.. -. , ..

COL. b.D. JOSHI AND OTHERS

UNION OF I"NDIA AND OTHERS

/ March I, 1983

[D.A. DESA1 AND V. BALAKRlsHNA ERADI, Ji.]

Antedating the com1nission-Meaning of-Army Instruction NO. 78/78 . dat~ 4th November 1978 prescribing on upward revision in the period.of benefit by ante-dating, whether discriminatory and violative of Articles 14 and 16 of the Const/ .. '/ution--Army lnst'ruction No. 78/78 clause (J) and Note appended there(o scope of

lntrpretation of Statutes-NeceSsary-party-Joinder of

.. i-..

D.D. JOSHI V. UNION 449

HELD: 1. Reckoning .seniority ii; i service from a dee1ned date of com .. _ mission in respect of the officers with P.O. oualificatil1ns or previous service in_

Civil hospital etc. as prescribed in. the Anry Jrstructif'n is--styled as benefit.ofante-dating. [455 F-G] '

{ . . .

2.1. lf the Jan'guage ofa provision is clear, un!rnbiguous andintelligibJe, . 91 and does not admii of two meanings; tbe court is b6und to construe in its Ordinary sense because it is Welt recognised. that lat'!guage used speaks the mind and reveals the _intention of the framers. If the language of the statute is clear and f unambiguous and if two interpretations are not reB!Jonably possible it would be -

wrong to discard the plain meaning_ of the words used in order to meet p. possible .~ iniustiee. In such a situation, it would_be impermissible to call nnraid atiy exter.,,.. nal aid of.construction to find out the hidden meaning. The cardinal rule off . construction of a statute is that it _should-be construed according to the intention

- C

xpressed in the statute itself. [457 D-E]

,.• \ Commissioner of Income Tax Madras v. Mfs. T. V. Sundaram lylngar (P)

Ltil. [1976] I S.C.C. 77@ p, 84-85; Capper v. Beldwin [1965] 2 .Q.B. 53@ 61,

ref•rred to. •

2.2.' On a plajn grammatical construction of para 6 (a) (b) and (c) of Arf"y Instruction ~O. 74,_ of 76, it js clear t the bCnefit of ante-dating the t... commission will be available-at the time of being comm\ssioned as a'"n officer of the Army Medical Corps i.e. at - the_ tilne of .ppointment a_nd the quali- ·

ficatiOns must havebeen acquired prior tojoi_niilg the AMC. The expressions uafthe tiine of appointment" and "higher qualifications obtained -prior fo appointment" provided aterminus a quo for the eligibility of the benefit when1he benefit of abte-dating can bo gnj0ted and claimed. [457 C-D]

!---

"!I

- i- 2.3. The _object, ihe purpose and the intention_ und~; lying the provisions waS to compensate for. the extra time, money an~ energy spent in acquiritt.a post gradoa(e qualification equipped with which the men enter serVice and this object, purpose or h:itention uriderlying. _the provision'_ is clearly manifest in the language u&ed in the rele:Vant "paragaphs of the Army, Instiuetion bearing on the subject by providing that eligibility f01'R:aitiin_g the benefit of S:nte-datii:ig the commission, namely, having a post gractllate qualification shall be taken into account at the time of eoJering the service. Two pre-conditions have to. be fulfilled before the benefit can. be acquired i.e. (!) the candidate must have a post-graduate qualification-obtained prior to appointment, and <Z> that such _qualificatiop- must have been acquired and inuSi be available at the time of appointment. TberefOre, not, only the language of terelevant provision IeaVes no room for doubt 'but.the object and intention underlying the provision clearly buttressed the meaning of the provision. [458F-H, 459 A] . ·

3.1. The enlarged period of ante-dating \he commi; sion introduced from April 1;1978 and made admissible to only those ehtering on or after 1-4-78 cannot be aid to be either violative of Article 14 or 16 of the Constitotlon. [463 D-E]

' . '

. ' II'~ ,

'•' .. ,

SUPR8MB COURT REPORTS

(1983] 2 S.C.R.

3.2. An employer has a right to grant incentive for attracting better

qualified persons to the serviČ offered by the empJoyer.

If the incentive is devi

sed with a view to offering inducement to thoso wavering whether to enter a

certain service or not those who were already in service and had that benefit once, cannot be heard to say that this new incentive should be retrospectively enforced

so as to give them the same benefit.

No incentive can be retrospective, though

conditions of service can be retrospectively made. [ 460 F-H, 461 B]

3.3.

The Note appended to the amended Army Instruction No. 78/78

providing the benefit of enlarged period o:f ante-dating being made available to

new entrants only will have no pernicious tendency of dividing a homogenous

class.

In the matter of incentive offered at the time of entering the service, there

is no homogenous cl;; tss. The new comers may become members of the class

after being commissioned.

They are outside the cadre before entrance.

They do not belong to the class of existing members of the AMC. They derive the benefit

of ante-dating simultaneously with becoming the members of AMC.

They do no t

get any benefit denied to others after becoming the members as benefit of ante

dating is available at the time of appointment only.

Recruitment and Retire- .

ment arc a continuous process. Those who are recruited at the relevant time will

have to satisfy the conditions for recruitment then in force and would be entitled

to tho benefits that may be available tO'the now entrants. [462 B-D, F-Gl

3.4. In Union of India and Anr. v. M/s. Parameswaran Match works etc. [1975] 2 SCR 513, the Supreme Court held that the choice of a date as a basis of

classification cannot always be dubbed as arbitrary even if no pardcular reason

is forthcoming for the choice unless it is shown to be capricious or whimsical in .

the circumstances of tho case.

In the present case, the object underlying the

benefit extended to the new entrants determines the choice of date.

Inducement

for attracting fresh recruits from the market must come into force by a certain

date.

The employer can legitimaiely determine keeping in view the demands of

public service, from which date the inducement will be available.

In such a

situation choice of date is not wholly arbitrary and has not the tendency to

divide a homogenous class.

There is no differential treatment.

The district

possibility is that there .would be vertical splitting of a homogenous class.

[462 H, 463A-D]

3.S.

The benefit of ante-dating was devised long before tho recommen

dations 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 commis ..

sioncd in the AMC.

A subsequent enlargement of the period, not pursuant to

the recommendalion of the Pay Commission and held out as .in inducement for

recruitment.from the market cannot be claimed as a matter of right by those who

have already availed of tho benefit of earlier occasion. [ 464 AC]

Purshotam Lal Dhi111ra and Ors. v. Union of India, AIR 197č SC. 1088.

referred to.

3.6.

The contention that limited retrospectively is given by impugned

Army Instruction, is not correct.

It is jefact a case of marginal adjustment

showing fair play in action. (465 E-F)

• .

4. Impleading or proper and necessary parties to an adjudication will arise 9nly in ciises of individual claim or claim of seniority by one 1>erson against specified others, but 'a <\uestion of iiiterpretation could be given because it would be binding on the Union. of India, the presence of others is unnecessary. Union of

ldia would have merelY to give effect tothe decision of the Supreme Court. Therefore, the absence of'those who may by the Supreme Courts' interpretation o a provision be adversely , affe9ted 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

Co'urt. (465 _GH, 466 ABJ

ORIGINAL JURISDICTION ; Writ Petitions Nos. 3685-91 of 1982 and S636 of 1980.

(Under article 32 of the Constitution of India).

M.K. Ramamurthi and Mrs. Indra Sawhney for the Petitioners.

' N.C. Talukdar and V.B. Sahariya and Miss A. Subhashni for the Respondents •

The Judgment.of the Court was delivered by

' '

, DESAI, J. Commisioned Officer belonging to Army Medical Corps_ ('AMC' for sb<Jrt), 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 promolional prospects.

' ...

. Petitioner~ in 'the first batch of petitions were .granted

commssion in AMC beiween 1954 and 1963. Petitioner in the second petition ascommissioned'as a regular offier in AMC on

Math IS, 1'970.

There are in all 154 commissioned officers induding the petitioners belonging to AMC who are similarly .situated and who according to the petitioners suffered the same discrim.inil= tory treatment. The petition is not. in a representative capacity.

etitioners assert that the decisibn in this group of petitions would affect roughly-147 other officers.

Petitioners held post graduate qualifications in different bran- J; ' ~· . ches of medical . science and some of them held an approved hole

time appointment in a recognised civil hospital for a perivd of sb1 .11wnths or 111ore prior to being commissio!Jed in l\MC. ' ' - - . .. .

\,- -

452 SUPREME COURT REPO!l.TS [1983] 2 s.c.R.

There is a provision for giving the benefit of ante-dating the commission for varying' periods, if the commissioned officer at the time of entry fulfils prescribed qualification. The earliest available . reference is to Army Instruction No. 31/S/48 dated August 16, 1948 which provided !Ill under : ·

"(a) An officer who has held an approved wholetime appointment in a recognised civil hospital for a period of six months or more will be eligible for an ante date of six months.

(b) A candidate will be eligible for the grant of. an ante-Jate 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 Conucil, provided that the candidate lias to atten.d a course of Instruction in a recognised institu tion for at least 9 months to qualify for such Diploma. ·

(c) At the time of appointment a, candidate will be eligible for the grant of an ante-date not exceeding 12 months in respect of higher qualifications obtained prior to appointment. This will normally be granted for qualifications such as Doctor of Medicine, Master of Surgery, Fellow of the Royal College of Surgeon_s, Member of the oyal College of Phy, sicians or an equivalent qualification obtained by examination from

recognised Universities or colleges.

(d) In the c_ase of a candidate who is eligible for an antedate 11nder. more than one of the preceding subparagraphs, the maximum period of ante-date will be limited to eighteen months."

It appears that prior to December 31st, 1965 maximum period - ' of ante-dating benefit was I. I /2 years which was reduced to one year from J11nuary I, 1966. It was enlarged to l!laximum 2-1/'4, years from April I, 1978. Thus the period varied but-. the conditions for eligibility remained more or less constant.

1 . .

~·

. )

~· }'-'•.

',,.

_,,,_

By Army Instruction No.74 of f976, the period of ante-dating under 'clauses (a), (b) & (c) remained unchanged but the period under c, lause (d) was raised to 18 months in the aggregate. '

By the impugned Army Instruction No. 78 of 78 datd.

November, 4, 1978, a further upward revision. 1n 'the period of antedating the commission by amending.Army Instruction No. 74 of 76 was.prescribed: By ihis ainendment; the period prescribe<! in . clause '(a) above .tmained unchangd. The jleri6d of antedating

. prescrbed fo clause (b) wa.s revised from 6' .months to 12 , months

aad the period of . instruction was revised from 9 months to 12 months. In clause (c),· !he period of 12 months was

revisd to 2 years and in clause (d), the aggregate was upward revised from 12 months to 2-1/2. years. A note• wa~ apptpded to thjs amendment which according to' the petitione_rs introduces

the discrimination. It reads as u°'der :

"The above provisions are effective w.e.i'. l.4. 78. How ever, the seniority of Officers who joined with PG. quali

ficatios during 1-1/1/2 yers prior to 1.4.78 will be pro.: tected by grant of requ; site antedate so that they do not , become junior to officers who have j6ined later with equivalent PG qualifications."

.Petitioners contend that denial ofthe oenefit of longer period. . ofantedating the commission introduced by the amended Army Instruction No. 78 qf 78 which bec!lme effective from April I, 1978 to those. com.missioned officers wbo bad requisite post graduate qualificatiOns when they were commissioned prior to ApriLI, 1978, . is grossly discriminatory and the choice of date is, arbitrary It is , alleged that tbose, qfficers wbohad post grad11ate qualificati6n at. the time of being commissioned in AMC whether they were commisioned prior lo J.4.78 or thereafter for the purpose of conditions of service and treat111ent from one homogenous class and by the

arbitra~ choice of date, this homogenous lass is divided to pick and choose a, rbitrarily for the benefit of longer period of antedating , the commission and the classifieation is not based on any intelligble tlifferentia and if tlti!re b~ any, it does not have any rational nexus , to the objects sought _to b~ achieved . ., It is further alleged that the

choice of date for gtaoling the be\lefit .being thoroughly' arbitrary , and is not explainable on any ratidnal hypothesi.s a.nd therefore, on ·

\hes•. l!l'ounds! the denia, I of. be11ef\t of extended period of a, nt~

;..- .

. Ii

_-_..,

' .. , .

IJ

454 SUPREME Cl'URl REPORTS (19831 2 s.c.it, .

dating to those who were commissioned prior to 1.4.78 is discriminatory and ii-is a denial of an equality of opportunity in the matter of employment and thereby violative of Art. 16 of the Consti.tutfon. It is alleged that in the matter. of ante-dating the commissson, there is no difference between those who had post graduate qualification when , commissioned prior to 1.4. 78 and those who were commissioned subsequent to that d11te. and therefore, the earlier entrants havebeen treated with an evil ' eye and unequal hand and therefore this trea_tlilent is violative of the guarantee of _equality in the !Jlatter of employment.

Petitioners have averred in the petition that the benefit of antedating the comfuission to thase . who were commissioned after obtaining post graduate qualification irrespetiye of whether they hav .. commissioned prior to a certain date or subsequent to that date; in _.the matter of conditions or" service, cannot differently treated and they are entitled to same treatment irrespective of the date on whih the commission was granted.

In the return filed on behalf of the respondents, it was specifcaily contended that the benefit of ante-dating is granted at the the time of being commissiened in AMC and it is an incentive for attracting persons who applied for being commissioned after obtaining post gradute qualification, It is further averred that if

ven the old commissioned officers are given benefit of largr . period of ante-dating,. it would adversely affect a 1arge number of officers of the AMC and ·.would disturb the seniority of number of, personit;. It was. further alleged that promotions are given on the basis of seniority.

Il was' averred that thilse commissioned offiers of AMC who have . \ . - either acqµired thi, , post graduate qualification while in the. service or who were merely M.B.B.S. at the ti"me of being commissioned and tho_se who had post graduate qualification when cQ.111 missioned are all brought on a common seniot'ity list and on the basis of this ;:ommon seniority list, promotion to the higber rank is given. It was therefore, contended that if the earlier", entrants. are now given benefit of longer period of ante-dating, it would disturb the seniority and promotional prospects -of a"large number of persons and this is unjust and unfair. Number, of charts have been annexed to the written submi!; Sions by the learned Additional . ' , Solicitor General showing that giving of benefit of longer perfod_ of

~ .·

;.,

antedating the commission to the petitioners and those similarly situated would give them an underserved advantage. of jumping over a number of senior officers and the promoticlnal\ prospcet of many such persons would be adversely affected; The note at the foot of the Army Instruction No. 78 of 78 was explained by saying that since by the impugned Army Instruction the maximum period o.f ante-dating the commission is revised to 2-1/2 'years, if those , just above the marginal line meaniq, g those who were commissioned shortly prior to 1.4.78, if not protected, would be adversely affected by those entering just after the date and would score a march over the earlier entrants and to protect them, it was provided that the seniority of officers who joined with PG. qualification during the t .years prior to 1.4.78, will be protected by grant of requisite antedate so that they do not become junior to officers wbo have joined later with. equivalent P.G. qualifications. It was said that there is raiionale behind the note and it is incorr, ect to say that limited retrospective effect is given to the impugned Army Instruction No. 78 of 78.

At the outset, it is necessary to clear the grouhd by understand fog what constitutes ante-dating the commission. It appears that the basic minimum entry qualification for being com-· missioned in AMC is graduate degree such as M.B.B.S. Those who enter service with post graduate qualification such as post graduate cjiploma or post graduate degree or tho.se who enter after )laving held an approved whole time appointment in a recognised civil hospital for a period "of not less than 6 months will .be given a deemed date of commission prior to the actual date of commission depending upon the period for which under the relevant Army Intruction such person is qualified.

In other words, such person would he deemed to have been commissioned at a date earlier than the date on which be is actually com

missioned.

This deemed date would be the date on whic!i person concerned is deemed to have been commissioned and his sniority would be reckoned from such deemed date. This is what is styled in the relevant Army Instruction as benefit of antedating.

' ' The commissioned officers in the AMC fallinto three recognised divisions : (l) those who enter with post graduate qualification,

(2) those who acquire post graduate qualification after being com- .missioned, and (3) those w)lo entet V.1!1vfB.B.~ .. a.nd n.eve£ acquire

. 456 SU!'RBMB COURT Rl!POltTS (1983) 2 s.c.•

any further post graduate qualification. It is not disputed that all the three are borne on the common seniority list because they formed one class of commissioned officers in AMC. Further upward promotion is generally based on this common seniority list.

The benefit of ante-dating is given to those who enter AMC with post graduate qualification and the benefit of an'ie-dating the commission is given at the time of bring commissioned and not later on. The learned Additional Solicitor General pointed out that this benefit of ante-dating commissions is in vogue from 1948 but the period has varied according to the decision of the Government of India to provide incentive for entering AMC depending upon market conditions of recruitment. It appears that prior to December I, 1965, maximum ante-dating admissible on acount of post graduate qualification and for whole time hospital appointment was It years.

From January I, 1966, it was reduced to one year. Government of India was again approached for enlarging the period of ante-dating admissible on account of the post graduate qualification. Accepting the proposai, the maximum period for ante-dating the commission was revised from one year to 2! years with ~!feet from April I, 1978 with the marginal adjustment to avoid any undeserved benefit being given to the later entrants over earlier entran1s to be adjusted as set out in the note appended tothe impugned Army Instruction. It was however, strenuously urged that this benefit of ante-dating was admissible at the time of appointment because it was an incentive and not a benefit being conferred for all those who have already entered AMC.

This submission is borne out by the language iof the relevant Army Instruction. ~

Let us turn to the Army Instruction dated August 16i-.1948.

Para (b) which is relevant for the present purpose provided that 'A candidate will be eligible for !he grant of an ante-date not exceeding 6 months if he, at the time of selection is in possession of a post graduate Diploma etc.' The words 'at the time of selection' clearly connotes the stage when benefit is admissible and reveals the object underlying the benefit of ante-dating.' Similarly para 6(b) of Army Instruction No. 74 of 76 dated September 18, 1976 clearly provides that 'a candidate will be eligible for the grant . of an ante-date not exceeding 12 months if be, rat the time of

Pf pointment is in p,~s~"·!(on pf a post 1Jradu11t~ Di pl am°' in an:y

branch ........................... ' Again attention should be focussed, on the expression 'at the time of appointment'. By the impugned amendment by Arllly Instruction No. 78 of 78 dated November 4, 1978 wh11t is revised is the period, in eara 6(b) and 6(e) raising it to 12 monhts and 2 years respectively .retaining the condition of eligi bility, namely, "•at the time of appointment:'. )n this onnection, one can advantageously refer to para 6(c) of Army Instruction No. 74 of 76 whih provided that 'at the time of appointment, a candldatc wit! be eligible for grant of antedate not. exceeding 2 years (now revised) in respect of higher qualifications obtained prior to appointment'. The expressions 'at the time of appointment' and 'higher qualifications obtained prior to appointment' provided a terminus a quo for the eligibility of the benefit when the benefit of ante-

' dating can be granted and claim:d. On a plain grammatical construction .of para 6(a), (b) and (c) of Army instruction No .. 74 of 76, there is no room for doubt that the benefit of ante-dating the commission will be available at the the time of being commissioned as an officer in AMC, i.e. at the time of appointment and the qualification must have been acquired prior to joining AMC. If the language of a provisoli is clear, unambiguous and intelligible, and does not admit of two meanings, the Court is bound to construe it in its ordinary sense because it is well recognised that language used speaks the mind and reveals the intention of the framers. If the languliie of the statute is clear and unambiguous, and if two interpretations are not reasonablly ppssible, it would be wrong to discard the plain meaning of the words used in order to meet a possible injustice. (See The C.r.r., Madras v. M/s. T.V. Sundram Iyengar (P) Ltd.(1). In such a situation, it would be impermissible to call in aid any external aid of constrµction to find out the hidden meaning. The cardinal rule fdr construction of a statute is that it should be construed according o the intention expressed in statute itself (see Capper v. Bledwin).('l) It would be presently pointed out that the 1 underlying intention object and purpose for granting the benefit of antedating clearly bears out the meaning deduced by literal construction.

It is therefore necessary to go into the genesis of e.xtending this benefit of ante-dating the commision. It is well known those who I

(!) [1976] ! S.C.C. 77 at pp. 84-85.

(2) (1965) 2 Q.B. 53@ 61.

lil

458 slJl'tl.EMil COIJRT UPOli.ts [ 1983) '.). s; c, R.

, pursue study for higher qualification in any branch of medicine after acquiring the graduate degree had to put in formerly two years and now nearly three years in acquiring post graduate qualification. 'Jf the employer meaning the Union Government would get the benefit ,, f person who bas put in 2 to 3 years of advanced learning and,· training and is, therefore better equipped, he or she must be compensated in some measure. There would be qualitative

differnce in the service rendered by a graduate entrant and an entrant with post graduate qualification. The time, money and energy expended in acquiring higher qualification is sought to be compensated by grant of ante-dating benefit, therefore the benefit of ante-dating was devised and has ben in vogue .. Obviously, this . benefit is to be given at the time of entering service. The recognition for the time, money and energy spent by an entrant with postgraduate qualification, compared to a graduate who enters AMC because of this minimum eligibility qualification is implicit in devising this benefit of ante-dating the commission. If the Union Government were to treat one who has the graduate degree on par with one who bas a post grduate degree both are brought on the common senirity list for further promotion, ol>viously. the person who spent sometime in acquiring post graduate\ qualification, the

benet of which w0uld be available to the employer, would be at a comp'lirative disadvantage in the matter of seniority and futnre promotion compared to one who came with only graduate qualification.

It is this difference between a graduate entrant and entrant with post graduate qualification which was sought to b~ compensated by granting .the benefit of ante-dating the commission. The object, the puprose and the intention underlyh1g the provision was to compensate for the extra time1 money and energy spent in acquiring post graduate qualification equipped with which the men enter service and this object, purpose or intention underlying the provision is clearly.manifest in the language used in the relevant paragraphs of the Army Instruction bearing on the subject by providing that eligibility for gaining the benefit of ante-dating the commission, namely, having a post graduate qualification shall be taken into account at the time of entering the service.' Two pre-conditions have to be fulfilled before t~.e benefit can be acquired i.e. (I) the candidate must , have a post-gradute qualification obtained prior to appointment, and (2) that such qualification must have been acquired and must , b.e available at the time of appointment. Therefore, not only the language of the relevant provision leaves no room for doubt but the

.-{ I

' .

.}-

. '

.. r

D.D. JOSHI v. JOSHI (Desai, J.) 459

object and intention underlying the provision clearly buttessed the meaning of the provision . )

If the benefit of ante'dating the commission is not to be granted at the time of enacting the AMC to those who enter with post graduate qualification, bow would their case be differentiated or <listinguished from those who acquire post graduate qualification while in service.

There is no qualittive difl'erence in the relative merit of a person entering service having acquired post graduate qualification and one who acquires the same after entering the service, of course, since. after acquiring the qualification. Yet the benefit of ante-dating is given to th'ose who enter AMC with post graduate qualification, and not to those who acquire such qualification after being commissitlned. It may . be recalled that at present out of approximately 4,400 commissioned officers of AMC, there are about 154 commissioned officers who were commissioned after having acquired post-graduate qualification. As against this there are about 1227 officers of the AMC who acquired post-graduate qualification while in service. The quality of serviee rendered by both having identical qualificatfon would not be materially different, and yet in the case of first, the benefit of ante-dating the commission is extended by the relevant Army instruction .while in the case of !after, no such benefit is given. This clearly establishes that the benefit of antidating the. commission is to b• made available only to those who bad acquired post graduate qualification before being commissioned into the AMC. The rece'pient of the benefit gets seniority over earlier entrants and tbe seniority is determined; in the absence of another rule from the date of entry in the service or cadre. The seniority so acquired will enable such persons to be consideed for promotion earlier than those over : whom they score a march by ante-dating the commission. It is thus abundantly clear that the benefit of ante-datini the commission is available only at the time of entering the AMC. A subsequent enlargement of the benefit cannot be restrospectively made available to those who had already entered service and once availed of the benefit because their case thereafter would not be different from those who acquired post-gradate qualification after being commissioned as members of AMC.

It was strenuously contended on behalf of the petitioners that 8 all commissioned officers of AMC who entered AMC after acquiring post graduate qualification formed one homogeneous class and by

SUPREMB COURT RBPORTS [1983] 2 s.c.R.

artificially selecting the date of April I, 1978 for entitlement of enlarged period of ante-dating compared to those who. had entered prior to that date has the pernicious tendency of dividing a homogeneous class into two compartments. It was urged that this classification is not based on any •intelligible differentia and it has no rational nexus to the objects sought to be achieved by enlarging the period of entitlement. It was therefore, contended that the note at the foot of-the amended Army Instruction No. 78/78 which introduces discriminatory treatment in the matter of longer period of ante-dating the commission by denying the same to.those who entered prior to that date and extending it only to those who

enred subsequent to that date,. is violative of the guarantee of equality enshrined in Article I 4 and is a denial of equality of opportunity in the.matter of employment as guaranteed under Article .16 11ll therefore, being unconstitutional deserves to be struck down. A good number of deCisions of this Court were read to us. The decisions on the scope and content of Article 14 are legion and to recall and of them would be merely an 'idle parade of familiar learning'.

It is well-settled and not controverted on behalf of the respondents that Article 14 forbids class legislation but does not forbid classification for the purpose of legislation. It is equally well settled that in order to meet the least of Article 14, (i) the classification must be

bad on intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) the differentia must have a rational nexus to the objects sought to be achieved by the legislative or executive action under challenge.

Does the enlarged period of ante-dating the commission made admissible to those who enter AMC after a certain date denying the same benefit to those who bad already entered AMC prior to that date, has the pernicious tendency to divide a homogenous class based on arbitrary criterion and not relatable to any intelligible differen(ia.

One has to remember that an employer bas a right to grant incentive for attracting better qualified persons to the service offered by the einployer. If the i!lcentive is devised with a view to offering induce-· ment to those wavering whether to enter I\ certain service or, not, it is difficult to accept that .such incentive should also be extended to those who have already entered service and have. already taken full advantage of the benefit available at the time of entering service. In this case, it is clearly made out that the benefit of enlarged period

b.I>. msm v. UNION (Desai, J.) 461

of ante-dating the commission for persons joining AMC after having . acquired post-graduate qualification was given as an incentive with

a view to attracting more persons who have already acquired post graduate qualification. Those who were already in service and had that benefit once, cannot be heard to say that this new incentive should be retrospectively enforced s~ as to give them the same benefit.

It is difficuli to conceive that an incentive can be retrospective though it is indisputable that conditions of service can qe restrospectively made.

And the unfairness of the approach of the petitioners becomes manifest from the fact that while maximum period of antedating prior to December 31, 1965 was It years when petitioners entered AMC, which was reduced to one year effective from January

I. 1965, none of them ever suggested that this b.eing a condition of service rbust uniformly apply to those who would be covered by the conditions of eligibility and thereafter the period must be reduced.

But subsequently when the period of ante-dating was enlarged by the impugned Army Instruction which became effective from April I, 1978, it is now clamoured that this benefit must be extended to those who have entered AMC way back as early as November, 1949 and in the process give the petitioners and similarly situated persons a march over those who are already seuior to them in the common seniority list.

The degree of unfairness of the claim of petitionerscan .be demonstrably established by working out the position ofsome petitioners on the footing th~ each one oft.hem is entitled to longer period of ante-dating the commission. Isl petitioner Col. D.D.

Joshi was commissioned on July 25, 1954 and after obtaining the F benefit of ante-dating then aviailable, he was put in the seniority list as if he bad been commissioned on January 25, J953. Now if he is given the benefit of ante-dating the commission by 2t years, his deemed date of joining the AMC would be January 25, 1952. Io the process, he would scope a march over 21 con-missioned officers who are already .senior to him in the seniority list. This. is equally true of G all the 7 petitioners but in the case of petitioner No. 3-Col. V.S.

Sharma, he would score a march over 41 commissioned officers already . senior to him. One M.B.L. Sexena who is not one of the petitioners but who is similarly situated, if now held entitled to benefit of 2t years antedating, he would jump over 50 commissioned officers H senior to him. In the case of petitioner No. 7, he would supersede ' 95 o!fi9ers already senior to him and a good number of thellj are

.. j .. " • -' ' '

SUPRBME COURT REPORTS (1983] 2 s.c.R.

persons who had acquired post graduate qualification, of course, after joining the service. Could one ever think of an incentive giving such an undeserved advantage ? The answer is obviously in the negative.

The next question is does this incentive divide a homogeneous class? In the matter of incentive offered at .the time of entering the service, there is no question of a homogeneous class. The new comers may become members of the class after being commissioned.

They are outside the cadre before entrance. They do not belong to the class of existing members of the AMC. They derive the benefit of ante-dating simultaneously with becoming a member of A, MC.

They do not get any benefit denied to others after becoming.the members as benefit of ante-dating is available at the time of appointment. There may be an enlargement of the cadre. There would be retirements. Recruitment and retirement are a continuous process.

Those who are recruited at the relevant time will have to satisfy the conditions for recruitment then ip force and would be entitled to the benefits that may be available to the new entrants. If the principle canvassed for on behalf of the petitioners is taken to the logical end, it would lead to a startling result. Suppose a rule is now made that only persons with post graduate qualification would be qualified for being commissioned iµ AMC, can anyone contend that as in the past mere graduates were recruited and therefore, ignoring the revised minimum eligibility qualification, a •graduate must be considered for recruitment. Therefore, in respect of benefits which are available for certain qualification at the time of entering the service, the same having been made available, a revision of the same at a. later date to attract fresh entrants cannot be retrospectively .claimed by those who had already entered service knowing full well the benefit then avail able.

Therefore, there is no substance in the contention that the note ppended to the; am., nded Army Instruction No. 78/78 providing the benefit of enlarged period of ante-dating being made available to new entrants only will have the pernicious tendency of dividing a homogeneous class.

It was then contended that the selection of the date April I, 1978 is thoroughly arbitrary and has no national nexus to the objects sought to ):le achieved ... Reliance was placed on Union of India & Anr. v M/s\Parameswaran. Match Works etc.(') In that case this Court

(!) [1975) 2 S.C.R. 573.

' '

quoted with approval the decision in Louisviile Gas Co. v. Alabama Power Co., (') wherein it was observed that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances of the case. In the present case, there is no division of a homogeneous class by the choice of the date. The object underlying the benefit extended to the new entrants determines the choice of date.

Inducement for attracting fresh recruits from the market must come into force by a certain date. The employer can legitimately determine, keeping in view the demands of public service, from which date the document will be available. In such a situation choice of date is uot wholly arbitrary and has not the tendency to devide a homogeneous class. 'we see no classification amongst those who enter AMC after acquiring Post graduate 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 fo force. There is no differential treatment. There is no division of a homogeneous class. The distinct possibility is that if petitioner's contention is accepted there would be vertical splitting of a homogeneous class. It is therefore, difficult to accept the contention that the note under the impugned atnended 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 recommendation which has promoted the Union of India to enlarge the period of ante-dating. It was urged that by limiting the benefit only to th'ose who would be commissio ned on or after April 1,11971, the respondents are guilty of according discriminatory t_reatment 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 makes recommendations and the Government accepts the same, it is bound to implement the recommendations in respect of all Government employees. And if it does not implement the report rellarding some employees only it

(I) 240 U.S. 30. gl A, IR 1973 S.(;. JQ88,

....

SUPRBMB COURT RBPOQTS

(1983) 2 S.C.R,

commits a breach of Arts. 14 and 16 of the Constitution. It is diffi cult to appreciate how this decision would help the petitioners.

The benefit \!If ante-dating was devised long before the recommendations of the Third Pay Commission were formulated and each petitioner got the benefit consistent with . the Army Instruction in force at the time of being commissioned in the AMC A subsequent enlargement of the period, not pursuant to the recommendation of the Pay Commission and held out as an inducement for recruitment from the market cannot be claimed as a matter of right by those who have already availed of the benefit on earlier occasion.

It was then contended that if extending the benefit of enlarged period of ante-dating to all ; irrespective of the date of entry would have the tendency of unsetting the seniority list, that should not weigh with this Court because on .such nebulous ground violation of constitutional mandate cannot be overlooked. Reliance was placed on General Manager, South Central, Railway, Secundrabad and Anr. etc. v A.V.R. Siddhanti &Ors.('). We again fail to see how this decision helps the petitioners. The fallacy underlying the submission is that this benefit of enlarged period of arite-dating is claimed as a condition of service uniformally applicable to all persons qualifying for the same ignoring the conditions under which it can be claimed.

The contention overlooks the basic condiiion subject to which benefit can be claimed and it is that it is available at the time of entering the service as a compensation for having a higher qualification compared to their simultaneously entering service with lower qualification.

And undoubtedly an inducement held out to future entrants, if ex· tended 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 hol ding post graduate qualifications today, may be having acquired the same after joining service but there being )lo 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 qualificatiolJ tllereby giving th~ . ptitioners an 11nfair

(1) [1974) 3 S C.R. 207.

~· ...

. ..J

D.D. JOSHI v. (Desai, !,) 465

advantage which ought not to be given, if approaching the matter 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 1-1 /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." It was urged that the provision in the note would benefit. some of those who joined with PG qualifications even prior to April I, 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 illustrtion would expose the fallacy underlying the submission. 'A' joined with PG qualification and six months full time service on 3 lst '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! years. 'B' tbongh 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 antedate 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 Ia.truction. 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 peti tioners 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 conter.tion for two reasons : (i) that the decision in General Manager, South Central Railway Socundrabad 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 \ljl)ding on the f!ni()l! of India, \h~ presence of q\brs is 1111n~~~~"'

SUPREME COURT REPORTS [ 1983] 2 s.c.R.

sary. Union of India would have merely to give effect to the decision of this Court. Therefore, the absence of those who may by our interpretation be adversely affected in the facts and circumstances of the case need not be necessarily here and if the relief could have been granted, the same would not have been denied on the ground that proper parties were not before the court. But the second reason why we should not examine this contention is that we are not inclined to grant any relief and the matter ends there.

Having examined the matter from all angles, we find no subs tance in the contentions raised on behalf of the peiitioners and therefore all the petitions are dismissed with no order as to costs.

S.R.

Petition dismissed.