Case: Col. D.D. Joshi and Others Vs. Union of India and Others

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 promotionalin 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 otherheld 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 inis 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 asAn 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 suchAt 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 b e 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 eighteenappears 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.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 prescribe d. 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. I n 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 asabove 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."

Reasoning: 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 A MC 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 petitioners 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 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 earlierwas 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 person s 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 ser vice 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 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 w ho 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 unnecessary. Union of India would have merely to give effect to the decision of this Court. There fore, 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.