Col. D.D. Joshi & Ors Vs. Union of
India & Ors [1983] INSC 19 (1 March 1983)
DESAI, D.A.
DESAI, D.A.
ERADI, V. BALAKRISHNA (J)
CITATION: 1983 AIR 420 1983 SCR (2) 448 1983
SCC (2) 235 1983 SCALE (1)226
CITATOR INFO :
R 1990 SC1086 (10)
ACT:
Ante-dating the commission-Meaning of- Army
Instruction No. 78/78 dated 4th November 1978 prescribing an upward revision in
the period of benefit by ante-dating whether discriminatory and violative of
Articles 14 and 16 of the Constitution-Army Instruction No. 78178 clause (d)
and Note appended thereto scope of Interpretation of Statutes - Necessary party
- Joinder of.
HEADNOTE:
Under the Army Instruction No. 3115/48 dated
August 16, 1948, applicable to the Army Medical Corps, the commissioned
officers appointed to the service were held eligible for the benefit of
ante-dating their commission at the time of entry into AMC to the extent as
follows: (a) he held an approved whole time appointment in a recognised civil
hospital for a period of six months or more an ante-date for six months;
(b) he had a postgraduate Diploma requiring 9
months to qualify the same, an antedate not exceeding six months; (c) he had
any post graduate higher qualification, an antedate for a period of twelve
months and subject to the maximum limit of 18 months; (d) if he is covered by
(a+b+c) or (a+b) or (a+c) or (b+c) above. This was reduced to twelve months
from 1-1-1966 but enlarged to thirty months from 1-4-78 by the impugned Army
Instruction No. 78178 dated November 4, 1978. By the said Instruction, while
the concession at clause (a) remained unchanged ante-dating under clause (b)
was revised to 12 months if the course for Post Graduate Diploma involved 12
months study and under clause (c) the ante-dating was raised to 24 months.
Under the Note appended, not only the provisions were brought into force with
effect from 1-4-78 but the seniority of officers who joined with Postgraduate
qualifications between 1.10.76 and 31-3-78 were protected by grant of requisite
ante-date so that they do not become junior to officers joining on or after
1-4-78.
The petitioners who joined AMC between 1954
and 1963 and on March 15, 1970 and who had Post Graduate qualifications in
different specialities at the time of obtaining Commission, being aggrieved by
the amendment introduced by Army Instruction 78/78, challenged it under Article
32 complaining of discriminatory treatment in the matter of granting
ante-dating benefit, which is directly linked to seniority and promotion
prospects, inasmuch as the choice of date, viz., 1-4-78 is arbitrary.
Dismissing the petitions, the Court, 449
HELD: 1. Reckoning seniority in service from
a deemed date of commission in respect of the officers with P.G. qualifications
or previous service in Civil hospital etc. as prescribed in the Army
Instruction is styled as benefit of ante-dating. [455P-G] 2.1. If the language
of a provision is clear, unambiguous and ineligible, and does not admit of two
meanings, the court is bound to construe in its ordinary sense because it is well
recognised that language used speaks the mind and reveals the intention of the
framers. If the language of the statute is clear and unambiguous and if two
interpretations are not reasonably possible it would be wrong to discard the
plain meaning of the words used in order to meet a possible injustice. In such
a situation, it would be impermissible to call an aid any external aid of
construction to find out the hidden meaning. The cardinal rule of construction
of a statute is that it should be construed according to the intention
expressed in the statute itself. [457 D-E] Commissioner of Income Tax Madras v.
M/s. T. V. Sundaram Iyengar (P) Ltd. [1976] 1 S.C.C. 77 @ p. 84-85;
Capper v. Beldwin [1965] 2 Q.B. 53 @ 61
referred to.
2.2. On a plain grammatical construction of
para 6 (a) (b) and (c) of Army Instruction No. 74 of 76, it is clear that the
benefit of ante-dating the commission will be available at the time of being
commissioned as an officer of the Army Medical Corps i.e. at the time of
appointment and the qualifications must have been acquired prior to joining the
AMC. The expressions "at the time of appointment" and "higher
qualifications obtained prior to appointment" provided a terminus a quo
for the eligibility of the benefit when the benefit of ante-dating can be
granted and claimed.
[457 C-D] 2.3. The object, the purpose and
the intention underlying the provisions was to compensate for the extra time,
money and energy spent in acquiring post graduate qualification equipped with
which the men enter service and this object, purpose or intention underlying
the provision is clearly manifest in the language used in the relevant
paragraphs of the Army Instruction bearing on the subject by providing that
eligibility for gaining the benefit of ante- dating the commission, namely,
having a post graduate qualification shall be taken into account at the time of
entering the service. Two pre-conditions have to be fulfilled before the
benefit can be acquired i.e. (1) the candidate must have a post-graduate
qualification obtained prior to appointment, and (2) that such qualification
must have been acquired and must be available at the time of appointment.
Therefore, not only the language of the relevant provision leaves no room for
doubt but the object and intention underlying the provision clearly buttressed
the meaning of the provision. [458 P-H, 459 A] 3.1. The enlarged period of
ante-dating the commission introduced from April 1,1978 and made admissible to
only those entering on or after 1-4-78 cannot be said to be either violative of
Article 14 or 16 of the Constitution.
[463 D-B] 450 3.2. An employer has a right to
grant incentive for attracting better qualified persons to the service offered
by the employer. If the incentive is devised with a view to offering inducement
to those wavering whether to enter a certain service or not those who were
already in service and had that benefit once, cannot be heard to say that this
new incentive should be retrospectively enforced so as to give them the same
benefit. No incentive can be retrospective, though conditions of service can be
retrospectively made.
[460 P-H, 461 B] 3.3. The Note appended to
the amended Army Instruction No. 78!78 providing the benefit of enlarged period
of ante- dating being made available to new entrants only will have no
pernicious tendency of dividing a homogeneous class. In the matter of incentive
offered at the time of entering the service, there is no homogeneous class. The
new comers may become members of the class after being commissioned. They are
outside the cadre before entrance. They do Dot belong to the class of existing
members of the AMC. They derive the benefit of ante-dating simultaneously with
becoming the members of AMC. They do no t get any benefit denied to others after
becoming the members as benefit of ante dating is available at the time of
appointment only. Recruitment and Retirement are a continuous process. Those
who are recruited at the relevant time will have to satisfy the conditions for
recruitment then in force and would be entitled to the benefits that may be
available to the new entrants. [462 B-D, F-G] 3.4. In Union of India and Anr. v
M/s. Parameswaran Match works Etc. [1975] 2 SCR 573, the Supreme Court held
that the choice of a date as a basis of classification cannot always be dubbed
as arbitrary even if no particular reason is forthcoming for the choice unless
it is shown to be capricious or whimsical in the Circumstances of the case.
In the present case, the object underlying
the benefit extended to the new entrants determines the choice of date.
Inducement for attracting fresh recruits from
tho market must come into force by a certain date. The employer can
legitimately determine keeping in view the demands of public service, from
which date the inducement will be available.
In such a situation choice of date is not
wholly arbitrary and bas not the tendency to divide a homogenous class. There
is no differential treatment. The district possibility is that there would be
vertical splitting of a homogenous class.
[462 H. 463A-D] 3.5. The benefit of
ante-dating was devised long before the recommendations of the Third Pay
Commission were formulated and each petitioner got the benefit consistent with
the Army Instruction in force at the time of being commissioned in the AMC. A
subsequent enlargement of the period, not pursuant to the recommendation of the
Pay Commission and held out as an inducement for recruitment, from the market
cannot be claimed as a matter of right by those who have already availed of the
benefit of earlier occasion. [464 A-C] Purshotam Lal Dhingra and Ors v. Union
of India AIR 1973 SC. 1088. referred to.
3.6. The contention that limited
retrospectively is given by impugned Army instruction, is not correct. It is
infact a case of marginal adjustment showing fair play in action. [465 E-F] 451
4. Impleading of proper and necessary parties
to an adjudication will arise only in cases of individual claim or claim of
seniority by one person against specified others, but a question of interpretation
could be given because it would be binding on the Union of India, the presence
of others is unnecessary. Union of India would have merely to give effect to
the decision of the Supreme Court. Therefore, the absence of those who may by
the Supreme Courts' interpretation o a provision be adversely affected in the
facts and circumstances of the case need not be necessarily here, and if the
relief could have been granted the same would not have been denied on the
ground that proper parties were not before the Court. [465 G-H, 466 A-B]
ORIGINAL JURISDICTION : Writ Petitions Nos.
3685-91 of 1982 and 5636 of 1980.
(Under article 32 of the Constitution of
India).
MR. Ramamurthi and Mrs. Indra Sawhney for the
Petitioners.
N.C. Talukdar and V.B. Sahariya and Miss A.
Subhashni for the Respondents.
The Judgment of the Court was delivered by
DESAI, J. Commissioned officer belonging to Army Medical Corps ('AMC' for
short), having post graduate qualifications in different specialities at the
time of obtaining commission have approached this Court under Article 32
complaining of a discriminatory treatment in the matter of granting antedating
benefit which is directly linked to seniority and promotional prospects.
Petitioners in the first batch of petitions
were granted commission in AMC between 1954 and 1963. Petitioner in the second
petition was commissioned as a regular officer in AMC on March 15, 1970. There
are in all 154 commissioned officers including the petitioners belonging to AMC
who are similarly situated and who according to the petitioners suffered the
same discriminatory treatment The petition is not in a representative capacity.
Petitioners assert that the decision in this group of petitions would affect
roughly 147 other officers.
Petitioners held post graduate qualifications
in different branches of medical science and some of them held an approved
wholetime appointment in a recognised civil hospital for a period of six months
or more prior to being commissioned in AMC.
452 There is a provision for giving the
benefit of ante- dating the commission for varying periods, if the commissioned
officer at the time of entry fulfils prescribed qualification. The earliest
available reference is to Army Instruction No. 31/S/48 dated August 16, 1948
which provided as under:
"(a) An officer who has held an approved
wholetime appointment in a recognised civil hospital for a period of six months
or mole will be eligible for an ante date of six months.
(b) A candidate will be eligible for the
grant of an ante-date not exceeding six months if he, at the time of selection,
is in possession of a post graduate Diploma in any branch of medical science
recognised by the Indian Medical Council, provided that the candidate has to
attend a course of Instruction in a recognised institution for at least 9
months to qualify for such Diploma (c) At the time of appointment a candidate
will be eligible for the grant of an ante-date not exceeding 12 months in
respect of higher qualifications obtained prior to appointment. This will normally
be granted for qualifications such as Doctor of Medicine, Master of Surgery.
Fellow of the Royal College of Surgeons, Member of the Royal College of
Physicians or an equivalent qualification obtained by examination from
recognised Universities or colleges.
(d) In the case of a candidate who is
eligible for an antedate under more than one of the preceding sub- para graphs,
the maximum period of ante-date will be limited to eighteen months." It
appears that prior to December 31st, 1965 maximum period of ante-dating benefit
was 1. 1/2 years which was reduced to one year from January 1, 1966. It was
enlarged to maximum 2-112 years from April 1, 1978. Thus the period varied but
the conditions for eligibility remained-more or less constant.
453 By Army Instruction No.74 of 1976, the
period of ante- dating under clauses (a), (b) & (c) remained unchanged but
the period under clause (d) was raised to 18 months in the aggregate.
By the impugned Army Instruction No. 78 of 78
dated November, 4, 1978, a further upward revision in the period of ante-dating
the commission by amending Army Instruction No. 74 of 76 was prescribed. By
this amendment, the period prescribed in clause (a) above remained unchanged.
The period of ante-dating prescribed in clause (b) was revised from 6 months to
12 months and the period of instruction was revised from 9 months to 12 months.
In clause (c), the period of 12 months was revised to 2 years and in clause
(d), the aggregate was upward revised from 12 months to 2- 112. years. A note
was appended to this amendment which according to the petitioners introduces
the discrimination.
It reads as under:
"The above provisions are effective
w.e.f. 1.4.78.
However, the seniority of officers who joined
with PG. qualifications during 1 to 1-1/2 years prior to 1.4.78 will be
protected by grant of requisite ante-date so that they do not become junior to
officers who have joined later with equivalent PG qualifications."
Petitioners contend that denial of the benefit of longer period of ante-dating
the commission introduced by the amended Army Instruction No. 78 of 78 which
became effective from April 1, 1978 to those commissioned officers who had
requisite post graduate qualifications when they were commissioned prior to
April 1, 1978, is grossly discriminatory and the choice of date is arbitrary It
is alleged that those officers who had post graduate qualification at the time
of being commissioned in AMC whether they were commissioned prior to 1.4.78 or
thereafter for the purpose of conditions of service and treatment from one
homogenous class and by the arbitray choice of date, this homogenous class is
divided to pick and choose arbitrarily for the benefit of longer period of
ante-dating the commission and the classification is not based on any
intelligible differentia and if there be any, it does not have any rational
nexus to the objects sought to be achieved. It is further alleged that the
choice of date for granting the benefit being thoroughly arbitrary and is not
explainable on ally rational hypothesis and therefore, on these grounds. the
denial of benefit of extended period of ante- 454 dating to those who were
commissioned prior to 1.4.78 is discriminatory and it is a denial of an
equality of opportunity in the matter of employment and thereby violative of
Art. 16 of the Constitution It is alleged that in the matter of ante-dating the
commission, there is no difference between those who had post graduate
qualification when commissioned prior to 1.4.78 and those who were commissioned
subsequent to that date and therefore, the earlier entrants have been treated
with an evil eye and unequal hand and therefore this treatment is violative of
the guarantee of equality in the matter of employment. Petit ioners have
averred in the petition that the benefit of antedating the commission to those
who were commissioned after obtaining post graduate qualification irrespective
of whether they have commissioned prior to a certain date or subsequent to that
date, in the matter of conditions of service, cannot differently treated and
they are entitled to same treatment irrespective of the date on which the
commission was granted.
In the return filed on behalf of the
respondents, it was specifically contended that the benefit of ante-dating is
granted at the time of being commissioned in AMC and it is an incentive for
attracting persons who applied for being commissioned after obtaining post
graduate qualification. It is further averred that if even the old commissioned
officers are given benefit of larger period of ante-dating, it would adversely
affect a large number of officers of the AMC and would disturb the seniority of
number of persons. It was further alleged that promotions are given on the
basis of seniority. It was averred that those commissioned officers of AMC who
have either acquired the post graduate qualification while in the service or
who were merely M.B.B.S. at the time of being commissioned and those who had
post graduate qualification when commissioned are all brought on a common seniority
list and on the basis of this common seniority list, promotion to the higher
rank is given. It was therefore, contended that if the earlier entrants are now
given benefit of longer period of ante- dating, it would disturb the seniority
and promotional prospects of a large number of persons and this is unjust and
unfair. Number of charts have been annexed to the written submissions by the
learned Additional Solicitor General showing that giving of benefit of longer
period of 455 ante-dating the commission to the petitioners and those similarly
situated would give them an underserved advantage of jumping over a number of
senior officers and the promotional prospect of many such persons would be
adversely affected. The note at the foot of the Army Instruction No. 78 of 78
was explained by saying that since by the impugned Army Instruction the maximum
period of ante-dating the commission is revised to 2-1/2 years, if those just
above the marginal line meaning those who were commissioned shortly prior to
1.4.78, if not protected, would be adversely affected by those entering just
after the date and would score a march over the earlier entrants and to protect
them, it was provided that the seniority of officers who joined with PG.
qualification during the 1/2 years prior to 1.4.78, will be protected by grant
of requisite antedate so that they do not become junior to officers who have
joined later with equivalent P.G. qualifications. It was said that there is
rationale behind the note and it is incorrect to say that limited retrospective
effect is given to the impugned Army Instruction No. 78 of 78.
At the outset, it is necessary to clear the
ground by understanding what constitutes ante-dating the commission.
It appears that the basic minimum entry
qualification for being commissioned in AMC is graduate degree such as M.B.B.S
Those who enter service with post graduate qualification such as post graduate
diploma or post graduate degree or those who eater after having held an
approved whole time appointment in a recognised civil hospital for a period of
not less than 6 months will be given a deemed date of commission prior to the
actual date of commission depending upon the period for which under the
relevant Army Instruction such person is qualified. In other words, such person
would be deemed to have been commissioned at a date earlier than the date on
which he is actually com missioned.
This deemed date would be the date on which
person concerned is deemed to have been commissioned and his seniority would be
reckoned from such deemed date. This is what is styled in the relevant Army
Instruction as benefit of antedating.
The commissioned officers in the AMC fall
into three recognised divisions: (1) those who enter with post graduate
qualification, (2) those who acquire post graduate qualification after being
commissioned, and (3) those who enter as M.B.B.S. and never acquire 456 any
further post graduate qualification. It is not disputed that all the three are
borne on the common seniority list because they formed one class of
commissioned officers in AMC. Further upward promotion is generally based on
this common seniority list.
The benefit of ante-dating is given to those
who enter AMC with post graduate qualification and the benefit of ante-dating
the commission is given at the time of being commissioned and not later on. The
learned Additional Solicitor General pointed out that this benefit of
antedating commissions is in vogue from 1948 but the period has varied
according to the decision of the Government of India to provide incentive for
entering AMC depending upon market conditions of recruitment. It appears that
prior to December 1, 1965, maximum ante-dating admissible on account of post
graduate qualification and for whole time hospital appointment was 1-1/2 years.
From January 1, 1966, it was reduced to one year. Government of India was again
approached for enlarging the period of ante-dating admissible on account of the
post graduate qualification.
Accepting the proposal, the maximum period
for ante-dating the commission was revised from one year to 2 years with effect
from April 1, 1978 with the marginal adjustment to avoid any undeserved benefit
being given to the later entrants over earlier entrants to be adjusted as set
out in the note appended to the impugned Army Instruction. It was however,
strenuously urged that this benefit of ante-dating was admissible at the time
of appointment because it was an incentive and not a benefit being conferred
for all those who have already entered AMC. This submission is borne out by the
language of the relevant Army Instruction.
Let us turn to the Army Instruction dated
August 16, 1948. Para (b) which is relevant for the present purpose provided
that 'A candidate will be eligible for the grant of ar. ante-date not exceeding
6 months if he, at the time of selection is in possession of a post graduate
Diploma etc.' The words 'at the time of selection' clearly connotes the stage
when benefit is admissible and reveals the object underlying the benefit of
ante-dating. Similarly para 6(b) of Ar r y Instruction No. 74 of 76 dated
September 18, 1976 clearly provides that 'a candidate will be eligible for the
grant of an ante-date not exceeding 12 months if he, at the time of appointment
is in possession of a post graduate diploma in any 457 branch ..........' Again
attention should be focussed on the expression 'at the time of appointment'. By
the impugned amendment by Army Instruction No. 78 of 78 dated November 4, 1978
what is revised is the period, in para 6(b) and 6(e) raising it to 12 months
and 2 years respectively retaining the condition of eligibility, namely, 'at
the time of appointment'. In this connection, one can advantageously refer to
para 6(c) of Army Instruction No. 74 of 76 which provided that 'at the time of appointment,
a candidate will be eligible for grant of ante-date not exceeding 2 years (now
revised) in respect of higher qualifications obtained prior to appointment'.
The expressions 'at the time of appointment' and 'higher qualifications
obtained prior to appointment' provided a terminus a quo for the eligibility of
the benefit when the benefit of antedating can be granted and claimed. On a
plain grammatical construction of para 6(a), (b) and (c) of Army instruction
No. 74 of 76, there is no room for doubt that the benefit of ante-dating the
commission will be available at the lime of being commissioned as an officer in
AMC, i.e. at the time of appointment and the qualification must have been
acquired prior to joining AMC. If the language of a provision is clear,
unambiguous and intelligible, and does not admit of two meanings, the Court is
bound to construe it in its ordinary sense because it is well recognised that
language used speaks the mind and reveals the intention of the framers. If the
language of the statute is clear and unambiguous, and if two interpretations
are not reasonabily possible, it would be wrong to discard the plain meaning of
the words used in order to meet a possible injustice. (See The C.I.T., Madras
v. M/s. T.V. Sundram Iyengar (P) Ltd.(1).
In such a situation, it would be
impermissible to call in aid any external aid of construction to find out the
hidden meaning. The cardinal rule for construction of a statute is that it
should be construed according to the intention expressed in statute itself (see
Capper v. Bledwin).(2) It would be presently pointed out that the underlying
intention object and purpose for granting the benefit of antedating clearly
bears out the meaning deduced by literal construction.
It is therefore necessary to go into the
genesis of extending this benefit of ante-dating the commission. It is well
known those who 458 pursue study for higher qualification in any branch of
medicine after acquiring the graduate degree had to put in formerly two years
and now nearly three years in acquiring post graduate qualification. If the
employer meaning the Union Government would get the benefit of person who has
put in 2 to 3 years of advanced learning and training and is, therefore better
equipped, he or she must be compensated in some measure. There would be
qualitative difference in the service rendered by a graduate entrant and an
entrant with post graduate qualification. The time, money and energy expended
in acquiring higher qualification is sought to be compensated by grant of
ante-dating benefit, therefore the benefit of ante-dating was devised and has
been in vogue.
Obviously, this benefit is to be given at the
time of entering service. The recognition for the time, money and energy spent
by an entrant with postgraduate qualification, compared to a graduate who
enters AMC because of this minimum eligibility qualification is implicit in
devising this benefit of ante-dating the commission. If the Union Government
were to treat one who has the graduate degree on par with one who has a post
graduate degree both are brought on the common seniority list for further
promotion, obviously the person who spent some time in acquiring post graduate
qualification, the benefit of which would be available to the employer, would
be at a comparative disadvantage in the matter of seniority and future
promotion compared to one who came with only graduate qualification.
It is this difference between a graduate
entrant and entrant with post graduate qualification which was sought to be compensated
by granting the benefit of ante-dating the commission. The object, the purpose
and the intention underlying the provision was to compensate for the extra
time, money and energy spent in acquiring post graduate qualification equipped
with which the men enter service and this object, purpose or intention
underlying the provision is clearly manifest in the language used in the
relevant paragraphs of the Army Instruction bearing on the subject by providing
that eligibility for gaining the benefit of ante- dating the commission,
namely, having a post graduate qualification shall be taken into account J at
the time of entering the service. Two pre-conditions have to be fulfilled
before the benefit can be acquired i.e. (1) the candidate must have a postgraduate
qualification obtained prior to appointment, and (2) that such qualification
must have been acquired and must be available at the time of appointment.
Therefore, not only the language of the relevant provision leaves no room for
doubt but the 459 Object and intention underlying the provision clearly
buttessed the meaning of the provision.
If the benefit of ante-dating the commission
is not to be granted at the time of enacting the AMC to those who enter with
post graduate qualification, how would their case be differentiated or
distinguished from those who acquire post graduate qualification while in
service. There is no qualitative difference in the relative merit of a person
entering service having acquired post graduate qualification and one who acquires
the same after entering the service, of course, since after acquiring the
qualification. Yet the benefit of ante-dating is given to those who enter AMC
with post graduate qualification, and not to those who acquire such
qualification after being commissioned. It may be recalled that at present out
of approximately 4,400 commissioned officers of AMC, there are about 154
commissioned officers who were commissioned after having acquired post-graduate
qualification. As against this there are about 1227 officers of the AMC who
acquired post- graduate qualification while in service. The quality of service
rendered by both having identical qualification would not be materially
different, and yet in the case of first, the benefit of ante-dating the commission
is extended by the relevant Army Instruction while in the case of latter, no
such benefit is given. This clearly establishes that the benefit of antedating
the commission is to b? made available only to those who had acquired post
graduate qualification before being commissioned into the AMC. The recipient of
the benefit gets seniority over earlier entrants and the seniority is
determined, in the absence of another rule from the date of entry in the
service or cadre.
The seniority so acquired will enable such
persons to be considered for promotion earlier than those over whom they score
a march by ante-dating the commission. It is thus abundantly clear that the
benefit of ante-dating the commission is available only at the time of entering
the AMC. A subsequent enlargement of the benefit cannot be retrospectively made
available to those who had already entered service and once availed of the
benefit because their case thereafter would. not be different from those who
acquired post-graduate qualification after being commissioned as members of
AMC.
It was strenuously contended on behalf of the
petitioners that all commissioned officers of AMC who entered AMC after
acquiring post graduate qualification formed one homogeneous class and by 460
artificially selecting the date of April 1, 1978 for entitlement of enlarged
period of ante-dating compared to those who had entered prior to that date has
the pernicious tendency of dividing a homogeneous class into two compartments.
It was urged that this classification is not based on any intelligible
differentia and it has no rational nexus to the objects sought to be achieved
by enlarging the period of entitlement. It was therefore, contended that the
note at the foot of the amended Army Instruction No. 78178 which introduces
discriminatory treatment in the matter of longer period of ante-dating the
commission by denying the same to those who entered prior to that date and
extending it only to those who entered subsequent to that date, is violative of
the guarantee of equality enshrined in Article 14 and is a denial of equality
of opportunity in the matter of employment as guaranteed under Article 16 all
therefore, being unconstitutional deserves to be struck down. A good number of
decisions of this Court were read to us. The deci- sions on the scope and
content of Article 14 are legion and to recall and of them would be merely an
'idle parade of familiar learning'. It is well-settled and not controverted on
behalf of the respondents that Article 14 forbids class legislation but does
not forbid classification for the purpose of legislation. It is equally well
settled that in order to meet the least of Article 14, (i) the classification
must be based on intelligible differentia which distinguishes persons or things
that are grouped together from those that are left out of the group; and (ii)
the differentia must have a rational nexus to the objects sought to be achieved
by the legislative or executive action under challenge.
Does the enlarged period of ante-dating the
commission made admissible to those who enter AMC after a certain date denying
the same benefit to those who had already entered AMC prior to that date, has
the pernicious tendency to divide a homogenous class based on arbitrary
criterion and not relatable to any intelligible differentia one has to remember
that an employer has a right to grant incentive for attracting better qualified
persons to the service offered by the employer. If the incentive is devised
with a view to offering inducement to those wavering whether to enter a certain
service or, not, it is difficult to accept that such incentive should also be
extended to those who have already entered service and have already taken full
advantage of the benefit available at the time of entering service. In this
case, it is clearly. made out that the benefit of enlarged period 461 of
ante-dating the commission for persons joining AMC after having acquired
post-graduate qualification was given as an incentive with a view to attracting
more persons who have already acquired postgraduate qualification. Those who
were already in service and had that benefit once, cannot be heard to say that
this new incentive should be retrospectively enforced so as to give them the
same benefit. It is difficult to conceive that an incentive can be
retrospective though it is indisputable that conditions of service can be
restrospectively made. And the unfairness of the approach of the petitioners
becomes manifest from the fact that while maximum period of antedating prior to
December 31, 1965 was 1-1/2 years when petitioners entered AMC, which was
reduced to one year effective from January 1, 1965, none of them ever suggested
that this being a condition of service must uniformly apply to those who would
be covered by the conditions of eligibility and thereafter the period must be
reduced. But subsequently when the period of ante-dating was enlarged by the
impugned Army Instruction which became effective from April 1, 1978, it is now
clamoured that this benefit must be extended to those who have entered AMC way
back as early as November. 1949 and in the process give the petitioners and
similarly situated persons a march over those who are already senior to them in
the common seniority list.
The degree of unfairness of the claim of petitioners
can be demonstrably established by working out the position of some petitioners
on the footing that each one . of them is entitled to longer period of
ante-dating the commission.
Ist petitioner Col. D.D. Joshi was
commissioned on July 25,1954 and after obtaining the benefit of ante-dating
then available, he was put in the seniority list as if he had been commissioned
on January 25, 1953. Now if he is given the benefit of ante-dating the
commission by 2-1/2 years, his deemed date of joining the AMC would be January
25, 1952. in the process, he would scope a march over 21 con missioned officers
who are already senior to him in the seniority list. This is equally true of
all the 7 petitioners but in the case of petitioner No. 3-Col. V.S. Sharma, he
would score a march over 41 commissioned officers already senior to him. One
M.B.L. Sexena who is not one of the petitioners but who is similarly situated,
if now held entitled to benefit of 22 years ante-dating, he would jump over SO
commissioned officers senior to him. In the case of petitioner No. 7. he would
supersede 65 officers already senior to him and a good number of them are 462
persons who had acquired post graduate qualification, of course, after joining
the service. Could one ever think of an incentive giving such an undeserved
advantage ? The answer is obviously in the negative.
The next question is does this incentive
divide a homogeneous class ? In the matter of incentive offered at the time of
entering the service, there is no question of a homogeneous class. The new
comers may become members of the class after being commissioned. They are
outside the cadre before entrance. They do not belong to the class of existing
members of the AMC. They derive the benefit of ante-dating simultaneously with
becoming a member of AMC. They do not get any benefit denied to others after
becoming the members as benefit of ante-dating is available at the time of
appointment. There may be an enlargement of the cadre. There would be
retirements. Recruitment and retirement are a continuous process. Those who are
recruited at the relevant time will have to satisfy the conditions for
recruitment then in force and would be entitled to the n benefits that may be
available to the new entrants. If the principle canvassed for on behalf of the
petitioners is taken to the logical end, it would lead to a startling result.
Suppose a rule is now made that only persons with post graduate qualification
would be qualified for being commissioned in AMC, can anyone contend that as in
the past mere graduates were recruited and therefore, ignoring the revised
minimum eligibility qualification, a graduate must be considered for
recruitment. Therefore, in respect of benefits which are available for certain
qualification at the time of entering the service, the same having been made
available, a revision of the same at a later date to attract fresh entrants
cannot be retrospectively claimed by those who had already entered service
knowing full well the benefit then available.
Therefore, there is no substance in the
contention note appended to the, amended Army Instruction No. 78/78 pr the
benefit of enlarged period of ante-dating being made available to new entrants
only will have the pernicious tendency of div homogeneous class.
It was then contended that the selection of
the date April 1, 1978 is thoroughly arbitrary and has no national nexus to the
objects sought to be achieved. Reliance was placed on Union of India & Anr.
v M/s Parameswaran Match Works etc.(1) In that case this Court 463 quoted with
approval the decision in Louisviile Gas Co. v.
Alabama Power Co., (1) wherein it was
observed that the choice of a date as a basis for classification cannot always
be dubbed as arbitrary even if no particular reason is forthcoming for the choice
unless it is shown to be capricious or whimsical in the circumstances of the
case. In the present case, there is no division of a homogeneous class by the
choice of the date. The object underlying the benefit extended to the new
entrants determines the choice of date. Inducement for attracting fresh
recruits from the market must come into force by a certain date. The employer
can legitimately determine, keeping in view the demands of public service, from
which date the document will be available. In such a situation choice of date
is not wholly arbitrary and has not the tendency to devide a homogeneous class.
We see no classification amongst those who enter AMC after acquiring
Postgraduate qualification determined by length of ante-dating benefit because
each one at the relevant time obtained the advantage of ante-dating as it was
then in force. There is no differential treatment. There is no division of a
homogeneous class. The distinct possibility is that if petitioner's contention
is accepted there would be vertical splitting of a homogeneous class. It is
therefore, difficult to accept the contention that the note under the impugned
amended Army Instruction is violative of Art. 14 or Art. 16.
It was next contended that the Third Pay
Commission recommended that doctors entering service of the Union of India with
post-graduate qualifications should be suitably recompensated for the time
spent in acquiring these qualifications. It was urged that this recommendation
was implemented in Central Government Health Service and it is this
recomtnendation which has promoted the Union of India to enlarge the period of
ante-dating. It was urged that by limiting the benefit only to those who would
be commissioned on or after April 1, 1971, the respondents are guilty of
according discriminatory treatment in the matter of public employment, and it
is violative of Article 16 of the Constitution. Reliance was placed on
Purshotam Lal and others v. Union of India & Anr (2)., wherein this Court
held that when a Pay Commission snakes recommendations and the Government
accepts the same, it is hound to implement the recommendations in respect of
all Government employees. And if it does not implement the report regarding
some employees only it 464 commits a breach of Arts. 14 and 16 of the
Constitution It is difficult to appreciate how this decision would help the
petitioners. The benefit of ante-dating was devised long before the
recommendations of the Third Pay Commission were formulated and each petitioner
got the benefit consistent with the Army Instruction in force at the time of
being commissioned in the AMC A subsequent . enlargement of the period, not
pursuant to the recommendation of the Pay Commission and held out as an
inducement for recruitment from the market cannot be claimed as a matter of
right by those who have already availed of the benefit on earlier occasion.
It was then contended that if extending the
benefit of enlarged period of ante-dating to all irrespective of the date of
entry would have the tendency of unsetting the seniority list, that should not
weigh with this Court because on such nebulous ground violation of
constitutional mandate cannot be overlooked. Reliance was placed on General
Manager, South Central, Railway, Secundrabad and Anr. etc. v A.V.R. Siddhanti
& Ors. (1). We again fail to see how this decision helps the petitioners.
The fallacy underlying the submission is that this benefit of enlarged period
of ante- dating is claimed as a condition of service uniformally applicable to
all persons qualifying for the same ignoring the conditions under which it can
be claimed. The contention overlooks the basic condition subject to which
benefit can be claimed and it is that it is available at the time of entering
the service as a compensation for having a higher qualification compared to
their simultaneously entering service with lower qualification. And undoubtedly
an inducement held out to future entrants, if extended to those who had entered
more than 25 years ago, the inducement so offered would adversely affect a
large number of persons who need not be subjected to unfair treatment for no
fault . Of theirs. There are hundreds of officers, in all- 1227, who are
holding post graduate qualifications today, may be having acquired the same
after joining service but there being no qualitative difference in the service
rendered by them and those who entered with PG qualification, way-back in 1948
or 1949 or 1953, if the contention is accepted. The petitioners would score a
march over others having now the same qualification thereby giving the
petitioners an unfair 465 advantage which ought not to be given, if approaching
the matter A from that angle, would not violate any constitutional mandate.
The next contention is that if giving the
petitioners benefit of enlarged period of ante-dating would unsettle a settled
seniority list, the respondents have already given limited retrospectivity to
the revised benefit by providing in the note to the impugned Army Instruction
78/78 that:
"The seniority officers who joined with
PG qualifications during 1-112 years prior to 1.4.78 will be protected by grant
of requisite ante-date so that they do not become junior to officers who have
joined later with equivalent PG qualifications." It was urged that the
provision in the note would benefit some of those who joined with PG
qualifications even prior to April l, 1978 in a limited way, and thus its
retrospective operation is implicit in the note. There is no merit in this
contention. In fact the provision demonstrably establishes fair play in action.
An illustration would expose the fallacy underlying the submission. 'A' joined
with PG qualification and six months full time service on 31st March, 1978, 'B'
joined with the same qualification and eligibility on April 2nd, 1978. Both are
wholly similarly situated. 'A' would get ante-date benefit of 1-1/2 years and
'B' would qualify for 2 1/2 years. 'B' though a later entrant with same
qualifications would score a march over 'A'. This would be extremely unfair. To
protect such cases, it is provided that those who joined with PG qualifications
during 1-1/2 years prior to April 1, 1978 will be protected by giving of
requisite ante- date to protect their seniority over later entrants who
qualified for larger period of ante-dating. It is idle to contend that limited
retrospectivity is given to impugned Army Instruction. It is in fact a case of
marginal adjustment showing fair play in action.
On behalf of the respondents, it was urged
that if the contention of the petitioners is accepted which could compel the
first respondent to re-settle the seniority list, those over whom petitioners
and those similarly situated would score a march should have been impleaded as
respondents and in their absence, no relief can be given to them. We would not
accept this contention for two reasons: (i) that the decision in General
Manager, South Central Railway Secundrabad etc. would permit us to negative the
contention, this being not a case of individual claim or claim of seniority by
one person against specified others, but a question of interpretation of a
provision and which interpretation could be given because it would be binding
on the Union of India, the presence of others is unneces- 466 sary. Union of
India would have merely to give effect to the decision of this Court.
Therefore, the absence of those who may by our interpretation be adversely
affected in the facts and circumstances of the case need not be necessarily
here and if the relief could have been granted, the same would not have been denied
on the ground that proper parties were not before the court. But the second
reason why we should not examine this contention is that we are not inclined to
grant any relief and the matter ends there.
Having examined the matter from all angles,
we find no substance in the contentions raised on behalf of the petitioners and
therefore all the petitions are dismissed with no order as to costs.
S.R. Petition dismissed.
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