Col. A. S. Iyer & Ors Vs. V.
Balasubramanyam & Ors [1979] INSC 219 (24 October 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
CHANDRACHUD, Y.V. ((CJ) UNTWALIA, N.L.
SHINGAL, P.N.
KOSHAL, A.D.
CITATION: 1980 AIR 452 1980 SCR (1)1036 1980
SCC (1) 634
CITATOR INFO:
E 1987 SC2359 (6,16) D 1989 SC1624 (11)
ACT:
Survey of India (Recruitment from Corps of
Engineer Officers) Rules 1950 -Service consisted of Army and Civilian
Officers-Seniority and promotional opportunities for Army Officers different
from Civilian Officers-Rule if violative of Articles 14 and 16 of the
Constitution.
HEADNOTE:
Rule 5 of the Survey of India (Recruitment
from Corps of Engineer Officers) Rules 1950 provided that on first appointment
an officer would be in the grade of Deputy Superintending Surveyor in Class I
Service of the Survey of India and that seniority of military officers inter se
will remain the same as in the Army. Sub-rule 5 of this rule provided that
among those allotted to the same year, military officers would rank senior to
directly recruited civilian officers. Rule 11 of the Rules which dealt with the
method of recruitment to Survey of India Class I Service provided that all
recruitments to the Cadre would be 50% from the Corps of Engineer Officers, 25%
from promoted Class II civilian officers and 25% from direct recruits by
competitive examination through the Union Public Service Commission. These
Rules were amended in 1960 and 1970 but the provision relating to military
engineers remained the same as in the 1950 Rules.
In a writ petition filed in the High Court,
the civilian officers of the service consisting of direct recruits and Class II
promotees impugned the validity of the 1950 Rules on the ground that seniority
prescriptions were based on irrelevant criteria and that discrimination was
writ large in the impugned provisions.
The High Court, accepting the contentions of
the civilian officers, struck down certain rules of the 1950 Rules as violative
of Articles 14 and 16 of the Constitution. The High Court did not accept the
contention of the Government that the nature and character of the work done by
the Survey of India was essentially connected with defence purposes because the
work done by the Department for the Army was done along with several other
services carried on by it, namely, with the development projects, preparation
of maps for various Ministries of the Central and State Governments, public
sector undertakings and other agencies;
assuming that the work was related to defence
purposes, civilian officers were employed by the Department to do the same work
and during emergencies, civilian officers were called upon to serve in border
areas. The Department had civilian budget. For these reasons the High Court
came to the conclusion that there was no ground to justify classification made
under the impugned Rules between the Army officers and civilian officers
because the recruits from the army could not be said to be better qualified
than the civilian direct recruits and that there was no justification for
adopting any discrimination in favour of the Army officers. The impugned rules
were struck down on the ground that there was no reasonable nexus with the
object sought to be achieved.
1037 In appeal to this Court it was contended
on behalf of the State that the constitutional mandate of equal treatment
applies only to equals and in the case of recruitment to the service the
sources of recruitment of Army personnel and civilian entrants are different
and remain different;
weightage is given only at the time of entry
and thereafter officers are treated as equals for all purposes of promotion and
the advantage gained by the militarymen is a consequence of the initial
advantage of the commissioned service for the purposes of seniority. Assuming
that there is a unified cadre, since there exists a rational relation to the
object sought to be achieved Article 16 cannot be said to have been violated.
Allowing the appeals,
HELD: The 1950 Rules are valid in that they
have a prominent feature which is basic namely the military nominees do not
shed their army service and merge into a new service to undergo partial
absorption but preserve a substantial separateness. [1054 B-C]
1. Without the military engineers the Survey
of India would become a functional failure in discharging its paramount duties
in times of war and peace. The work done by the army wing of the Survey of
India is far too important to be played with and such work is best done by that
wing. The military recruits are commissioned officers with three to six years
of service with certain salary scales and period of service. Giving due weight
to these factors rule 5 lays down the criteria for seniority as between the
military sector and the civilian sector. For the very efficiency of the Survey
of India a substantial Army element is essential.
Army engineers are invited into this service
not because this department historically belonged to the defence forces but
because in hours of crises it cannot minister to one of the major objectives of
its creation if it does not have engineers with military training, courage and
so on. It is fairly intelligible and basically equitable to allow military
engineers credit for commissioned service and protection of already earned
higher salaries. [1059 E-H 1060 A-B]
2. To attract engineers into the Survey of
India by assuring them all that they were enjoying in their existing service,
namely, credit for the years under commission in reckoning seniority and
fitment of their salary and other benefits is not discrimination or favoured
treatment but justice to those whom, of necessity, the service wants.
[1060 C-D]
3. Once it is agreed that at the entrance
point the Army engineers are justly given credit for the commissioned service
which they carry with them there is no further discrimination while in service
on the score that they come from the Corps of Engineer Officers. All that
happens thereafter is merely the manifestation of initial advantage of credit
for commissioned service. [1061 D-E] Mohammad Shujat Ali & Ors. v. Union of
India & Ors.
[1975] 1 SCR 449 at 481; Ram Lal Wadwa &
Anr. v. The State of Haryana & Ors. [1973] 1 SCR 608 at 635; State of
Punjab v. Joginder Singh [1963] Supp. 2 SCR 169 at 189; S. G. Jaisinghani v.
Union of India & Ors. [1967] 2 SCR 703; Ganga Ram & Ors. v. Union of
India & Ors. [1970] 3 SCR 481 at 488 referred to.
4. The 1950 Rules bring out certain incidents
of service boldly. Notwithstanding the fact that they entered the Survey of
India service. the Army 1038 officers continue to wear Army uniforms, they get
notional promotions in the Army provided they pass the requisite Army tests
when they earn corresponding promotions in the Survey of India. They can be
recalled by the Army and they continue to be under the control of the
Commander-in-Chief. When inefficiency is noticed they can be called back to the
Army for being dealt with appropriately. A conspectus of the facts and
circumstances governing the service makes it clear that there is no integration
of the Army personnel into the Survey Service. Without such complete
integration Articles 14 and 16 cannot be invoked. [1064 E-G, 1065 A-B]
5. Whether 25% or 50% induction from military
engineers is enough is a matter of policy for which the judiciary has no genius
and the administration has a reach of materials and range of expertise, so that
Courts must keep out except where rational criteria, or irrelevant factors mala
fide motives or gross folly enter the verdict. In the instant case reservation
of 50% of Class I service for Army Officers cannot be called irrational,
impertinent or improvident.
[1065 F-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 1745- 1755 of 1975.
From the Judgment and Order dated 5-9-1975 of
the Andhra Pradesh High Court in Writ Petition No. 1269/75 L. N. Sinha,
Attorney General for India, E. C. Agarwala and Girish Chandra for the
Appellants (In CA 1755/75).
P.P. Rao, M.S. Ganesh, A.K. Ganguli and T.V.
S. Narasimhachari for the Appellants in Ca 1754/75.
P. Govindan Nair, A. K. Sen, Bishambar Lal,
Miss Munisha Gupta and Mrs. Baby Krishnan for RR 1-2 in CA 1754/75 and CA
1755/75.
The Judgment of the Court was delivered by
KRISHNA IYER, J. These two sister appeals have gained access to this Court by
certificate under Article 133 and project a 'service dispute' between the Army
and civilian wings (both engineers) of the Survey of India. The constitutional
missiles used, with success, in the encounter in the High Court by the
'civilians' to shoot down the 'military men's' preferential claims under the
relevant service rules, are Articles 14 and 16. And here, in this Court, the
Army Wing is fighting back to repulse the civilian wing by defusing the
war-head of these two fundamental rights. Military imagery vivifies the
litigative havoc when sectors of our public services go to battle against each
other, though there is so much else to wage war against in the service of the
people.
A narration of facts falling within a short
compass will unfold the real issue, revolving round the salary, seniority and
de facto promo- 1039 tional disparity inter se, which has sparked off the
forensic war. The Union of India, one of the appellants, supports the stand of
the military sector of the Survey Service, if we may so designate it. A survey
of the story of this conflict suggests the sombre thought that unending
litigation, affecting the public services with inevitable impact on morale and
efficiency, is becoming an epidemic in courts even among strategic cadres and
sensitive sectors-a matter almost for consternation which surely must kindle a
search for constitutional alternatives for resolution of service questions
without large numbers of civil servants being locked in long-drawn-out legal
struggles. Does the experience of 30 years under the Constitution indicate
that, save where fundamental constitutional issues arise, Whitley councils,
Service Tribunals and other specialised adjudicatory agencies, with the
imprimatur of finality, are a more pragmatic mechanism of Service Justice ? The
factual setting, sufficient to unravel the constitutional contention, may now
be delineated. Both the appeals against the judgment of the High Court of
Andhra Pradesh cover the same subject matter, although one of them is by the
Central Government and the other by the members of the Survey of India from
among the Defence personnel, and both have been resisted on the same basis by
the civilian recruits to the Service. A common judgment will dispose of both
the cases but we must begin from the very beginning to get a hang of the
controversy.
The genesis of the Survey of India, its life
before birth, its genetic composition and hereditary characteristics, mould the
structural engineering of the Service and, therefore, have a bearing on the
issues debated before us both sides. While the High Court has, to some extent,
slurred over the chronicle, both sides have heavily stressed before us the saga
of the Survey of India, each to lend strength to its point of view. So, a peep
into the bicentennial biography of the Survey of India is a necessary exercise
as a starting point. To blink at history is to lose the living link with the
Past and to stumble in the Present.
Yet strangely, none such, i.e. history of the
Service to serve as a lucid background is given in their statement by either
party, save incidentally. Unfortunately, the fine and fruitful art of
presenting a luscent written brief is still in the long Indian Year of the
Infant and we have to cull out and piece together materials which should have
been set out as a scenario of meaningful development. If the High Court has
gone wrong the blame must fall in part on the Central Government which could
and should have projected the story of the Survey of India, its functional
complexion and recruitment rationale 1040 instead of leaving judges to run
around the corridors of padded paper books or launch on speculative surmises.
The State, the largest and resourceful and most affected public litigant,
leaves much to be desired in the written presentation of its cases. The other
parties fare no better, though. And instalments of additional information
during the progress of the hearing has had to make-do for a comprehensive
unfoldment. Better late than never ! The story of the Survey of India has been
narrated in its brief autobiography, 'Our Department', produced on the eve of
its bicentennial in 1967. This department was born during the days of Lord
Clive under happy Army stars, had a military upbringing and, in its brilliant
career, achieved lustorous exploits. Starting from an accident of history-the
request of a historian, Robert Orme, to an East India Company administrator,
Lord Clive, for a map of Bengal-the Survey of India sprang to life in embryonic
form when Major Rennel was appointed to execute this survey and, thereafter,
was cradled by the Army but spread out to become a dynamic department and
development instrument in the decades ahead.
In war and in peace, in building the nation
and defending its security, in 'civilian' ventures and military operations the
Survey of India has become a National Service in the role of adviser on survey
data and kindred adventures.
Indeed, almost all ministries of the Central
Government and many States have used the services of the Survey of India during
the several Five-Year Plans. Look before you leap' becomes in development
terms, survey before you start, and so it is that in 1967 this great department
of strategic importance is able to write its story and conclude:
"25. In short, in its ever increasing
sphere of vast, diverse and widely scattered work, Survey of India has built up
a unique reputation both within the country and outside as a sound,
distinguished, and great Survey Organisation of the world, progressively
marching forward. expanding, adapting and modernising itself and continuing its
contributions to science, security and development.
The personnel of Survey of India can
legitimately take pride in the fact that they belong to this ancient and great
organisation, to whom a noble, rich and priceless heritage has been
bequeathed-inspiring and beckoning them to greater heights of achievement,
honour and glory." When the history of Free India comes to be written the
proud contribution of the Survey of India may be printed in bold and bright
1041 characters because almost every Department of governmental activity with
welfare potential has the imprint of the Survey of India at some stage or the
other, as disclosed in the various materials which have come into our hands,
through counsel, in the course of their submissions. The flattering fact that
the tallest peak in the World, Mount Everest, was named after the eminent
Surveyor General Sir George Everest shows that even in the geological discovery
of India, this Department has had a hand. The different dimensions and
directions in which the Survey of India has served the nation and science as a
whole are perhaps a fall- out of its adventurous alliance with military
activity.
During British days, it was not an accident
that the Survey of India was under the Army. It was an inalienable companion of
conquest and consolidation of defence and development-a versatile genius which
was put to greater good in the era of Freedom and After.
"12. It is perhaps not so well known
that the work of the Survey of India has special significance in matters of
country's defence. The Survey of India has to organise surveys and work well
ahead to provide maps at the right time and of the right places where campaigns
might be fought in war.
The Chinese threat along the northern borders
of the country since 1959 necessitated diverting immediately a very large
potential of the Department to carry out the work of special topographical
surveys for defence purposes in one of the most inhospitable and rugged
terrains of the world-an assignment which cost the Department many precious
lives and many years of hard work.
The bulk of military survey and mapping
requirements are met by Survey of India. Though the military survey service
exists, it is small and has insufficient personnel, who carry out limited
technical work and such staff duties as army requires in peace time.
13. There have, thus, been many occasions for
the Survey of India to be commended for its work for defence and development in
war and peace, and for providing the basic knowledge of the land for all its
users." 1042 The Surveyor General, for reasons of functional importance,
is also the Director of Military Survey.
Topographical Mapping states:
"When corrections and additions to maps
of military importance are suggested by the Director, Military Survey, they
should, as a general rule, be accepted by the Survey of India." It is
necessary to notice the role of the Survey Department under the Director of
Military Survey who is also the Surveyor General thus bringing out the
interlacing of activity. Obviously, there is not merely sensitivity and
confidentiality but also a high degree of skill which cannot be relaxed and an
instant sense of discipline, which cannot be liberalised, in view of the fact
that military operations of national significance depend, in part, on the
Survey of India and its service. While it is fair to emphasise that
considerable peace-time developmental work is rendered by this Department, its
adventurous spirit of climbing mountains, penetrating wilderness and entering
into forbidden regions cannot be minimised. Lt. Col. Sandes writing on 'The
Military Engineer in India' states:
"History has shown that there is
something in the training which the Survey of India, imparts to its officers
which makes them peculiarly valuable in war.
Their work develops not only self-reliance
and initiative, but a sense of responsibility. Everything centres on the
example set by the leader of an isolated party. As a rule, he is the only
European in the small country. He must have powers of organisation and
observation: courage, determination and endurance. In the ordinary course, he
must be precise to the point of pedantry, never satisfied with unchecked work
and abhorring the smallest error; yet at other times he must fling theory and
practice to the winds to improvise means of rapid reconnaissance when danger
threatens." The Military history which has moulded the character of this
Department has relevance and so we quote again Lt. Col.
Sandes:
"As the war spread, the survey officers
from India were scattered over the face of the earth; some on military duty
with engineer units other flash-spotting, sound-ranging and triangulating in
France and Belgium:
and others again reconnoitering and surveying
in any or all of three continents. They worked in Salonika, North and South
Russia, Italy Gallipoli, East Africa, Mesopotamia, Egypt, Syria, Persia, 1043
and on the shores of the Caspian. One commanded a brigade in North Russia,
another led a Persian army.
Ten officers of the Survey of India were
killed in Action, or died on service, during the Great War, and thirteen were
wounded. Many casualties occurred in the lower ranks. Such were the
contributions of the Department towards victory in the greatest struggle of all
time. They form a fitting climax to its record in the frontier wars of
India." If we may sketch a few lines to indicate the trait of the Corps of
Indian Engineers with a view to illumine the points canvassed before us, we
have to refer to the book by Major Verma and Major Anand. The authors state:
"Before the war, Military Survey as such
did not exist; though for generations past, Survey of India had provided
detachments for practically every military campaign or expedition. But these
parties were considered to be civilian, including their military
officers-in-command, and they were only attached to the Army for supplies and
transport. Even in the First World War (1914-18), Survey of India detachments
went out and worked in Macedonia, Mesopotamia and Persia.
But at no time before 1940 did India have any
military units like the Field Survey Companies or Battalions.
Between the wars, survey and mapping for the
Army was done by the Survey of India, which except for the Artillery Survey
Section, Royal Artillery, was the sole military survey agency. It had a
semi-military tradition, the Surveyor General held the rank of a Brigadier and
his principal officers were Royal Engineers with specialist survey
qualifications. There was no survey representation at GHQ." Again
"For the Department, the military responsibilities in 1938-39 were:- (a)
Liaison with the Armed Forces on survey and mapping.
(b) Provision of maps required by the Defence
Services, covering India, Burma, Afghanistan and Iran.
1044 (c) In the event of a war, to provide
and equip firstly two Fd Survey Companies and two Survey HQs for service in the
NWFP, and secondly one Survey Report (admn.) (d) To carry out annually a small
amount of training in military survey." In many Circles, Directors of the
Survey of India have been Office Advisers to the 'Commander-in-Chief" and
the work done by this Department has had in many cases military meaning. This
was reflected in the past in the officer situation and personnel complexion.
Class I Officers were all military men while Class II men were civilian
graduates.
Brig. Wheeler, writing of the officer
situation in British India, summed up thus:
"Perhaps the greatest single factor
affecting military organisation was that whereas there were nearly 60 military
officers in 1925, there were only 30 in 1939; to train a civilian to be sound
and efficient soldier takes a considerable time, to train a non- survey soldier
to become an efficient surveyor, much longer, very much longer." The
military commitments of the Survey of India in the World War II made it a
strategic instrument invisible to the lay but invaluable to the esoteric.
We have pressed this part of the career of
the Survey of India to knock out the impression that its military component is
purely a concession to the historical staffing pattern and the lack of avenues
for promotion to Army engineers. It is an in-built necessity of the department
in national interest. We agree with counsel for the respondents, Sri Govindan
Nair, that the early history of the Survey of India as a child of the Army
cannot become an obsession to distort or debunk the enormity of its purely
developmental undertakings. It is a Civil Service which serves in national
reconstruction all the time, but, at the call of the country, is ready to
switch to Defence, risk anywhere and do surveys as commanded. We must set our
sights right about the civil and military range of the versatile department and
not swallow the brash version that it is all 'brass'. Its bearing on the
conclusions in the case is that the court should not blindly accept all the
preferences to the Army recruits as against their civilian brethren under the
impression that everything in the Survey of India is Defence operation and
civilian must therefore accept the crumbs as shudras of the Service. No! Most
of its work is peace-time activity of a fundamental, though invi- 1045 sible
character to promote development in its multitude and magnitude and, indeed, in
its panoramic magnificence.
But we cannot get away from the historic
fact-not merely the fact of history-that the Survey of India is, first and
foremost, an instrument of military strategy for the defence of the country
although its talents are not allowed to grow into thistles but to serve
wherever needed.
If competing demands come, it opts for and is
therefore geared to Defence goals. That is its first charge and, in that sense,
it is Defence-oriented, has an Army bias and cannot afford to ignore the
indispensability of a military component. The history of a nation is never
written by the military but its history ceases to be, if its reserves of
military manpower cannot be mobilised for active duty at an instant's notice.
The Survey of India, with its signal service to the planned progress of the
people, has a tryst with national security and an everyday commitment to the
country's defence requirements. This may look over-drawn but embeds a core of
truth cardinal to the issue in the case-why weightage to the 'uniformed'
recruits as against their counterparts in 'mufti'? Let us thus place accent on
what is essential but not miss what exists as a reality. From this angle, a
legal raconteur may re-tell the story slightly differently.
The Army in British India had, as one of its
strategic operations, to undertake the survey of the interior and frontier of
the country and had, therefore, under it a department wholly manned by military
personnel. After Independence and the enactment of the Constitution, this
military limb separated from the Defence Forces, was constituted into a Civil
Service with the Surveyor General at the apex and a hierarchy below of triple
components together making up the Class I service. The Service, in its new
dimensions, was manned by civilian and military personnel due to functional
imperatives. The entry into the service was at the point of Deputy
Superintending Surveyors, save for a category of promotees from Class II, with
provision for spiralling up to higher positions. The posts were filled
according to Rules framed under the proviso to Art. 309 on a 50: 50 basis, as
between Army engineering personnel dovetailed into the Survey of India and
civilians recruited or promoted or otherwise appointed.
We miss the service perspective if we do not
take a functional glimpse at the operational scale and range of the Survey of
India. What was a wholly military department previously reincarnated as the
Survey of India, with a civilian inter-mix, retained its meta-military
personality, functionally and personnel-wise. In budgetary classifica- 1046
tion and administrative charge, the Survey of India was a member of the Agriculture
Ministry, of the Education Ministry and currently, perhaps, correctly belongs
to the Ministry of Science and Technology which is pervasive enough to embrace
Defence and Development. It is not right to regard this Service as a
'uniformed' service, for it is ambidextrous. But that is not really decisive of
the issue before us. What we have to understand is not so much its genetic
transmigration as such or pedigree table but the nature of the service the
Survey of India is expected to render, its basic functional characteristics,
operational capabilities, futuristic uses and, consequentially, its meaningful
personnel policy and the conditions of service dictated by the compelling
necessities of these demands on the Service. In brief, the emphasis is not on the
administrative pigeonhole in which the Survey is placed for secretariat or
budgetary purposes, nor on its lineage, nor, indeed on the label 'civil' or
'Defence' but on the nature of its duties and the relevant pattern of manpower
and, most importantly, the concrete conditions of recruitment and principal
career requirements while in service, having regard to the strategic essence of
the goals the Service must sub-serve. So viewed, the Survey of India is army
oriented. Not merely because of heredity but markedly because of the nation's
potential demands and perennial expectations from this specialised Service, not
merely in emergency but to be always on the qui vive. We gather from the
affidavit of the Senior Director, on behalf of the Union of India, that the
army component is an inalienable requirement of the Survey of India if it is to
fulfil its role. He swears:
"Some of the reasons for corps of
Engineers being one of the sources of recruitment are as follows:
(a) Survey of India may need mobilisation in
the event of any emergency of war.
(b) The Corps of Engineer Officers in Survey
of India form the nucleus around which mobilisation can take place quickly.
(c) The small element in the Army cannot
cater for training and experience, and hence Corps of Engineer Officers are
kept in Survey of India which provides the ideal ground for training and
experience of these officers during peace so as to keep them fully competent
technically in the event of a war or emergency.
In order to maintain an adequate balance
between military and civilian officers, and to attract the higher type of Corps
of Engineer Officers to the Survey of India, 50% of 1047 the total number of
posts in the Class I Cadre were earmarked for the Corps of Engineer
Officers." What, then, is the raison d' etre of this department ? War
means advance into or withdrawal from territory.
Operations involve identification of
topography, climatology, environmentology, location of defence positions,
marking of marching and retreating positions and artillery targets and
paratroop landing positions, keeping secret strategic centres and sealing them
off as out of bounds-and a host of other surveys invaluably informational and
immediately available for national defence. It is obvious that if this be the
functional relevance of the Survey of India, some divisions of it have to be
fighting fit, always on the alert, ready to rush to the risk zones and
technically capable of teaming with the ground forces in seasons of emergency
and occasions of external aggression, before and after. The Survey of India
must be geared to the goal of national security if it is to justify itself in a
large country of extensive mountain frontiers, border disputes, history of hot
war, interior defence lines and military routes. Of course, our imperial
masters could afford, at the expense of people's welfare, to keep such a
department as a section of the Armed Forces, idle for long stretches of time
but keeping their tools sharp for eventualities. Free India could not.
Naturally, the country's leaders, entrusted with gubernatorial responsibilities
in this behalf, hit upon a golden mean of forming a separate Survey of India,
no more a wing of Army.
The object was understandable. A permanent
yet considerable number of technical personnel virtually idle during peace time
was a luxury. Nevertheless, an instrument was forged which preserved the
military mood of active duty but expanded and expended its sophisticated
expertise during years of peace on national needs of other Ministries or
States' requirements. It reflected the duo-dexterous roles and mosaic of
manpower in its recruitment policy. Unique functional imperatives demand unique
service anatomy as an administrative experiment in the Darwinian art of
survival of the fittest. We see nothing strange in this unorthodox composition,
although attempts to interpret the new scheme by familiar Service moulds may
mislead, as has happened in the High Court.
The Senior Director with reference to current
conditions, deposes as affiant of the Central Government:
"Reasons for seniority and pay
protection for the Corps of Engineer Officers are as follows:- (a) They suffer
due to lack of higher opportunities of promotion to Brig. Major General, Lt.
General 1048 and General by their volunteering for the Survey of India.
(b) They can utmost expect to get military
pension as a Colonel but not as Brig. and higher which are substantially
higher.
(c) They lose other perquisites like house
rent, concessional electricity and furniture facilities, concessional Form 'D'
facilities, and many other concessions.
Unless therefore, they are given protection
of seniority and pay in order to partly compensate their losses, no Corps of
Engineer Officer would ever volunteer for the Survey of India. These were the considerations
for the seniority and pay protection for Corps of Engineer Officers.
Even if, for argument's sake, it is admitted
that preferential treatment is given to Corps of Engineer Officers (which it is
not), it is done under the rules which have been framed based on the
differences between the various sources of recruitment, and the said
differences have a reasonable relation to the nature of the office to which
recruitment is made. Thus, the appointment, and terms and conditions of the
Corps of Engineer Officers can legitimately be substantiated on the basis of
valid classification." At this point we must eye at close quarters the
Survey of India (Recruitment from Corps of Engineer Offices) Rules, 1950.
Primarily, it relates to the recruitment from the Corps of Engineer Officers.
The relevant part of Rule 2 runs thus:
"2. Recruitment: A Corps of Engineer
Officer for appointment to the Survey of India should at the time of
appointment normally have not less than three and not more than six years commissioned
service, but this rule may be relaxed in exceptional cases. Corps of Engineer
Officers shall apply for appointment to the Survey of India to the Military
Secretary, through the Engineer-in-Chief, who will transmit the applications to
the Surveyor General. The Surveyor General will maintain a list of such
applicants, as, after making the due enquiries, he considers to be suitable for
appointment. When a military post falls vacant and the Military quota has not
been filled the Surveyor General shall nominate an Officer or Officers from the
above list." 1049 This Rule postulates a military quota which takes us
straight to Rule 11:
"11. Method of recruitment to Survey of
India Class I Service.
All future recruitment to the Survey of India
Class I Cadre will be as follows:
1. From Corps of Engineer Officers 50%
2. From promoted Class II Civilian Officers
25%
3. From direct recruits by competitive exami-
nation through the U.P.S.C. 25% The military recruits to Class I Service enter
the Deputy Superintending Surveyor's (hereinafter referred to as D.S.S.)
position in the Service from where they rise on promotion as Superintending
Surveyors (hereafter referred to as SS) Deputy Directors and Director, the top
post being of Surveyor General. These promotion posts are available for all
categories of entrants as has been clarified in the later set of Rules called
'The Survey of India (Class I Recruitment) Rules, 1960.' Before we part with
the 1950 Rules, it is necessary to place accent on some aspects of the military
officers and their career in the Survey of India. Their sojourn in this new
Department is not an exit from the Army but a long furlough, as it were. For
all practical purposes, they retain their military position and remain under
military control and are liable to be called back for regular army service. It
is a kind of provisional adoption into a different family but with the ties in
the natural family kept in-tact.
A Corps of Engineer Officer will be qualified
for recruitment only if he is in commissioned service for between three and six
years. Then he is to go through a two- year period of probation during which he
is to pass tests.
If he is not good, he gets back to military
duty and even if he makes good, he has an option to revert to military
employment. Even after confirmation, the officer may revert during the first 20
years of commissioned service on his own request. Even thereafter, with the
approval of the Government he may revert permanently to military duty, save in
the case of those who fall under Rule 4(c). If an officer retires from the army
that will involve retirement from the Survey of India too, save in the case of
those who are Colonels or Lt. Colonels, covered by Rule 4(c), and 1050 retires
from the army only for the reason that they have attained the requisite age
limit. Such persons under Rule 4(d) may continue in the Survey of India until
the age of superannuation from civil employment. It is important to note that
an officer may be reverted permanently to military duty if he is no longer
needed in the Survey of India on account of reduction in strength or
unsatisfactory work. He may also be reverted temporarily to military duty for
grounds given in Rule 4(f).
Another remarkable rule is Rule 8 which
speaks of wearing military uniform while in civil employment if the incumbent
is willing to observe the courtesies due to military officers of superior
ranks. Rule 9 is extremely significant and reads thus:
9. Military Promotion: A military officer in
the Survey of India is expected to keep himself efficient as an army officer
and will have to pass such promotion examinations, etc. as may be laid down for
other military officers of his rank and corps; such military confidential
reports will be submitted on him as may be required by the military
authorities. Military Confidential Reports will be initiated and submitted in
accordance with the procedure laid down in Special Army Order 24/S/51 as
amended from time to time.
Military officer in the Survey of India will
be considered for military substantive promotion in turn with others in their
corps and their fitness for such promotion will be judged by their confidential
reports.
After completing his normal period as a Lt.
Colonel an officer will be eligible for
promotion to full Colonel and above provided that:
(i) he is a substantive Director or above in
the Survey of India;
(ii) there is a vacancy in the number of
posts for full Colonel and above reserved for military officers in the Survey
of India.
Rule 10 is also meaningful because the army
officers in the Survey of India when they rise to higher positions get
equivalent rise in the Army. There are a few more aspects which perhaps may
1051 complete the story but the thrust of the submissions made by the learned
Attorney General on the strength of these rules is that the Army Engineers are
not integrated with or incorporated into the Survey of India Class I Service in
toto. There is a partial assimilation but a substantial separation persists.
Once an Army Engineer, always an Army Engineer, is the gist. Absent
integration, Art. 14 is out of bounds-such is the cumulative effect of the
Service Rules, 1950 according to the learned Attorney General. We will
presently examine his claim which has been rejected by the High Court.
Indeed, the pivotal point of this case is
perhaps the nature of the Service with special reference to Articles 14 and 16,
viz., the integration of the two sources into a common pool and the
impermissible de facto bifurcation of the two strands in promotional streams in
the years ahead.
Also, the myth of Defence needs and
consequent preferences for military recruits. The High Court rightly formulated
the crucial question when it stated:
Thus, the bone of contention of the
respondents is that the very nature of the work undertaken and done by the
Survey of India is related to Defence purposes and the officers recruited from
the army engineering corps are specially trained for this purpose. This,
according to the respondents, is the reasonable connection between the
classification and the object that is sought to be served in recruitment to
Class I service of the Survey of India.
The conclusions reached by the High Court
also deserve to be set down at this place to facilitate a clear understanding
of our approach and the basic finding of fact reached by the High Court. The
respondents have heavily relied upon this finding and have legitimately lashed
the appellants' plea as unpresentable in the face of this finding of fact. The
learned Judges observed:
This claim, however, is not made out before
us. We have already referred to the various affidavits filed by the parties. In
the original counter affidavits filed by respondents, the stand taken is that
because the rules provide for special privileges, they are being given to the
army personnel and so the equality concept is not violated. That is really
begging the question. When the petitioners complain that the rules made in this
behalf violate the equality concept as enunciated in Articles 14 and 16, it
would be futile to reply to that argument by saying that the rules so provide.
In the 1052 later affidavits some attempt is sought to be made to point out
that the nature of the work carried on by the Survey of India department is
essentially connected with Defence of India and that the officers recruited
from the Army Corps of Engineers are specially trained for this purpose. On the
basis of the material placed before us, we are not inclined to accept that the
work done by the Survey of India department is essentially of the nature and
character required for defence purposes. It may be that along with several
other surveys carried on by this Department, it does survey work which is
useful to the Defence department. From the affidavits and the other material
placed before us, it could be seen that the survey work done by the department
is mostly concerned with the development projects and preparation of maps for
various Ministries, State Governments, public sector projects and other
civilian agencies. The annexure filed along with the additional reply affidavit
filed by the petitioners show that the Survey of India is a national survey
organisation. It appears to have surveyed quite a large number of development
projects during the three plan periods. The department might have prepared some
maps useful for the Defence purposes. But that is only part of the work and
incidental to the nature of the survey it carries on. Its work does not appear
to be Defence oriented. The survey done by the department is utilised by several
departments of the Central and State Governments, public sector projects and
other civilian agencies. It is, therefore, making a tall claim to say that the
survey is essentially of Defence nature. Further, there is nothing to show that
even if the work related to Defence purposes the civilian officers are not
employed or engaged. Thus, the Survey of India appears to be a civilian
department with a civilian budget. Further, whenever there is an emergency
there is nothing which prevents or bars the Government of India from calling
upon the civilian officers also to serve on the border. It is the stand of the
petitioners that if 25 army personnel belonging to the Survey of India were
called to the border area in 1962 war, as many as 70 civilian officers belonging
to Class I and Class II categories were called to work in the same area. They
also assert that just like the Defence department uses some maps prepared by
the Survey of India, the Forest Department, G.S.I., P.W.D.
etc., also use the maps. So we are not
inclined to hold that the nature of the survey and work carried 1053 on by the
Survey of India department is largely defence oriented.
Even at this stage, we may refer to the High
Court's view about the historical background of this Service:
It is, further, stated by the respondents
that the historical background also supports recruitment of as much as 50% of
Class I officers from the army engineering corps. Some reports are sought to be
relied on in this connection. This argument overlooks the fact that we are not
concerned with the situation as it obtains in Independent India and not in
British India.
It is true that some attempts have been made
after attainment of Independence to attract officers from the army engineering
corps into Survey of India department.
But as in 1950, 1960, 1962 and 1974 Rules
generally show, the work done by the department is essentially civilian in
character. The impugned rules will have to be examined in the light of the
circumstances that are now prevailing ever since Independence and not on the
so-called historical background which has, in any case, become archaic.
In regard to the special training given to
the army personnel which is said to justify the classification, it appears to
us that this claim is not tenable. If the army personnel are given training in
field engineering for 9 months and for 3 years in the Military Engineering
College, Kirki, the qualifications required for direct recruitment of civilians
are no less valuable. Largely, only engineering graduates are recruited
directly. They have equal engineering experiences. Further, it does not appear
that the army officers had been given any survey training when they were in the
army services. It is not, therefore, possible to say that the recruits from the
army are better qualified than the civilian direct recruits. The promotees from
Class II have, behind them a very long experience of not less than one decade
in the work undertaken by the Survey of India department. With this long
experience of survey work, particularly belonging to this department behind
them, we do not see any justification for their being discriminated against in
favour of army officers. We are not, therefore, prepared to accept that the
army personnel in the Survey of India department have had any longer or better
training required for Survey of India than either the direct recruits or
promotees from Class II 1054 service to Class I service. The latter two
categories appear to be as qualified and as experienced as the army officers to
carry out the work of Survey of India.
The only conclusion that is possible from the
above discussion is that this classification made under the impugned rules
between the army personnel and the civilian personnel has no reasonable
connection with the object that is sought to be served.
We demur. Why ? The 1950 Rules, in our view,
have two prominent features which are basic. The first one which we have
already emphasised is that the military nominees do not shed their army service
and merge into a new Service but undergo a partial absorption and preserve a
substantial separateness. The second feature, which is perhaps more hurtful to
the civilian sector, turns on Rule 5 which provides for seniority. The rule
runs thus:
5. Seniority.-(1) On first appointment an officer
will be in the grade of Deputy Superintending Surveyor (Formerly Assistant
Superintendent) in Class I Service of the Survey of India.
(2) The seniority of military officers inter
se will remain the same as in the Army.
(3) The seniority of military officers
vis-a-vis directly recruited civilian officers will be determined by the year
of allotment which will depend:
(i) in the case of military officers, on the
date of first commission including ante-date, if any; and (ii) in the case of
directly recruited civilian officers, on the date of appointment ante- dated by
two years.
(4) Civilian officers directly recruited on
the results of any one examination will be junior to those recruited on the
results of earlier examinations and senior to those recruited on the results of
later examinations, the seniority inter se of those recruited in any one year
being determined according to the order of merit in which they are placed by
the Union Public Service Commission in the qualifying examination.
(5) Among those allotted to the same year,
military officers will rank senior to directly recruited civilian officers.
1055 Rule 5A deals with promotion-officiating
and substantive. A qualifying two-year probation and a further three years'
service are a sine qua non for substantive promotion. But officiating
promotions are open to all the officers, preference being given to those who
have done more years of actual survey work, regardless of seniority. Even
officiating posting needs the qualifying service of two years and three years,
earlier referred to. In this regard, the Class II officers who are directly
promoted as S.S. have a definite advantage over the military men. But when it
comes to confirmation in substantive promotion posts, the military personnel opting
into the Survey of India get the advantage of Rule 5 which bestows on them the
added benefit of the period of service from the date of first commission in the
Army which may be anything between three to six years as against two years of
ante-dated service which the civilian officers are entitled to tack on.
The 1960 Rules also require to be examined
before we proceed to a discussion. Rule 3 speaks of the sources of recruitment
or appointment Direct recruitment of qualified candidates, promotion or transfer
from another service, appointment from the Corps of Engineer Officers of the
Ministry of Defence and, rarely, admission of other qualified persons-these are
the methods of entry into the service. A direct recruit must be a graduate with
Mathematics or the holder of an Engineering Degree (there are other
alternatives which are of minor significance).
Rule 20A, which was an amendment made in
1965, insists that every person in the Service, appointed after the 1965
amendment, "shall be liable to serve in any defence service or post
connected with the defence of India, for a period of not less than four
years", including the training period.
This, incidentally, emphasises the military
adaptability expected of the Service. Rule 22 is important:
22. Seniority-(a) On the first appointment an
officer will be in the grade of Deputy Superintending Surveyor (formerly
Assistant Superintendent) in class I Service of the Survey of India.
(b) The seniority of military officers
inter-se will remain the same as in the Army.
(c) The seniority of military officers
vis-a-vis directly recruited civilian officers will be determined by the year
of allotment which will depend :
(i) in the case of military officers, on the
date of first commission including ante-dated if any; and 1056 (ii) in the case
of directly recruited civilian officers, on the date of appointment ante- dated
by two years.
(d) The relative seniority of all direct
recruits shall be determined by the order of merit in which they are selected
for such appointment on the recommendations of the Union Public Service
Commission, persons appointed as a result of an earlier selection being senior
to those appointed as a result of a subsequent selection.
(e) Among those allotted to the same year,
military officers will rank senior to directly recruited civil officers.
Another rule which must be mentioned for a
complete understanding is to the effect that Class II officers, when promoted
to Class I, are directly appointed as S.S. and, therefore, can skip the lower position
of D.S.S.
In 1970, the promotional scheme was slightly
modified, but the thrust of the argument that military engineers enjoyed an
advantage remained.
The attack made by the civilian wing,
consisting of two groups, namely, direct recruits and Class II promotees, is
against three key rules of the 1950 Scheme, viz., Rules 5, 5A and 11 and, of
course, their corresponding 1970 provisions based on Arts. 14 and 16 and the
High Court has substantially acceded on the basis that seniority prescriptions are
based on irrelevant criteria and arbitrariness is writ large in some of the
impugned provisions. The Court has struck down Rules 22B, 22E of the 1960 Rules
and Rules 5(2), 5(3), 5(5), 7 and 11 of the 1950 rules. However, the Court has
circumspectly declined to open the Pandora's box and restricted the refixation
of seniority and review of promotions "only from the date of the filing of
the writ petition viz. 5-3-1974, because if we do it from a back date, it would
be unsettling the promotions that had already been given before a challenge is
made by the petitioners." This comprehensive narration is sufficient to
inaugurate a discussion on the merits of the contentions after a formulation of
the critical issues.
The points urged by the learned Attorney General
are two fold. Neither Art. 14 nor Art. 16 is violated because the Army recruits
and the civilian entrants do not march into a common pool within the service of
the Survey of India. There are two sources or streams 1057 which flow into the
Service but remain immiscible layers.
Since the Constitutional mandate of equal
treatment applies only to equals, it cannot apply to the given situation.
Secondly, assuming there is a united cadre,
even then Art.
16 cannot invalidate the weightage for
seniority assigned to the military recruits, since sensible supportive
discremen, having a rational relation to the object of the Service exists and
that is sufficient panacea to cure the infirmity of differential treatment. He
further pressed that it was perfectly permissible, having regard to the
different sources, to prescribe a weightage at the time of the entry into the
Service. And, in the present case, the weightage is only at the time of entry
into the Service. Thereafter, they are treated as equal for all purposes of
promotion and what manifest advantage is derived by the military men in their
career is a consequence of the initial addition of the commissioned service for
the purposes of seniority.
These positions have been contested by Sri
Govindan Nair, for the respondents, who has further argued that it is not
proper for this Court to upset a finding of fact by the High Court unless there
be something palpably erroneous on the face of the judgment. This is true and
we should not slightly interfere save where there is grave error. Before we
discuss these points, we must clear the ground regarding the necessity of the
military presence in the survey Service. We have already quoted from the
affidavit on behalf of the Union of India, which gives condensed reasons for
induction of army engineers into the Survey of India. That terse statement
crystallizes all that we have stated at some length earlier in this judgment.
An S.O.S. and the Survey of India must go
into action maybe in the war-torn area, maybe for post-truce measurements. More
military survey literature was placed in our hands by the learned Attorney
General, making up for earlier defaults, to drive home the point that
multifarious though the Survey's operations are, it does discharge duties
secret, sensitive and strategic for Defence requirements which necessitate the
maintenance of an Army Engineering component willy-nilly.
This backdrop serves to highlight the issues
on which we may turn the focus. We may now enter the area of encounter. What
was a thoroughbred Military Engineering Corps suffered a metamorphosis by 1950
when a new set of rules of recruitment, composition and conditions of service,
consistent with the new vision, rainbow of responsibilities and switch over to
civilian departmentalisation, was brought about.
1058 A critical dissection of the present
set-up yields the result: While army engineers are definitely needed and are
not expendable, the civilian accent on developmental work and the like
justifies opening up the Service to recruits and promotees, non-military in
source. Guided by this flexible realism and acting under the proviso to Art.
309 of the Constitution, the President of India has made Rules in 1950 to
regulate the recruitment and conditions of service of the army personnel coming
into the Survey of India. The anatomy of the 1950 Rules is important. It
reserves 50% for the military Engineers by way of entitlement quota out of the
total number to be recruited over a year as D.S.S. The other 50% was to have
been divided equally between civilian recruits from the open market and the
Class II officers.
But, by an amendment of 1965, a modification
was made to the effect that the promotees from Class II would enter the Class I
Service directly as S.S. and not as D.S.S. Thus, the total number of vacancies
each year at the D.S.S. level has to be filled by recruitment in the proportion
of 50 and 25.
To illustrate for clarity, if there are 75
DSS vacancies in a given year, 50 of them are reserved for military nominees
and the remaining 25 are filled up by direct recruitment from the civilians.
The expression 'recruitment' definitely means enlisting anew into a Service and
so it may be taken that the army engineering quota is 50 out of the 75 and the
remaining 25 belong to the civilian recruits.
By way of contrast, the members of the Class
II Service have a quota of 25% but that proportion is to be worked out, in
terms of the extant rule, not based on the number of vacancies at the S.S.
level but by a calculation of the total number of posts at the S.S. and higher
levels in the Service. The total number of S.S., Deputy Directors and Directors
will be added up and 25% thereof will be recruited by promotion from Class II
Service. The recruitment is only to the posts of Superintending Surveyors
although the number to be so promoted is based upon totalling up the various
posts at and above the S.S. level.
The total number of vacancies at the DSS
level for each year shall be divided in the ratio of 2: 1 (50% for the Army
Corps and 25% for direct recruits). The 50% reserved for the army corps shall
be available to be filled by those candidates. The 25% seats to be filled by
direct recruits shall be filled only by such recruits. Even if enough direct
recruits are not available they will not be filled by the army nominees but
shall be kept vacant to be carried forward and filled in later years by such
direct recruits. A reasonable period for the carry 1059 forward scheme will be
3 years, not more. Likewise, military vacancies at the DSS level each year
shall be filled only by such nominees. If enough such hands are not available,
a similar procedure of carry forward will govern. For the SS posts 25% belongs
to promotees from Class II officers. The total number will be worked out by
adding all the posts of SS, Deputy Directors and Directors and Surveyor General
and allotting one-fourth of it as the quota for Class II promotees for
appointment as SS. Such is the reasonable interpretation of the rule.
Now we come to the bitter bone of contention
between the parties. Why should the 50% of military recruits be given a special
weightage ? Should not all entrants into the DSS be treated alike without being
afforded a handicap in the race? We see no difficulty in upholding this
weightage, once we accept the reality that the military portion of the Survey
is a compelling factor for national defence. We hold, on a study of the
materials already adverted to, that sans they army engineers the Survey of
India will become a functional failure in discharging its paramount duties in
times of war and in spells of peace, defence spreads beyond hot war or cold war
and sustains the sense of security by a state of ever readiness. There is
enough literature to establish that the work done by the army wing of the
Survey is far too important to be played with and such work is best done by
that wing.
The military recruits, as has been already
observed, are commissioned officers with 3 to 6 years of service. They have a
certain salary scale and period of service when they are baptised into the
Survey of India. Giving due weight to these factors, Rule 5 lays down the
criteria for seniority as between the military sector of recruits and the
civilian counter-parts. What needs to be appreciated is that for the very
efficiency of the Survey of India, a substantial army element is structurally
essential. Army engineers are invited into this Service not because this
department historically belonged to the Defence Forces but because it cannot
minister to one of the major objectives of its creation if it does not have
engineers with military training, aptitude, courage, discipline and
dare-devilry in hours of crisis. The necessity of the Survey, not opportunity
to the armymen, has determined the need to attract and, therefore, to allot a quota
in the upper echelons, viz., Class I, for military engineers. This, in turn,
has desiderated the offer of reasonable terms and conditions for army men to
join the Survey of India. The military engineers belong to the Corps of
Engineer Officers.
They are commissioned officers with service
of 3 to 6 years before coming into the Survey which needs, not raw engineers,
but men 1060 with some experience. They have prospects and scales of pay in the
Defence Department. Why should they look at the Survey if on entry they are to
lose their commissioned service and begin the rat race with civilian freshers?
Why should they suffer pay cut by walking into the Survey of India? It is,
therefore, fairly intelligible and basically equitable to allow military
engineers credit for commissioned service and protection of already earned
higher salaries.
The reasoning is simple. The functional
compulsions of the Survey of India require army engineers to be inducted, say
half its Class I strength. These engineering officers have to possess some
years of experience. How, then, can they be attracted into the Survey except by
assuring them what they were enjoying in their existing service, viz., credit
for the years under commission in reckoning seniority and fitment of their salary
at a point in the scale of Class I officers so that, by way of personal pay or
otherwise, a cut may be obviated. This is not discrimination or favoured
treatment but justice to those whom, of necessity, you want and must,
therefore, pay what they were being paid in the Army and give service credit
for the years on commission because you need men with specified years of
commissioned service. To equate them with unequal civilian freshers is
precisely the Procrustean exercise which is unconstitutional equality
anathematised by Article 14.
Let us eye the issue from the egalitarian
angle of Articles 14 and 16. It is trite law that equals shall be treated as
equals and, in its application to public service, this simply means that once
several persons have become members of one service they stand as equals and
cannot, thereafter, be invidiously differentiated for purposes of salary,
seniority, promotion or otherwise, based on the source of recruitment or other
adventitious factor. Birth- marks of public servants are obliterated on entry
into a common pool and our country does not believe in official casteism or
blue blood as assuring preferential treatment in the future career. The basic
assumption for the application of this principle is that the various members or
groups of recruits have fused into or integrated as one common service. Merely
because the sources of recruitment are different, there cannot be
apartheidisation within the common service.
The case of the Army engineers is not that
they should be given 'ethnic' preference in official life because of military
superiority. They merely plead that unequals should not be forced into equality
without regard to their rights.
They are unequal because their 3 to 6 years
of commissioned service cannot be wished away when brought into the service
shoulder to shoulder with raw recruits. Secondly, their salaries 1061 are
higher and that should not be forfeited as punishment for entering the Survey
Service. Not that the salary difference must be perpetuated but that at the
point of entry into service their commissioned service and personal pay should
be protected. The Service Rules safeguard both these-a just gesture without
which many army engineers may not care to respond and the 'efficiency' factor
of the Survey Service will fail in their absence.
The learned Attorney General also adopted the
precedentially sanctified route of escape from the magnetic field of Articles
14 and 16, that if the two sources of entry never really flowed into a
homogenised sangam but remained the Ganga and the Jamuna, no question of
equality arose. A common pool where the plurality meets is a necessary
postulate for the application of the equalist mandate. Here the army engineers,
it is apparent from the rules, essentially continue to be army men but wear pro
tempore Survey apparel, to be doffed any time specified in the rules
themselves. Resultantly, the military and civilian members remain immiscible
layers save for some purposes. The condition of integration of men from the
divergent sources being absent, rulings have held Art. 16 is out of the way.
Once it is agreed or found that at the
entrance point the army engineers are justly given credit for the commissioned
service which they carry with them, there is no further discrimination while in
service on the score that they come from the Corps of Engineer Officers. All
that happens thereafter is merely a manifestation of initial advantage of
credit for commissioned service. For this reason, we negative the case of
discrimination.
The relevant rulings not to burden but to
brighten the points urged, may be referred to. In B. S. Gupta's case(1) where
Art. 16 was agitated in a battle between promotees and direct recruits, one
facet of Service Jurisprudence was illumined. We excerpt:
When considering this point it must be
clearly understood that this Court is not concerned with Govt.'s policy in
recruiting officers to any service.
Government runs the service and it is
presumed that it knows what is best in the public interest. Government knows
the calibre of candidates available and it is for the Government to determine
how a particular service is to be manned-whether by direct recruits or by
promotees or both and, if by both, what should be the ratio between the two
sources having regard to the age factor, experience and other exigencies of
service.
Commissions and Committees appointed by the
Government 1062 may indeed give useful advice but ultimately it is for the
Government to decide for itself.
In the next place we have to remember that it
would be wrong to pronounce adversely upon the new seniority rule merely
because of its impact on the fortunes of any particular individual officer. Nor
will it be correct to point that an individual officer 'A' would have fared
better if the old quota rule and weightage rule had been restored.(1) We have
to take an overall view to determine whether the rule now framed by the
Government to determine seniority is just and fair.(2) A total conspectus does
not persuade us that anything grossly unfair has been perpetrated.
Absent fusion into one integrated service,
Art. 16 is not attracted, in a proposition entrenched by precedents. In Shujat
Ali's case,(3) this Court pithily put it:
The two categories of Supervisors were thus
never fused into one class and no question of unconstitutional discrimination
could arise by reason of differential treatment being given to them.
We have read Shelat, J's observations in
Wadhwa's case(4) to reinforce our view:
The principles on which discrimination and
breach of Arts. 14 and 16 can be said to result have been by now so well
settled that we do not think it necessary to repeat them here once again.
To sum up the position, the two services were
from as early as 1937 and before separate. At no stage, even after provincialisation
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.(5) 1063 No
principle under Art. 14 or Art. 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.(1) Going
backwards still further, we find Ayyangar, J. in Joginder Singh(2) emphatically
enunciating the same proposition:
If, as we hold, there was no integration (and
integration has no meaning unless it is complete, for there is no such thing as
partial integration) either expressly or by necessary implication, it would
follow that it was not the impugned rules that created the two distinct cadres
but that they existed independently of the rules and the only charge that could
be laid against the rules in this respect was that they failed to effect an
integration.
If the government order of September 27,
1957, did not integrate them into a single service, it would follow that the
two remained as they started as two distinct services. If they were distinct
services, there was no question of inter se seniority between members of the
two services, nor of any comparison between the two in the matter of promotion
for founding an argument based upon Art. 14 or Art. 16(1). They started
dissimilarly and they continued dissimilarly and any dissimilarity in their
treatment would not be a denial of equal opportunity, for it is common ground
that within each group there is no denial of that freedom guaranteed by the two
articles.(3) Likewise, in Jaisinghani,(4) the same note has been struck. To
pursue precedents beyond a point is a tiring adventure which reaches a point of
no return. It is too late to upset settled law save where the point of
extravaganza is reached. Here such a situation is yet to come.
Again, Sri Govindan Nair's submission suffers
damage from the following observations in Ganga Ram's(5) case.
1064 The direct recruits and the promotees
like the petitioners in our opinion, clearly constitute different classes and
this classification is sustainable on intelligible differentia which has a
reasonable connection with the object of efficiency sought to be achieved.
The distinction between direct recruits and
promotees as two sources of recruitment being a recognised difference, nor
obnoxious to the equality clauses, the provisions which concern us cannot be
struck down on the ratio of this decision.(1) Let us examine the facts briefly
to see whether the fundamentals of constitutional equality are followed in the
Service scheme. The army engineers remain in 'uniform' as it were but wear a
Survey of India overcoat. They do not merge or fuse into a single integrated
service with the civilian recruits but remain as an immiscible layer of the
Class I Service, the other layer being the civilians. The two wings remain
close but separate, not one homogenised family, as the various rules eloquently
proclaim.
The Army engineers are formally part of the
Survey of India but factually retain the vital pattern of life of the army and
close nexus with their official prospects, conditions and control as if they
had continued in the Army.
The 1950 Rules bring out the following
incidents of service boldly. Notwithstanding their having left the Corps
Engineer Officers Service and entering the Survey Service, they continue to
wear uniforms, they get notional promotions in the Army when they earn
corresponding promotions in the Survey of India. More significantly, they secure
Army promotions only if they pass the requisite army tests ab extra. They can
be recalled by the Army and, for a certain period, they themselves may opt back
to the army. They continue to be broadly under the control of the Commander-
in-Chief and when inefficiency is noticed, they can be called back to the army
for being dealt with appropriately.
They have to undergo the regular periodical
drills in the army and their disciplinary control is not divested from the Army
Chiefs. There are many other such details, the cumulative impact of which is
that they have two masters, as it were; they are in two Services, as it were;
they are under two parents-natural and adopted. This is a unique pattern where
the Army members remain with one foot in the Army and the other in the Survey
of India. A conspectus of the facts and circumstances governing the 1065
service convinces us that there is no total integration of the Army personnel
into the Survey Service. They are in it and yet out of it. This is what we may
call a sui generis Service and indubitably it can be asserted that they have
not fully fused into a common pool. Absent such complete integration, Article
14 or 16 cannot be invoked.
The present case plainly falls in the
hands-off zone and so the court must leave the injustice, if any, to be
corrected, if needed, by other processes. Our exploration has revealed that the
Survey of India is a civilian department rendering varied services to
non-Defence spheres of the Central Government and to State Governments. So its
composition cannot be reasonably confined to military personnel only. But
critical Defence-oriented work is also done, not only in seasons of national
emergency but also during peace spans. The border line between national
security by the Defence forces and developmental projects by civil services is
becoming obsolete. Defence is not only on the battle front but also in the
strategic rear, in the farms and factories, in efficient supplies and essential
services, in mapping second lines of defence and routes of troop movements, all
of them having to be executed on a war footing. Wings which can be mobilised at
instant's notice, forces which will build with blitz speed, have to be in the
sheath to be drawn out like a sword on an alarm signal. More than all, as
earlier elaborated, the tasks of the Survey for the Defence are in times of
Emergency top priority items. So a sizeable section of men with army
background, and military aptitude, with quick reflexes and familiar with
Defence team work, must be kept in reserve all the time. It follows that a good
proportion of Army engineers are a 'must' for the Survey. It is enough to have
25% or 50% from military engineers a matter of fine-tuning of policy for which
the judiciary has no genius and the Administration has a reach of materials and
range of expertise so that Courts must keep out, save where irrational
criteria, irrelevant factors, mala fide motives or gross folly enter the
verdict.
Have any such invalidatory infirmities been
established by the challengers here ? If the induction of the army engineers
has a nexus with the raison d'etre of the Survey of India, the exact dosage
needed to be drawn from that source for functional adequacy is not susceptible
of judicial measurement. If gross exaggeration is indulged in to boost the
military component or non-existent or illusory requirements are invented for
the same purpose, taking for granted judicial gullibility or jurisdictional
exile, the Court will call the bluff. But here 50% of Class I services, from a
historical need-based or other approach, cannot be called irrational,
impertinent or improvident.
1066 Likewise, the award of the length of
commissioned services in the Army as service in the Survey of India cannot be
dismissed as arbitrary or irrelevant. The necessity to attract such officers is
a factor. The reality of their engineering experience on commission cannot be
wished away. The value of such experience for the Survey of India with Defence
commitments argues itself. Whether such services should be given credit wholly
or at all in the new Service is more a matter of pragmatic wisdom beyond the
bounds of irrationality, arbitrary fancy or departmental quasi-nepotism. It is
difficult to dislodge the rules, fixing the quota and grafting of service while
on Army Commission on to the Survey of India service, as favoured treatment
devoid of rational foundation. If you need such army commissioned engineers-and
the Survey for its success wants them-you have to pay the fair price, not
ransom. That is all there is to it.
Sri Govindan Nair, with assertive argument,
gave us anxious moments when he pleaded for minimum justice to the civilian
elements. He said that the impugned rules were so designed, or did so result in
the working, that all civilians, recruit or promotee, who came in with equal
expectations like his military analogue, would be so outwitted at all higher
levels that promotions, even in long official careers would be hopes that sour
into dupes and promises that wither away as teasing illusions. In effect, even
if not in intent, if a rule produces indefensible disparities, whatever the
specious reasons for engrafting service weightage for the army recruits, we may
have had to diagnose the malady of such frustrating inequality. After all,
civilian entrants are not expendable commodities, especially when considerable
civil developmental undertakings sustain the size of the service. And their
contentment through promotional avenues is a relevant factor. The Survey of
India is not a civil service 'sold' to the military, stampeded by war
psychosis. Nor does the philosophy of Art. 14 or Art. 16 contemplate de jure
classification and de facto casteification in public services based on some
meretricious or plausible differentiation. Constitutional legalistics can never
drown the fundamental theses that, as the thrust of Thomas's case(1) and the
tail-piece of Triloki Nath Khosa's case(2) bring out, equality clauses in our
constitutional ethic have an equalising message and egalitarian meaning which
cannot be subverted by discovering classification between groups and
perpetuating the inferior-superior complex by a neo- doctrine. Judges may
interpret, even make viable, but not whittle down or undo the essence of the
Article.
1067 This tendency, in an elitist society
with a dischard caste mentality, is a disservice to our founding faith, even if
judicially sanctified. Subba Rao J. hit the nail on the head when he cautioned
in Lachhman Das v. State of Punjab:(1) The doctrine of classification is only a
subsidiary rule evolved by courts to give a practical content to the said
doctrine. Overemphasis on the doctrine of classification or an anxious and
sustained attempt to discover some basic for classification may gradually and
imperceptibly deprive the article of its glorious content. That process would
inevitably end in substituting the doctrine of classification for the doctrine
of equality; the fundamental right to equality before the law and the equal
protection of the laws may be replaced by the doctrine of classification.
The quintessence of the constitutional code
of equality is brought out also by Bose, J. in Bidi Supply Co.
case(2) The truth is that it is impossible to
be precise, for we are dealing with intangibles and though the results are
clear it is impossible to pin the thought down to any precise analysis. Article
14 sets out, to my mind, an attitude of mind, a way of life, rather than a
precise rule of law. It embodies a general awareness in the consciousness of
the people at large of something that exists and which is very real but which
cannot be pinned down to any precise analysis of fact save to say in a given
case that it falls this side of the line or that, and because of that decisions
on the same point will vary as conditions vary, one conclusion in one part of
the country and another somewhere else; one decision today and another tomorrow
when the basis of society has altered and the structure of current social
thinking is different. It is not the law that alters but the changing
conditions of the times and article 14 narrows down to a question of fact which
must be determined by the highest Judges in the land as each case arises.
The constitutional goal is to break down
inequalities steadily between man and man, whether based on status or talent.
Masses of men have suffered so long from social suppressions and environmental
inhibitions and to deliver them out of such stratification and petrification
came the message of social justice, blowing like winds of change, with an
accent on distributive justice ensured by the rule of real equal 1068
opportunity. This basic mandate of equality cannot be subverted by the
pragmatic plea of classified equality without robbing Arts. 14 to 16 of their
spiritual kernel in the process of decoding. Status to values must wither away
in the march to the constitutional goals. Every Article of Part III is an
article of faith of our nation and is the formal expression of a
moral-spiritual mandate, not a string of words whose meaning of meanings can be
played with by intellectual exercises favouring the Establishment. The
paramount law is value-loaded. Our freedom is in peril if equality is by
judicial reconstruction, a refined validation of inequality. Princes shall be
treated equally but pariahs will continue where they are-Why? because Art. 14
means only equality among equals, a self-evident statement without solemn
pronouncement. Mr. Justice Subba Rao in Lachhman Das's case(1) warned against
this pernicious potential. We pollute our cultural stream if we narrow the flow
of constitutional equality to the little trickle of equals being made equals.
The dynamic demand of levelling up unequals to the level of the higher brackets
is non- negotiable albeit gradual.
This caveat is sounded in the last paragraph
of the majority judgment in Triloki Nath(2) and is writ large in the whole of
the concurring minority judgment. It binds.
But we hope that this judgment will not be
construed as a charter for making minute and microcosmic classifications.
Excellence is, or ought to be, the goal of
all good government and excellence and equality are not friendly bed- fellows.
A pragmatic approach has therefore to be adopted in order to harmonize the
requirements of public services with the aspirations of public servants. But
let us not evolve, through imperceptible extensions, a theory of classification
which may subvert, perhaps submerge, the precious guarantee of equality. The
eminent spirit of an ideal society is equality and so we must not be left to
ask in wonderment.
What after all is the operational residue of
equality and equal opportunity? The point Sri Govindan Nair made from Triloki
Nath(3) is, on principle, well taken but on facts, fallacious. The learned
Attorney General, in the last instalment of information furnished in the course
of his reply, did convince us that no such disaster as was painted did or would
befall unless we take a myopic view.
1069 If we had been satisfied that the
end-product of the provision (Rule 5) was a manipulation of continued
seniority, beyond allowance for some differences, a perpetual suppression of
the civilian wing and a back-door entry into and occupancy of all higher
positions by the military men, it might have been a mockery of equality. But
the story is that some advantage is secured by the military recruits which is
intended and justified. Certainly, in the promotional scale this will be
reflected. But no monopoly of all promotions vests in the commissioned
recruits. It is a case of fluctuating fortunes, inevitable in interlacing two
sets of people coming from two sources with different backgrounds and assets.
As expressed earlier, rigid or relentless equalisation of divergent categories
who have been brought into one Service is the Procrustean bed process, contrary
to democratic social dynamics.
In the first few years, the army wing had a
better deal but in the next spell the civilian wing more than made up.
In the next span some change occurs and a
projection into the decade ahead shows that the civilians will outnumber the
army men at the next two tiers. Maybe, the Surveyor General may continue to be
a 'uniformed' engineer. We do not see the pathetic picture held out by counsel
and the differences we do notice are distances away from the creation of class
legislation. We do not strike down the rule as constitutionally obnoxious.
Sri Govindan Nair drew our attention to Pay
Commission Reports which had strongly recommended fair treatment to the
civilian wing by making the higher positions realistically accessible to them.
Prima facie, there is some grievance if promotions at the top are totally
sealed off, not in law but in fact. And simmering discontent of a whole wing is
no small matter. Maybe, when the apex is occupied always by a 'brass' boss the
working of the rules and of the department may be tilted. We do consider that
recommendations of the Pay Commission deserve Central Government's early
attention.
Flexible provisions for promotion to higher
positions which will not make the department lop-sided, or vertical division of
the civilian and military wings without injury to integrity and efficiency may
meet the needs of equality.
Policy is for the Executive, not the
Judicative wing. We find no unconstitutionality but discontent should not be
neglected in good government.
A measure of agreement, with marginal
differences in the interpretation of the rules, emerged in the course of the
debate. We may as well set it down to avoid future doubt. The learned Attorney
General stated, with a view to silence the grievance of the respondents, that
for promotions beyond Superintending Surveyor, even officiating S.S. are 1070
considered. It is not right to contend, he said, that only on confirmation they
are considered for promotion as Deputy Directors. Indeed, the learned Attorney
General pointed out that many Deputy Directors have been only officiating SSs.
We accept this as correct. If the officiating
SSs are also included for higher promotion based on merit the wind of inequity
is, pro tan to, taken out of the civilian sails.
Likewise, it is useful to clarify, in the
light of the 1965 amendment to the Rules providing for Class II officers being
promoted straight as SS (not DSS), that the recruitment to the DSS vacancies
each year and to the SS by promotion from Class II each year shall be as explained
earlier.
Sri Govindan Nair, apprehending adverse winds
in reversal of the High Court's conclusion, raised fresh contentions which he
was not permitted to put forward because they were new and urged only in the
Supreme Court.
Creative thinking is good, if it dawns in
good time; for, according to our procession law, arguments unborne on the
record in the High Court have no chance as a post-script in the Supreme Court.
For instance, he urged that commissioned officers governed by the Army Act
could not be governed by any other Service Rules. So much so, the 1950 Rules,
being a deviation from the Army Rules, were invalid. We illustrate but not
exhaust and, in any case, do not investigate.
The social philosophy of our fundamental law
is a perennial flow, rising and falling, rushing to push out obstructing rocks
and slowing to erode a doctrinal distortion, the power being geared to the good
of the people in terms of Justice, social economic and political. From this
futuristic standpoint, every decision of the Supreme Court is the focal point
of the battle of the tenses, of social change versus social stability. We leave
these seminal issues for future consideration when they more directly demand
decision. Enough unto the day is the evil thereof.
We allow the appeals but intricate
constitutional questions when decided by this Court to declare the law under
Art. 141 should be an exception to the conventional rule of costs following the
event, unless other circumstances warrant. So no costs.
P.B.R. Appeals allowed.
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