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 126975 L N Sinha Attorney General for India E C Agarwala and Girish Chandra for the Appellants In CA 175575
PP Rao MS Ganesh AK Ganguli and TV section Narasimhachari for the Appellants in Ca 175475
P Govindan Nair A K Sen Bishambar Lal Miss Munisha Gupta and Mrs Baby Krishnan for RR 1 2 in CA 175475 and CA 175575
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 ie 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 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
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
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
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
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 article 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
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
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 UPSC 25 The military recruits to Class I Service enter the Deputy Superintending Surveyor s hereinafter referred to as DSS 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 4c
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 LtRatio of the decision Colonels covered by Rule 4c and 1050 retires from the army only for the reason that they have attained the requisite age limit
Such persons under Rule 4d 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 4f
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 24S51 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 is a partial assimilation but a substantial separation persists
Once an Army Engineer always an Army Engineer is the gist
Absent integration article 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
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
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
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 GSI PWD 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
Some reports are sought to be relied on in this connection
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
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 SS 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
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 SS and therefore can skip the lower position of DSS
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 articles 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 52 53 55 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 article 14 nor article 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 article 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 SOS 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 article 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 DSS 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 SS and not as DSS
Thus the total number of vacancies each year at the DSS 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 SS level but by a calculation of the total number of posts at the SS and higher levels in the 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 SS 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
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
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 article 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 section Gupta s case1 where article 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 restored1 We have to take an overall view to determine whether the rule now framed by the Government to determine seniority is just and fair2 A total conspectus does not persuade us that anything grossly unfair has been perpetrated
Absent fusion into one integrated service article 16 is not attracted in a proposition entrenched by precedents
In Shujat Ali s case3 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 case4 to reinforce our view The principles on which discrimination and breach of articles 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 separate5 1063 No principle under article 14 or article 16 is involved if such an integration was not brought about for considering the past history of the two services and the differences existing between them Government could not be required to fuse them into one upon any principle emanating from the two Articles1 Going backwards still further we find Ayyangar J in Joginder Singh2 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 article 14 or article 161
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 articles3 Likewise in Jaisinghani4 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 s5 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 decision1 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
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 article 14 or article 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 case1 and the tail piece of Triloki Nath Khosa s case2 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
Subba Rao J hit the nail on the head when he cautioned in Lachhman Das vs State of Punjab1 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 case2 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 articles 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 article 14 means only equality among equals a self evident statement without solemn pronouncement
Mr Justice Subba Rao in Lachhman Das s case1 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 Nath2 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 Nath3 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
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 SS 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
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 processual 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 article 141 should be an exception to the conventional rule of costs following the event unless other circumstances warrant
So no costs


Summary:
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
vs Union of India  Ors  at 481 Ram Lal Wadwa  Anr
vs The State of Haryana  Ors  at 635 State of Punjab vs Joginder Singh 1963 Supp
2 SCR 169 at 189 section G Jaisinghani vs Union of India  Ors   Ganga Ram  Ors
vs Union of India  Ors
 at 488 referred to
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