affected by the decision in the case is not fatal to the Writ Petition Those employees were at the most proper parties but not necessary parties." A similar contention was raised and submitted before the Supreme Court that those members who had scored a march had not been impleaded as respondents and no relief could be given to the appellants. It was a case of promotees who had challenged the promotion of direct recruits and about 9 direct recruits moved an application for being impleaded as party and the application was granted. In A. Janardhana v. Union of India and others, 1983 0) SLJ 564, it was observed at page 583 that: "In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing-up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents." In B. Gopalaiah and others v. Government of Andhra Pradesh, AIR 1969 AP 204, dealing with a situation as in the present case, the Andhra Pradesh High Court held at page 205: "This is not a case of discrimination of individual against individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents." In B. Gopalaiah and others v. Government of Andhra Pradesh, AIR 1969 AP 204, dealing with a situation as in the present case, the Andhra Pradesh High Court held at page 205: "This is not a case of discrimination of individual against individual. This is a case where a whole class of citizens have been discriminated against and the Court cannot refuse to give relief to them on the ground that the class of persons who will be benefited as a result of the discrimination are not before the Court. The person who complains of discrimination cannot be expected to search the country for all persons who axe likely to be benefited by its discriminatory policy. Of course, if the discrimination is in favour of an individual against an individual different considerations might arise But this is not such a case. In my opinion, where a scheme formulated by the Government is attacked on the ground of its being discriminatory the position is precisely the same as if a statute is attacked as being discriminatory and it can never be an answer to such an attack that persons likely to be benefited by a discriminatory statute should be brought before the Court before the statute is struck down.” 10. In view of above, we hold that there is no merit in the preliminary objection and we find that the writ petition is maintainable. 11. It has been submitted by Shri D. K. Khanna, learned Counsel for the applicants that on taking over of the services of the applicants by Himachal Pradesh Government and on their transformation in the Government service, the concept oi fresh employment is excluded and the applicants are already in service employees and ought to have been treated at par with the in service (Govt. service) employees. service) employees. He further submitted that the State Government finally decided that matter vide letters dated April 22, 1982 and August 10, 1982 that the entire period of service put in by the applicants before the taking over of S D B College, Shimla by the Government, would be counted towards pension, gratuity and “other benefits", which means, all those benefits which a Government servant gets by way of rendering service under the Himachal Pradesh Government The State Government was bound to give effect to this decision but instead of doing so, the State Government strangely reversed the office order by a secret letter. The State Government also decided to have a "wasting cadre" of the employees whose services were taken over, on an equitable ratio between the existing Government employees and those coming from the College for purposes of promotion in the eligible categories. Mr. Khanna further submitted that the State Government, instead of implementing the final decision as contained in aforesaid two letters dated April 22, 1982 and August 10, 19829 decided the matter in the absence of the applicants, without notice to them and without giving them an opportunity of being heard, and passed the impugned order dated May 16, 1983 to their prejudice which as such is against the principles of natural justice. In rebuttal, Shri H. K. Paul, learned Assistant Advocate General appearing for respondents 1 and 2 and Shri Deepak Gupta, Advocate representing respondents 3 to 5 submitted that order dated May 16, 19S3 is in consonance with the provisions of F. R. 130, that the decisions of the Government as contained in letters dated April 22, 1982 and August 10, 1982 were in conflict with the Himachal Pradesh Education service (Class-1 Gazetted) College Cadre Recruitment and Promotion Rules, 1977 and as such the State Government was justified in reviewing its earlier decision and clarifying the decision vide letter dated May 16, 1983 which is just and legal. It was also submitted by them that the services of the applicants were taken over with effect from September 15,1977 and that S. D B. College was closed with effect from September 12, 1977 and as such the applicants services stood terminated on the closure of the institution and there was break in their service for the period from September 12, 1977 to September 15, 1977. It was also contended on their behalf that State Government created 56 fresh posts with effect from September 15, 1977 with a view to adjusting the applicants and others and as such the applicants were rightly adjusted against such posts and they could not be adjusted against the posts which were already existing. 12. We have gone through the record and have noted the respective contentions of the learned Counsel for the parties. It is clear from the perusal of Annexure-A that S. D. B. College and B. M. College at Shimla were amalgamated, during the year 1957. The Government of Punjab was pleased to accord approval to the amalgamation and a new institution known as Rana Padam Chandra Sanatan Dharam Bhargava College came into being as a result of such amalgamation. The Education Department was also to make arrangements for absorption of staff members. The relevant portion of the amalgamation proceedings on S. D. B. and B. M. College are reproduced as under: “(i) These will be only one College at Shimla to be named as the Rana Padam Chandra S. D. Bhargava College, Shimla ; ***** (iv) The present Principal of the S. D College will continue to be the Principal of the new college after amalgamation ; (v) As regards the staff, the permanent hands will be taken over by the new college and efforts will be made by the Govt. to absorb temporary staff in some other institutions, if it is not required by the new college To start with they will either be retained by the new college for three months or will be given three months pay in lieu of notice Such members of the staff who have attained the age of 55 years will have to go and they will not be the responsibility of the New College ; ****** (xvii) The Education Deptt. will make arrangements to absorb the following employees of the College in Govt. service, as it would not be possible to employ them in the amalgamated college." The result of amalgamation was that S. D. B. College and B. M. College Shimla were absorbed into and blended with each other and as a result of such amalgamation a new institution Rana Padam Chandra Sanatan Dharam Bhargava, College came into being. 13. service, as it would not be possible to employ them in the amalgamated college." The result of amalgamation was that S. D. B. College and B. M. College Shimla were absorbed into and blended with each other and as a result of such amalgamation a new institution Rana Padam Chandra Sanatan Dharam Bhargava, College came into being. 13. In view of term (v) of the amalgamation proceedings, the employees of both these institutions were taken over by the new college and efforts were required to be made by the Government to absorb temporary staff in some other institutions, if their services were not required by the new college. The only exception was that the members of the staff who had attained the age of 55 years would not be absorbed. The Education Department was to make arrangements to absorb the Principal Shri V. B Anand, Shri Indra, Prof, of Sanskrit and Shri B. N Pal, Prof, of Economics, who were duly absorbed in the Government service. The Rana Padam Chandra Bhargava College, Shimla was affiliated to Himachal University which was established on July 22, 1970 aod was duly recognised by the State Government. 14. The Managing Committee of Rana Padam Chandra Bhargava College passed a resolution on September 4, 1979 to close the college. The Working Committee of the Sanatan Dharatn Pratinidhi Sabha, Punjab accepted the recommendations of the Managing Committee to close the college vide its emergent meeting held on September 12, 1977 and further resolved that the Working Committee will have no objection if the Himachal Pradesh Government takes over the management of said college. Consequently, vide notification dated September 24, 1977, the Governor of Himachal Pradesh in the public interest ordered the taking over of the said college by the Education Department of the State Government with effect from September 15,1977 on various terms and conditions, more particularly condition No. 3, which is reproduced hereunder: "All reasonable liabilities as on 15-9-1977 of the Rana Padam Chandra Sanatan Dharam Bhargava College, Shimla will be borne by the Himachal Pradesh Government, Education Department. The decision of the Secretary (Education) to the Government of Himachal Pradesh as to the reasonabiiity of the liability shall be final and conclusive." It is the Secretary (Education) who employs direct recruits and those coming from the college for the purpose of promotion in the eligible categories. The decision of the Secretary (Education) to the Government of Himachal Pradesh as to the reasonabiiity of the liability shall be final and conclusive." It is the Secretary (Education) who employs direct recruits and those coming from the college for the purpose of promotion in the eligible categories. The said communication was issued with the prior concurrence of the Finance Department. The Secretary (Education) vide letter dated August 10, 1982, Annexure R-3/A2 clarified that the "other benefits" mean those benefits which a Government servant gets by way of rendering service under the Himachal Pradesh Government. It would be clear from the reading of letter dated April 22, 1982 and August 10, 1982, Annexure-E and Annexure R-3/12 respectively, that the entire service of the applicants before taking over of this institution by the Government, would be counted towards pension, and gratuity to which a government servant is entitled by way of rendering service under the Himachal Pradesh Government Thus, to us other benefits regarding length of service and promotion are also admissible. This decision, the Secretary (Education) was competent to take, because it was he who was to take a decision as to the "reasonability" of liabilities and his decision was to be final and conclusive vide notification dated September 24, 1977, Annexure-PB In view of the above decision the decision of the Secretary (Education) in its letter dated April 22, 1982, Annexure-E and August 10, 1982, Annexure R-3/12 was final and "conclusive". The decision taken by the Secretary was to arbitary and finally decide as to what were the reasonable liabilities of the college as on September 15, 1977. The relevant conditions regarding the taking over of the services of the College staff in service as on September i4, 1977 are reproduced hereunder : "The services of existing staff Teaching, clerical, and class IV servants employed on regular basis in the college who fulfil the requisite qualifications and age conditions as are applicable to the corresponding categories of posts in the Government Colleges may be taken over w.e.f. 15-9-1977 and their full particulars indicating their name, designation, date of birth, date of appointment in the present or past grades of pay present pay etc. duly certified be furnished to this Department The services of the employees appointed on ad hoc basis or who are under/over age will not be taken over by the Government. duly certified be furnished to this Department The services of the employees appointed on ad hoc basis or who are under/over age will not be taken over by the Government. The eligible employees taken over by the Government will be paid their pay and allowances at the admissible rates of pay and allowances to the corresponding posts in other Govt. Degree Colleges." 15. The Under Secretary (Education) vide his communication dated April 22, 1982 regarding taking over of the services of erstwhile S. D. B. College, Shimla (and their conditions of service) informed the Director of Education. Himachal Pradesh that the Government had decided that the entire period of service put in by the employees of erstwhile S. D. B. College, Shimla before the taking over of the institution by the Government, would be counted towards pension, gratuity and "other benefits". A further decision was also taken by the Government that "wasting cadre" would be constituted of the employees whose services have been taken over, and an equitable ratio worked out between the existing Government employees and the applicants. An equitable ratio was required to be worked out between the existing Government employees and those coming from the College for the purposes of promotion in the eligible categories. 16. An equitable ratio was required to be worked out between the existing Government employees and those coming from the College for the purposes of promotion in the eligible categories. 16. The Honble Supreme Court in Zabar Singh and others v. The State of Haryana and others, 1972 SLR 486, while considering the case of teachers of four Primary School teachers serving in "provincialised schools" i. e, schools run by Local Bodies but taken over by the State of Punjab with effect from October 1, 1957 held: "The petition challenges the validity of (a) the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, (b) the letter dated January 5, 1968 by Haryana Government to the Director of Public Instruction communicating its decision for revision of pay scales and prescribing two grades of teachers with effect from December 1, 1967, i. e. ordinary and selection grades, in the proportion of 8 s 15, (c) letters dated March 18, 1968, April 21, 1969 and August 5, 1969 granting with effect from December i, 1967 selection grade to the respondents, all in State cadre though actually serving in provincialised Schools in Gurgaon District, and (d) the joint seniority list of the provincialised teachers in Gurgaon District and the final list of teachers in Ambala Division in so far as respondents 6 to 96 are shown in the Ambala Division seniority list" "The impact of provincialisation was that all of a sudden, as from October 1, 1957, about twenty thousand and more teachers became Government servants. The very first problem arising from this impact was how to fix (a> inter seniority of teachers serving till then in the provincialised schools in different districts, and (b) inter seniority between the provincialised teachers vis-a-vis the Government Schools teachers". "On February 13, 1961, the Government published the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961 under Article 09 of the Constitution. These rules distinguished the provincialised teachers as teachers in provincialised cadre and the rest in the State cadre. Service for the purpose of thes« Rules meant the Punjab Educational (Provincialised Cadre) Class III Service, (R. 2). These rules were based on the principle of the Provincialised Cadre being a diminishing cadre. These rules distinguished the provincialised teachers as teachers in provincialised cadre and the rest in the State cadre. Service for the purpose of thes« Rules meant the Punjab Educational (Provincialised Cadre) Class III Service, (R. 2). These rules were based on the principle of the Provincialised Cadre being a diminishing cadre. The principle was that this cadre as time passed would gradually diminish in the number of posts ultimately becoming extinct within about 30 years, so that at the end of that period thero would remain only the State cadre in the field." The main problem in Zabar Singh case was : "The main problem was one of determining seniority of provincialised teachers vis-a-vis the existing Government school teachers and also among the provincialised teachers themselves serving in different schools in different districts appointed by different Local Bodies in those districts There were three alternatives before the Government, (a) counting of full service of the Local Bodies teachers for determination of joint seniority, (b) integration of the two services in a joint cadre on the basis of counting the service of the Local Bodies teachers from the date of provincialisation, and (c) continuing the two cadres separate as before." The Honble Supreme Court in Zabar Singhs case (supra) summed up the whole position in para 40 of the judgment at pages 500-501 in the following words: "The two services were from as early as 1937 and before, separate. At no stage, even after provinciaiisation was decided upon and the principles of its implementation were drawn up there was any integration of the two. In fact, after considering the alternatives which the Government had before it, it opted, on consideration of difficulties of integration, for the alternative of keeping the two separate. Since the State cadre had its own Rules of 1955, the Government decided in 1960 upon certain principles upon which Rules could be framed for the provincialised cadre. The real grievance of the provincialised teachers could be not that an integrated service was split into two by the Rules, but that the Rules did not combine the two. No principle under Article 14 or Article 16 is involved if such an integration was not brought about, for considering the past history of the two services and the differences existing between them, Government could not be required to fuse them into one upon any principle emanating from the two Articles. No principle under Article 14 or Article 16 is involved if such an integration was not brought about, for considering the past history of the two services and the differences existing between them, Government could not be required to fuse them into one upon any principle emanating from the two Articles. The decision to make the provincialised cadre a diminishing one, to implement which that cadre had to be closed at one end, aimed at seeing the provincialised cadre gradually vanish leaving approximately at the end of 30 years the State cadre alone in the field There is nothing in either Article 14 or Article 16 under which Government could be compelled to maintain that cadre in its original strength or make fresh appointments in that cadre. The logic of Government decision to make the provincialised cadre a diminishing one was that as the posts in that cadre gradually diminished, the number of selection posts also diminished. The proportion of 85 : 15, however, remained intact, and teachers in both the cadres according to their seniority continued to obtain their promotional chances. No injustice in this process could justifiably be claimed as when the posts in the provincialised cadre were larger in number, its members got a larger number of selection pests. The block system in Rule 3 was devised to implement the process of dimunition in a phased manner. Whether the ratio of H/13 resulted from it or not is not material, for once the principle of that cadre being a diminishing one is accepted as not violating the rule in Article 14 or 16 and so long as 15 percent remained untouched, the block system is no more than a method to further the process of dimunition The two services thus being separate both before and after provincialisation and there being no complaint about dissimilar or arbitrary treatment among members of the provincialised cadre, it is difficult to appreciate the grievance of discrimination or the denial of equal opportunity. The conclusion on the reasons here-above given is that no infringement of either of the two Articles is involved in this case." In Khazi Khurshld Ahmed v. Union of India by Home Secretary, New Delhi and others AIR 1969 Mysore 346, a Division Bench of Mysore High Court, while considering the case of induction of the employees of a private Trust Fund into Government service consequent to taking over its activities by the State Government held: "When a non-Governmental activity becomes on activity of the State by a process by which the posts become governmental posts and the occupants or holders of those posts also become Government servants, such transformation of those employees in Government service excludes the concept of a fresh employment" In case of Khazi Khurshid Ahmed (supra), the Mysore High Court was considering the letter written by the Asstt. Secretary of Hyderabad State and observed; "We do not accept the interpretation suggested to us on behalf of the petitioner by Mr. Jagannatha Shetty that the Assistant Secretarys letter on which he placed dependence means that, the antecedent service rendered in the Scheduled Castes Trust Fund has to be taken into consideration only for the fixation of pay and not in the context of the determination of seniority." 17. In our view, thus, the Secretary (Education) who was competent authority was Justified in issuing letters dated April 229 3982, Annexure-E and August 10, 1982, Annexure R-3/12, but the matter did not end here. The State Government took a somersault and took a contrary decision subsequently as contained in secret letter dated May 16, 1983 by Secretary (Education) to the Director of Education conveying that the decision taken earlier in the letter dated April 22, 1982 (Annexure-E), and the decision taken with regard to creation of "wasting cadre" in respect of employees taken over from the erstwhile S. D. B. College, Shimla (Government Girls College, Shimla-II) hart been reviewed by the Government and it had now been decided that no such "wasting cadre" for these employees would be cheated and such employees would be treated as fresh entrants and placed at the bottom of old Government employees in their respective cadre for the purposes of seniority. It was also conveyed that this decision was taken keeping in view the normal practice followed heretofore and to maintain uniformity in the policy pertaining to taking over of privately run schools/ Colleges. It was also conveyed that this decision was taken keeping in view the normal practice followed heretofore and to maintain uniformity in the policy pertaining to taking over of privately run schools/ Colleges. The stand taken by the State is that in the adjoining States of Punjab and Haryana the normal practice for taking over the privately panaged Colleges (where they are treated as afresh and no "wasting cadre" is created) was adhered to In the Punjab, when the schools run by Municipal and District Boards were taken over by the Punjab Government with effect from October 1, 1957, a separate diminishing cadre (Wasting Cadre) o£ the staff taken over was created which was known as provincialised cadre. This decision of the Punjab Government was challenged and the matter went right upto the Supreme Court. A Constitution Bench in (1963) Supp. 2 SCR 169 upheld this decision. However, later on, inspite of the decision of the Supreme Court being in its favour, the Punjab Government integrated the two cadres. The State of Haryana, however, did not do so and the matter was again taken up to the Supreme Court where it was held by a Constitution Bench consisting of seven judges in Zabar Singhs case (supra), that the Government decision to have two separate cadres did not infringe Articles 14 and 16 of the Constitution of India. It may also be noted that after the taking over of the S. D. B. College the posts held by the applicants in that College are to be regarded as Government posts for all purposes and they are to be treated as having joined Government service on the dates when they initially joined the College. Their integration in the Himachal Government service is to be on the basis of their length of service in the equivalent posts The impugned decision communicated by the Secretary (Education! Their integration in the Himachal Government service is to be on the basis of their length of service in the equivalent posts The impugned decision communicated by the Secretary (Education! to the Director of Education vide secret order dated May 16, 1983, Annexure-G reads as under : "In continuation of this departments letter of even number dated the 22nd April, 1982 on the above noted subject, I am directed to say that the decision taken earlier at (iv) by the Government with regard to the creation of wasting cadre in respect of the employees taken over from the erstwhile S D B. College, Shimla (Government Girls College, Shimla-II) has been reviewed by the Government and it has now been decided that no such Wasting Cadre for these employees would be created and such employees would be treated as fresh entrants and placed at the bottom of old Government employees in their respective cadre for the purposes of seniority. This decision has been taken keeping in view the normal practice followed heretofore and to maintain uniformity in the policy pertaining to take over of privately run Schools/Colleges. 2. The above decision of the Government may, therefore, please be implemented immediately. The receipt of this letter may please, be acknowledge." Earlier, the Government had decided to constitute a Wasting Cadre of the employees whose services were taken over and an equitable ratio worked out between the existing Government employees and those coming from the College for the purpose of promotion in the eligible categories. This was quite in consonance with the law laid down in Zabar Singhs case (supra) Now the Government reviewed its earlier decision and decided afresh that no such wasting cadre for these employees would be created and these employees will be treated as fresh entrants and placed at the bottom of the old Government employees in their respective cadre for the purposes of seniority The applicants have placed on record a list of S. D B. College staff taken over by the Government vide Annexure-D wherein the date of birth, joining the S D. B. College, and other remarks have been incorporated. The list is reproduced as under : "List of S. D. B. College statff taken over by the Government". S. No Name Date of birth Joining S D. B. College Remarks 1. Dr. V. P. Khanna 6.4.22 13.10.49 Retired on 30.11.78 2. The list is reproduced as under : "List of S. D. B. College statff taken over by the Government". S. No Name Date of birth Joining S D. B. College Remarks 1. Dr. V. P. Khanna 6.4.22 13.10.49 Retired on 30.11.78 2. M. L. Sharma 1.6.30 3.3.55 3. J. M. Mahajan 20.8.35 11.7.57 4. Mrs. Shanta Chauhan 25.2.36 21.3.59 5. Santosh Kaushal 21.9.39 13.7.66 6. P. N. Pahwa 1.4.60 11.9.66 7. Surjeet Singh 23.6.45 26.7.67 8. S. K. Jain 20.8.44 7.3.67 9. Usha Bande 25.7.43 31.8.67 10. R. C. Jairath 1.1.35 24.7.68 11. Shyam Sunder 10.12.42 12.8.68 12. M. K. Sharma 24.5.40 9.9.68 13. P. K. Singla 12.10.45 11.10.68 14. S. L. Khanna 13.11.46 14.7.69 15. Shanta Bhasker 23.9.36 27.10.69 16. Avtar Singh 14.4.39 187.73 17. Sunil K. Sharma 1.5.45 23.7.73 18. J. D. Bali 5.9.35 31.7.73 19. R. K. Goel 4.9.45 18.7.73 20. Jagdish Chander 6.11.41 1.3.75 21. S. C. Bhatia 1.2.48 23.7.73 22. J. M. L. Bhatoagar 22.11.20 6.10.49 retired 23. Satish Chander 23.2 36 17.7.61 24. I. M. Sharma 31.7.42 18.1065 25. Usha Baljeet Singh 6.2 22 11.7.72 retired 18. Out of aforesaid employees Dr. V. P. Khanna, S/Shri M. L. Sharma, J M L Bhatnagar and Usha Baljeet Singh have retired on attaining the age of superannuation We were told at the bar that the Government servants who are already in Government service are promoted against vacant posts but the applicants were not even considered for promotion though eligible for such promotions. The applicants had also filed an application, CMP No. 1822/83 on September 5, l983 in the High Court and the Division Bench of Himachal Pradesh High Court passed the orders that ill promotions made hereinafter will be subject to the decision in the writ petition. The applicants are not considered for promotion which means that they will retire from service without having the benefit of being promoted to the next higher post as and when the same falls vacant in the department because they are being treated as fresh entrants in the Government service. The applicants are not considered for promotion which means that they will retire from service without having the benefit of being promoted to the next higher post as and when the same falls vacant in the department because they are being treated as fresh entrants in the Government service. At the time of taking over of the Rana Padam Chandra Sanatan Dharam Bhargava College by the Education Department of State Government with effect from September 15, 1977, the services of the existing staff including the applicants, who fulfil the requisite qualifications and age conditions, as were applicable to the existing categories of posts in the Government College, were also taken over with effect from September 15, 1977 and they were to be paid their pay and allowances at the admissible rates of pay and allowances to the corresponding posts in other Government Degree Colleges. The entire past service of the applicants rendered in the erstwhile S D B College, Shimla was to be counted towards pension, gratuity and all those benefits which a Government servant gets by way of rendering service under the Himachal Pradesh Government. In view of above, according to us the applicants and other Government employees who are on Government service with effect from September 15, 1977 when the institution was taken over, are similarly situated and no class distinctions could be made in selecting the best out of them in making promotions. In re; State of Mysore v. Krishna Murthy and others, AIR 1973 SC 1146 and U50 it has been held: "If, on the facts of a particular case, the classes to be considered are really different, inequality of opportunity in promotional chances may be justifiable. On the contrary, if the fact so f a particular case disclose no such rational distinction between members of what is found to be really a single class no class distinctions can be made in selecting the best. Articles 14 and 16 (1) of the Constitution must be held to be violated when members of one class are not even considered for promotion. The case before us falls, in our opinion, in the letter type of cases where the difference in promotional opportunities of those who were wrongly divided into two classes for this purpose only could not be justified on any rational grounds." 19. The case before us falls, in our opinion, in the letter type of cases where the difference in promotional opportunities of those who were wrongly divided into two classes for this purpose only could not be justified on any rational grounds." 19. The applicants and those already in service of Government form one category and thus could not be treated differently when the question of their promotion arises. The State in para 11 of their reply-affidavit, dated September 17, 19&1 have averred that the order, dated April 22, 1982 was issued under mistaken belief. The respondent No. 3 has placed on record a letter, dated August 10, 1992, Annexure R-3/12 whereby the words "other benefits" mentioned in the letter, dated April 22, 19d2 were clarified as those benefits which a Government servant gets by way of rendering service under the Himachal Pradesh Government. If the order, dated April 22, 1982 was issued under mistaken belief then it can be said that the order, dated August 10, 1983, Annexure R-3/12 where the words "other benefits" were clarified was also deemed to have been issued under mistaken holier Shri H. K Paul, learned Assistant Advocate General stressed the impact of the order, dated April 22, 1982 whereby "wasting cadre" was created at the time of taking decision, in order to maintain uniformity in the policy pertaining to taking over of the privately run schools/colleges. Shri Paul further argued that the Government had laid down certain conditions and one of the condition is that the members of the staff who are taken in the Government service shall be treated as new entrants. Reliance has been on an Annexure-RA which is undated and reads as follows : "Conditions for taking over privately run classes as laid down by Government vide their letter No. 22-2/72-Edu-B, dated 30-6-1973. (i) That the privately run institutions/classes are recognised by the Department, (ii) That the management hands over all assets, (iii) That no liability is to be accepted by Government, (iv) That only qualified staff will be taken over in accordance with the posts which are sanctioned by Government in the prescribed scales, (v) That no superannuated untrained or qualified staff will be taken over, (vi) That only such staff will be considered for taking over as was in position in the school at least one year prior to the date of taking over of school/classes by Government. (vii) That after the school is taken over it will be known as Government Primary/Middle/High School as the case may be, (viii) The members of the staff who are taken in Government service shall be treated as new entrants for all purposes, (ix) That in the case of staff in the purview of Public Service Commission, their cases with full particulars will be referred to the Commission for their formal concurrence and the incumbents may not be required to appear before the Commission for personal interview." 20. We find from the record that while Rana Padam Chandra Sanatan Dharam Bhargava College was taken over, in the public interest vide notification, dated September 24, 1977 all the reasonable liabilities as on September 15, 1977 of S. D. B College were to be borne by the Himachal Pradesh Government, Education Department. The State in para 7 of the reply-affidavit, dated September 17, 1983 has averred that the Government decided to take over the institution with effect from September 15, 1977 on the terms and conditions envisaged in the notification, dated September 24, 1977. The conditions contained in the notification dated September 24, 1977 Annexure-B are in conflict with condition No 3 in Annexure-RA which reads "that no liabilities is to be accepted by the Government". In Clause III of this letter, Annexure-RA it is mentioned that no liabilities is to be accepted by the Government, in case of taking over of the Rana Padam Chandra Sanatan Dharam Bhargava College. There is a dear stipulation in notification, dated September 24, 1977, Annexure-B that all reasonable liabilities as on September 15, 1977 of the College will be borne by the Education Department. 21. The Secretary (Education) was the final authority to adjudicate upon the rights of the applicants in relation to their absorption in the Government service The Secretary (Education) as a matter of fact finally decided the matters vide letter, dated April 22, 1982 and August 10, 19k2. The decisions finally adjudicated upon by the Secretary (Education) were to be implemented but the Secretary (Education) instead reviewed the matter and turned topsy turvy his own earlier decision, took a somersault and reviewed the order by his decision, dated May 16, 1983, without giving the applicants an opportunity of being heard. The decisions finally adjudicated upon by the Secretary (Education) were to be implemented but the Secretary (Education) instead reviewed the matter and turned topsy turvy his own earlier decision, took a somersault and reviewed the order by his decision, dated May 16, 1983, without giving the applicants an opportunity of being heard. The decision contained in above letter, dated May 16, 1983 was penal in nature and had adverse consequences upon the rights of the applicants and as such principles of natural justice required that the Secretary (Education) ought to have given opportunity to the applicants before their rights were once again adjudicated upon. In re : Lata Shri Bhagwan and another v. Ram Chand and another, AIR 1965 SC 1767 it has been held: "Power to determine questions affecting the rights of citizens, would impose the limitation that the power should be exercised in conformity with the principles of natural justice. Whether or not such an authority or body is a tribunal, depends upon the nature of the power conferred on it, the nature of the rights of citizens, the decision of which falls within the jurisdiction of the said authority or body, and other relevant circumstances.” In Union of India and another v. P. K. Roy and others AIR 1968 SC 850 following the decision in Shri Bhagwans case (supra) it has been observed. "The extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula. "The extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case." In K. L. Tripathi v. State Bank of India and others, AIR 1984 SC 273, it has been held : "It is true that all actions against a party which involved penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has to be judged, in the light of facts and circumstances of each particular case, The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. The rules of natural justice are flexible and cannot be put on any rigid formula." 22. In view of above, we find that the impugned order, dated May 16, 1983 deserves to be set aside as being viola rive of the principles of natural justice and we hereby set aside the same. We have already observed that the decision as contained in letters, dated April 22, 1982 and August !0, 1982 are just and legal whereas the Secretary (Education) while reviewing the said decisions and deciding afresh vide letter, dated May 16, 1983, acted in an unjust and illegal manner, 23. Shri Deepak Gupta, learned Counsel for the private respondents vehemently argued that there was break in the services of the applicants for the period from September 12, 1977 when the College was wound up to September 15, 1977 when their services were taken over with effect from September 15, 1977, and they were no longer in service and their services were not properly taken over. There is an initial flow in the submissions made by the learned Counsel for the private respondents. It is evident from the record that the institution was closed with effect from September 12, 1977. By closure of an institution the services of the employees would not automatically come to an end. There is an initial flow in the submissions made by the learned Counsel for the private respondents. It is evident from the record that the institution was closed with effect from September 12, 1977. By closure of an institution the services of the employees would not automatically come to an end. We are fortified in this regard by the notification, dated September 24, 1977 whereby Rana Padam Chandra Sanatan Dharam Bhargava College, was taken over by the Education Department of the State Government with effect from September 15, 1977. It has been clearly mentioned in this notification that the services of the existing staff who fulfil the requisite qualifications etc. as are applicable to the corresponding categories of posts in the Government Colleges be taken over from September 15, 1977 In view of above, by no stretch of imagination it can be said that the applicants were no longer in service on September 15, 1977 or there was any break in their service. 24. In view of above, we allow this application and quash the impugned order, dated May 16, 1983 and direct the respondents 1 and 2 to entertain the applicants in the Government service in their respective cadres keeping in view the total length of service of the applicants. No order as to costs Application allowed.