COL. D.D. JOSHI AND OTHERS 7 a UNION OF INDIA AND OTHERS / March I, 1983 os
“32 - ED.A. DBsAt AND V. BALAKRISHNA ERaDI, JJ.]
Ante-dating the commission—Meaning of—Army Instruction No. 78{78 ” dated 4th November 1978 prescribing an upward revision in the period of benefit by .
. onte-dating, whether discriminatory and violative of Articles 14 and 16 of the Consti- “fution—Army Instruction No. 78/78 clause (d) and Note appended thereto scope of prs Interpretation of Statutes—Necessary party—Joinder of. - kL oe Under the Army Instruction No. 31/5/48 dated August 16, 1948, appli- -
! ~ —*s gabla.to the Army Medical Corps,: the commissioned officers appointed to the ' ee service were held’ eligible for the benefit of ante-dating their commission at the . OL time of entry into AMC to the extent as follows : (a) he held an approved whole : "
a time appointment in a'recognised civil hospital for a period of slx months or more .
- _ a0 ante-date for six “months; (b) he hada postgraduate Diploma requiring 9 ‘ ‘months to qualify the same, an antedate not exceeding six months; (c) he had any ;
E | post graduate higher qualification, an antedate for a period of twelve months and we rs subject to the maximum limit of 18 months; (d) if he is covered. by (a-++b+c) or (a+b) or (a+c) or (b-+c) above. This was reduced to twelve months from 1-1-1966 but enlarged to thirty months from 1-4-78 by the impugned Army Instruction No. 78/78 dated November 4; 1978. By the said Instruction, while the concession - oy at clause (a} remained unchanged ante-dating under clause (b) was revised to 12 " * months if the course for Post Graduate Diploma involved 12 months study and F ‘under clause (c} the ante-dating was raised to 24 months. Under the Note appen-ded, not only the provisions were brought into. force with effect. from 1-4-78 » but the seniority of officers who joined with Postgraduate qualifications between ; 1-10-76 and 31-3-78 were protected by grant of requisite ante-date so that they do Lo. ‘not become junior to officers joining on or after 1-4-78.
The petitioners who joined AMC between 1954 and 1963and on March -& 15, 1970 and who had Post Graduate qualifications in different specialities at the ; 4 ; time of obtaining Commission, being aggrieved by the amendment introduced by . Army Instruction 78/78, challenged it under Article 32 complaining of discriminatory treatment in the matter of granting ante-dating benefit, which is directly linked to seniority and promotion Prospects, inasmuch as the choice of date, viz., , om 1-4-78 is arbitrary. oe is oo Dismissing the petitions, the Court, ws
D.D, JOSH ¥. UNION 7 449
HELD: 1. Reckoning seniority in service froma deemed date of com- _ Mission in respect of the officers with P.G. qualifications or previous service in~
_ Civil hospital etc. as prescribed in. the Any Instruction is-styled as benefit of.
ante-dating. [455 F-G]
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2.1. If the laniguage of a provision is clear, unambiguous and intelligible, and does not admit of two meanings, the court is bound to construe in its ordinary sense because it is well: recognised that Janguage used speaks the mind and teveals the intention of the framers. If the language of the statute is clearand « unambiguous and if two interpretations are not reasonably possible it would be wrong to discard the plain meaning of the words used in order to meet a possible injustice. In such a situation, it would be impermissible to call an‘aid any extery. nal aid of.construction to find out the hidden meaning. The cardinal rule of construction of a statute is that it should-be construed according to the intention expressed in the statute itself. [457 D-E}. °
5 Commissioner of Income Tax Madras v. M/s. T.V. Sundaram Iyangar (P)
Ld. [1976] 1§.C.C. 7@ p. 84-85; Capper v. Beldwin [1965] 2 QB. 53@ 61, referred to.
*
‘ ~ a
2, 2° On a plain grammatical construction of para § (a) (b) and (c) of
Army Instruction No. 4 of 76, it is clear that the benefit of ante-dating the &. -
** commission will be available-at the time of being commissioned as an officer of the Army Medical Corps i.e. at the time of appointment and the qualifications must have-been acquired prior to. joining the AMC, The expressions “‘at'the time of appointment” and “higher qualifications obtained prior to appointment” provided a- terminus a quo for the eligibility of the benefit when the benefit of abte-dating can ba ° erdnted and claimed. [457 C-D]
N
" 12.3. The object, the purpose and the intention underlying the provisions was to compensate for the extra time, money and energy spent in acquiritg 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 x
: . uged in the relevant paragraphs of the Army, ‘Instruction bearing on the subject by providing that eligibility fof gaiding the benefit of ante-dating the commission, namely, having a post graduate qualification shall be taken into account at the time of entering the service. Two pre-conditions have to be fulfilled before the
- benefit can. be acquired i.e. (1) the candidate must have a post-graduate qualifi-.
cation‘obtained prior to appointment, and (2) that such qualification must have been acquired and must be available at the time of appointment. Therefore, not. only the language of the. relevant provision Isaves no room for doubt but the object and intention underlying the provision clearly buttressed the meaning of the provision. (488 F-H, 459 A]. i ony
- 3.1. The enlarged period of ante-dating the commission introduced from - .. April 1,1978 and made admissible to only those entering on or after 1-4-78 cannot ” be. said to be either violative of Article 14 or 16 of the Constitotion. [463 D-E] - a vue
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450 SUPRBME COURT REPORTS [1983] 2 s.c.x.
3.2, An employer has a right to grant incentive for attracting better qualified persons to the service offered by the employer. If the incentive is devised with a _ view to offering inducement to those wavering whether to enter a certain service or not those who were already in service and had that benefit once, cannot be heard to say that this new incentive should be retrospectively enforced so as to give them the same benefit. No incentive can be retrospective, though conditions of service can be retrospectively made. {460 F-H, 461 B]
3.3. The Note appended to the amended Army Instruction No. 78/78 providing the benefit of enlarged period of ante-dating being made available to new entrants only will have no pernicious tendency of dividing a homogenous class. In the matter of incentive offered at the time of entering the service, there is no homogenous class. The newcomers 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 not get any benefit denied to others after becoming the members as benefit of antedating is availableat the time of appointment only. Recruitment and Retire-— Ment are a continuous process. Those who are recruited at the relevant time will have to satisfy the conditions for recruitment thcn in forceand would be entitled to the benefits that may be available to-the new entrants. [462 B-D, F-Gt
3.4. In Union of India and Anr.v. Mjs. Parameswaran Match works etc. [1975] 2 SCR 573, the Supreme Court held that the choice of a date as a basis of classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in . the circumstances of the case. In the present case, the object underlying the benefit extended to the new entrants determines the choice of date. Inducement for attracting fresh recruits from 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 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]
3.5. The benefit of ante-dating was devised long before the recommendations of the Third Pay Commission were formulated and each petitioner got the benefit consistent with the Army Instruction in force at the titne 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 Tecruitment from the market cannot be claimed as a matter of right by those who have already availed of the benefit of earlier occasion. [464 A-C]
Purshotam Lal Dhingra and Ors.v. Union of India, AIR 1973 SC. 1088, Teferred to,
3.6. The contention that limited retrospectively is given by impugned Asmy Instruction, is not correct. It is infact acase of marginal adjustment showing fair play in action. [465 E-F]
hey the Respondents.
D.D, JOSHI vy. UNION (Desai, J) 451
4. Impleading of proper and necessary parties to an adjudication will arise only in cases of individual claim or claim of seniority by one person against specified others, but a question of interpretation could be given because it would be binding on the Union of India, the presence of others is unnecessary. Union of India would have merety to give effect to the decision of the Supreme Court.
Therefore, the absence of those who may by the Supreme Courts’ interpretation o .
a provision be adversely,affected in the facts and -circumstances of the case need not be necessarily here, and if the relief could have been granted the same would not have been denied on the ground that proper parties were not before the Court. (465 G-H, 466 A-B|
ORIGINAL JuRISDICTION : Writ Petitions Nos. 3685-91 of 1982 atid 5636 of 1980. ~ oo ”
(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 Judgmentof the Court was delivered by
. Desal, J. “Commisioned-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 discri- winatory treatment in the matter of granting antedating benefit which is directly linked to seniority and promotional prospects.
, “Petitioners in the first batch<of petitions were granted commission in AMC between 1954 and 1963. Petitioner in the second petition was commissioned’as a regular officer in AMC on March t5, 1970. There are in all 154 commissioned officers includ-
- ing the petitioners belonging to AMC who are similarly situated ‘and who according to the petitioners suffered the same discrimina- tory treatment. The petition is not. ina representative capacity.
_ , Petitioners assert that the decision in this group of petitions would affect roughly -147 other officers. |
Petitioners held post graduate qualifications in different bran-
~ ches of medical science and some of them held an approved wholetime appointment in.a recognised civil hospital for a period of six Months or more prior to being commissioned in AMC.
452 . SUPREME COURT REPORTS 198312 scr,
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. 31/8/48 dated August 16, 1948 which provided as under :
“(a) An officer who has held an approved wholetime appointment in a recognised civil hospital for a period of six months or more will be eligible for an antedate 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 Conucil, provided that the candidate has to attend acourse of Instruction in a recognised institution for at least 9 months to qualify for such Diploma, ©
(c) At the time of appointment a candidate will be eligible ' for the grant of an ante-date not exceeding 12 months , in respect of higher qualifications obtained prior to appointment. This will normally be granted for qualifications such as Doctor of Medicine, Master of — Surgery, Fellow of the Royal College of Surgeons, ’ Member of the- Royal College of Physicians or an Tad equivalent qualification obtained by examination from recognised Universities or colleges.
(d) In the case of a candidate who is eligible for .an antedate under more than ‘one of the preceding sub-para-. graphs, the maximum period of ante-date will be limited to eighteen months.”
It appears that prior to December 31st, 1965 maximum period ~ of ante-dating benefit was 1. 1/2 years which -was reduced to one. year from January 1, 1966. It was enlarged to maximum 2-1/2 - years from April 1, 1978. Thus the period varied but: the conditions for eligibility remained more or less constant. “
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9 DD JOSHI v, UNION (Desai, J). 453
By Army Instruction No.74 of 1976, the period of ante-dating under’ clauses (a), (b) & (c) remained unchanged but the period a ~~ under clanse (d) was raised to 18 months in the aggregate.
By the impugned: Army Instruction No. 78 of 78 dated.
November, 4, 1978, a further upward revision in’the period of '
. ante-dating the commission by amending. Army Instruction No. 74 of 76 was prescribed. By this amendment, the period preseribed in ‘ _ clause (a) above xemained unchanged. The period of ante-dating
- _prescrbed in clause (b) was revised from 6 months to 12 months
“Y= ©. andthe period of instruction was fevised from 9 months -to 12 months. In clause (c),° the period of 12 months was _ tevised to 2 years and in clause (d), the aggregate was upward 4 . tevised from 12 months to 2-1/2. years. A note: was appgpded to this amendment which according to’ the petitioners introduces the discrimination. It reads as under :
“The above provisions are effective w.e.t, 1.4.78. How ever, the seniority of Officers who joined with PG. quali-, fications during 1-1/1/2 years prior to 1.4.78 will be pro- tected by grant of requisite ante-date so that they do not become junior to officers who have joined later with ‘equivalent PG qualifications.”
e . ‘Petitioners contend that denial of the benefit of longer period . _of &nte-dating the commission introduced by the amended Army ' Instruction No. 78 of 78 which became effective from April 1, 1978 k g. to those commissioned officers who had requisite post graduate qualifications when they were commissioned prior to April.1, 1978, _ js grossly discriminatory and the choice of date is arbitrary . It is ; alleged that those, officers who-had post grad ate qualification at
" ~ the time of being commissioned in AMC whet er they were com-
. .. 7 misioned prior to 1.4.78 or thereafter for the purpose of conditions ' of service and treatment from one homogenous class ‘and by the arbitray choice of date, this homogenous class is divided to pick.
"and choose arbitrarily for the benefit of longer period of ante-dating the commission and the classifieation is not based on any intelligble
. differentia and if tere be any, it does not have any rational nexus
, to the objécts sought to be achieved, It is further alleged that the a choice of date for gtanting the benefit .being thoroughly ‘arbitrary and is not explainable on any rational hypothesis and therefore, on ’
these grounds, the denial of. benefit of extended period of ante at
| Sak,
H.
454 SUPREME COURT REPORTS [1983] 2 8.c.8. « dating to those who were commissioned prior to 1.4.78 is discriminatory and it is a denial of an equality of opportunity in the matter of employment and thereby violative of Art. 16 of the Constitution. It is alleged that in the matter - of ante-dating the
. 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 dateand therefore,. the earlier entrants have. been treated with an evil
‘eye and unequal hand and therefore this treatthent is violative of the guarantee of equality in the matter of employment.
. Petitioners have averred in the petition that the benefit of ante- dating the commission to those who were commissioned after obtaining post graduate qualification irrespetive of whether they hav@»commissioned prior to a certain date or subsequent to that date, in the matter of conditions of service, cannot differently treated and they are entitled to same treatment irrespective of the date On which the commission was granted. /
In the return filed on behalf of the respondents, it was specifically contended that the benefit of ante-dating is granted at the 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 even the old commissioned officers are given benefit of ' larger . period of ante-dating, it would adversely affect a large number of officers of the AMC and ‘.would disturb the “seniority of number of persons:, it was. further alleged that promotions are given on the basis of seniority. It was*:
\ averred that _those commissioned officers of AMC who have either acquired the | post graduate qualification while in the’.
service or who were merely M.B.B.S. at the time of being commiis-
.sioned and those who had post. graduate qualification when com- missioned are all brought on a common seniority list and on the basis of this common seniority list, promotion to the higher rank is given. It was therefore, contended that if the earlier. entrants. are now given benefit of longer period of ante-dating, it would disturb the seniority and promotional prospects -of a*large number of persons and this is unjust and unfair. Number, of charts have been annexed to thé written submissions by the learned. Additional Solicitor General showing that giving of benefit of longer period of
é ke
D.D. JOSHI ¥, UNION (Desai, J) - 455 ante-dating the commission 1 to the petitioners and those - similarly situated would give them an underserved advantage. of jumping over a number of senior officers and the promotional’ 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 impugaed.Army Instruction the maximum period of ante-dating the commission is revised to’ 2-1/2 years, if those just above the marginal line meaning those who were commissioned shortly prior to 1.4.78, if not protected, would be adversely affected by those entering just after the date and would score a march over the earlier entrants and to protect them, it was provided that the seniority of officers who joined with PG. qualification during the %
“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 P.G. qualifications. It was said that there is rationale behind the note and it is incorrect to say that limited retrospective effect is given to the impugned’ Army Instruction No. 78 of 78. ,
At the outset, it is mecessary to clear the grouhd by understanding what constitutes aute- 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 diploma or post-graduate degree or those who enter after having held an approved whole time appointment in a recognised civil hospital for a period “of not less than 6 months will be given adeemed date of commission prior to the actual date of commission. depending upon the period for which under the relevant * Army Instruction such person is qualified. In other words, such person would be deemed to have been commissioned . at a date earlier than the date’ on which he is actually com- missioned. This deemed date would be the date on which person concerned is deemed to have been commissioned and his seniority would be reckoned from such deemed date. This is what is styled in the relevant Army Instruction as benefit of antedating.
The commissioned officers in the AMC fall into three recognis-
_ ed divisions: (1) those who enter with post graduate qualification,
(2) those who acquire post graduate taeation after being com-
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. 456 - SUPREME COURT REPORTS ‘ [1983] 2 8.c.m any further post graduate. qualification. It is not disputed that all the three are borne on the common seniority list because they formed one class of commissioned officers in AMC. Further upward promotion is generally based on this common seniority list.
The benefit of ante-dating is given to those who enter AMC with post graduate qualification and the benefit of ante-dating the commission is given at the time of being commissioned and not Jater on. The Jearned 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 1, 1965, maximum ante-dating admissible on acount of post graduate qualification and for whole time hospital appointment was 1} years. From January 1, 1966, it was reduced to one year. Government of India was again approached for enlarging the period of ante-dating admissible on account of the post graduate qualification. Accepting the proposal, the maximum period for ante-dating the commission was revised from one year to 2} | years with effect from April 1, 1978 with the marginal adjustment to avoid any undeserved benefit being given to the later entrants over earlier entrants to be adjusted as set out in the note appended to’the impugned Army Instruction. It was however, strenuously urged that this benefit of ante-dating was admissible at the time of appointment because it was an incentive and not a benefit being conferred for all those who have already entered AMC. This submission is borne out by the. language ‘of the relevant Army. Instruction. a ae .
Let us turn to the Army Instruction dated August 165.1948. Para (b) which is relevant for the present purpose provided that ‘A candidate will be eligible for the 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 he, fat the time of pppointment is in possession of a post graduate Diplama in any
D.D. JOSHE ¥, UNION (Desai, J.) 457
BINH... ecesseeenssereeeeeee > Again attention should be focussed, on the expression ‘at the time of appointment’. By the impugned amendment by Army Instruction No. 78 of 78 dated November 4, 1978 whaj i is revised is the period, in para 6(b) and 6(e) raising it to 12 monhts and 2 years respectively retaining the condition of eligibility, namely, ‘at the time of appointment’. In this connection, one can advantageously refer to para 6(c) of Army Instruction No. 74 of 76 which provided that ‘at the time of appointment, a candidate will be eligible for grant of ante-date not exceeding 2 years (now revised) in respect of higher qualifications obtained prior to appointment’. The expressions ‘at the time of appointment’ and - ‘higher qualifications obtained prior to appointment’ provided a terminus a quo for the eligibility of the benefit when the benefit of antedating can be granted and claimed, On a plain grammatical construc-
- tion.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 provisoh 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 langua: e of the statute is clear and unambiguous, and if two inter- pretations are not reasonablly possible, it would be wrong to discard
_ the plain meaning of the words used in order to meet: a possible injustice. ‘(See The C.I.T., Madras v. M/s. T.V. Sundram Iyengar (P) Ltd.(). In such a situation, it would be impermissible to call in aid any external aid of construction to find out the hidden meaning. The cardinal rule for construction of a statute is that it should be construed according 4o the intention expressed in statute -itself (see Capper v. Bledwin).(?) It would be presently pointed out that the underlying intention object and purpose for granting the benefit of antedating clearly bears out the meaning deduced by literal construction.
It is therefore necessary to go into the genesis of extending this benefit of ante-dating the commision. It is well known those who
(1) [1976] 1 S.C.C. 77 at pp. 84-85. (2) [1965] 2Q.B. 3@ 61.
458 SUPREME COURT REPORTS [1983] 2 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. If the employer meaning the Union Government would get the benefit of person who has put in 2 to 3 years of advanced learning and training and is, therefore better equipped, he or she must be compensated in some measure. There would be qualitative
. difference jn the service rendered by a graduate entrant and an | entrant with post graduate qualification. The time, money and energy expended in acquiring higher qualification is sought to be compensated by grant of ante-dating benefit, therefore the benefit of ante-dating was devised and has been in vogue. Obviously, this .
benefit is to be given at the time of entering service. The recogni- tion for the time, money and energy spent by an’ entrant with post- - - graduate qualificatioa, compared to a graduate who enters AMC because of this minimum eligibility qualification is implicit in devising this benefit of ante-dating the commission. If the Union Government were to treat one who has the graduate degree on par with one who has a post eraduate degree both are brought on the common senirity list for further promotion, obviously the person who spent sometime in acquiring post graduate ’ qualification, the benefit of which would be available to the employer, would be ata comparative disadvantage in the matter of seniority and future promotion compared to one who came with only graduate qualification. It is this difference between a graduate entrant and entrant with post graduate qualification which was sought to be compensated by granting the benefit of ante-dating the commission. The object, the puprose and the intention underlying the provision was to compensate for the extra time, money and energy spent in acquiring post graduate qualification equipped with which the men enter service and this object, purpose or intention underlying the provision is clearly-manifest in the language used in the relevant paragraphs of the Army Instruction bearing on the subject by. providing that eligibility for gaining the benefit of ante-dating the commission, namely, having a post graduate qualification shall be taken into account at the time of entering the service. Two pre-conditions have to be fulfilled before the benefit can be acquired i.e. (1) the candidate must have a post-gradute qualification obtained prior to appointment, and (2) that such qualification must have been acquired and must , be available at the time of appointment. Therefore, not only the language of the relevant provision leaves no room for doubt but the
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D.D, JOSHI v. JOSHI (Desai, J.) 459 object and intention underlying the provision clearly buttessed the meaning of the provision. r /
If the benefit of ante-dating the commission is not to be granted at the time of enacting the AMC to those who enter with post graduate qualification, how would their case be differentiated or distinguished from those who acquire post graduate qualification while in service. There is no qualitative difference in the relative merit of a person entering service having acquired post graduate qualification and one who acquires the same after entering the service, of course, since after acquiring the qualification. Yet the benefit of ante-dating is given to those who enter AMC with post graduate qualification, and not to those who acquire such qualification after being commissidned. It may be recalled that at present out of approximately 4,400 commissioned officers of AMC, there are about
“154 commissioned officers who were commissioned after having acquired post-graduate qualification. As against this there are about 1227 officers of the AMC who acquired post-graduate qualification while in service, The quality of service rendered by both having identical qualification would not be materially different, and yet in
. the case of first, the benefit of ante-dating the commission is exten- ded by the relevant Army Instruction while in the case of latter, no such benefit is given. This clearly establishes that the benefit of antidating the, commission is to b: made available only to those who had acquired post graduate qualification before being commissioned into the AMC. The recepient of the benefit gets seniority over earlier entrants and the seniority is determined, in the absence of another rule from the date of entry in the service or cadre. The seniority so acquired will enable such persons to be considered for promotion earlier than those over ' whom they score a march by ‘ante-dating the commission. It is thus abundantly clear that the benefit of ante-dating the commission is available only at the time of entering the AMC. A subsequent enlargement of the benefit cannot be 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-graduate qualification after being commissioned as members of AMC.
It was strenuously contended on behalf of the petitioners that all commissioned officers of AMC who entered AMC after acquiring post graduate qualification formed one homogeneous class and by
\ e
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460 SUPREME COURT REPORTS [1983] 2 8.c.R.
artificially selecting the date of April 1, 1978 for entitlement of enlarged period of ante-dating compared to those who had entered prior to that date has the pernicious tendency of dividing a homogeneous class into two compartments. It was urged that © this classification is not based on any ‘intelligible differentia and it has no rational nexus to the objects sought to be achieved by enlarging the period of entitlement. It was therefore, contended that the note at the foot of the amended Army Instruction No. 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 entered subsequent to that date, is violative of the guarantee of equality enshrined in Article 14 and is a denial of equality of opportunity in the-matter of employment as guaranteed-under Article 16 all therefore, being unconstitutional deserves to be struck down. A good number of decisions of this Court were read to us. The deci-. sions on the scope and content of Article 14 are legion and to recall and of them would be merely an ‘idle parade of familiar learning’. It is well-settled and not controverted on behalf of the respondents that Article 14 forbids class legislation but does not forbid classifica- tion for the purpose of legislation. It is equally well settled that in _ order to meet the least of Article 14, (i) the classification must be based on intelligible differentia which distinguishes persons or things that are grouped together from those that are left’ out of the group; and (ii) the differentia must havea rational nexus to the objects sought to be achieved by the legislative or executive action under challenge.
Does the enlarged period of ante-dating the commission made admissible to those who enter AMC after a certain date denying the same benefit to those who had already entered AMC prior to that date, has the pernicious tendency to divide a homogenous class based on arbitrary criterion and not relatable to any intelligible differentia. One has to remember that an employer has a right to grant incentive for attracting better qualified persons to the service offered by the employer. If the incentive is devised with a view to offering iniduce- ment to those wavering whether to enter a certain service or, not, it is difficult to accept that such incentive should also be extended to those. who have already entered service and have. already taken full advantage of the benefit available at the time of entering service. In this case, it is clearly made out that the benefit of enlarged period
D.D. JOSHI 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 so as to give them the same benefit. It is difficult to conceive that an incentive can be retrospective though it is indisputable that conditions of service can he 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 14 years when petitioners entered- AMC, which was reduced to one year effective from January 1, 1965, none of them ever suggested that this being a condition of service thust uniformly apply to those who would be covered by the conditions of eligibility and thereafter the period must be reduced. But subsequently when the period of ante-dating was enlarged by the impugned Army Instruction which became effective from April 1, 1978, it is now clamoured that this benefit must be extended to those who have entered AMC way back as early as November, 1949 and -in the process give the petitioners and similarly situated persons a@ march over those who are already seaior to them in the common seniority list.
The degree of unfairness of the claim of petitioners can be demonstrably established by working out the position of-some _petitioners on the footing that each one of them is entitled to longer period of ante-dating the commission. Ist petitioner Col. D.D. Joshi was commissioned on July 25,1954 and after obtaining the benefit of ante-dating then aviailable, he was put in the seniority list as if he had been commissioned on January 25, 1953. Now if he is given the benefit of ante-dating the commission by 2} years, his deemed date of joining the AMC would be January 25, 1952. In the process, he would scope a march over 21 con missioned officers who are already senior to bim in the seniority list. This is equally true of all the 7 petitioners but in the case of petitioner No. 3-Col. V.S. Sharma, he would score a march over 41 commissioned officers already
_ Senior to him. One M.B.L. Sexena who is not one of the petitioners but who is similarly situated, if now held entitled to benefit of 24 years ante-dating, he would jump over 50 commissioned officers senior to him. In the case of petitioner No. 7, he would supersede |
65 officers already senior to him and a good number of them are
462 SUPREME 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 AMC. They do not get any benefit denied to others after becoming the
- members as benefit of ante-dating is available at the time of appoint- ment. There may be an enlargement of the cadre. There would be retirements. Recruitment and retirement are a continuous process. Those who are recruited at the relevant time will have to satisfy the conditions for recruitment then in force and would be entitled to the benefits that may be available to the new entrants. If the principle canvassed for on behalf of the petitioners is taken to the logical end, it would lead to a startling result. Suppose a rule is now made that only persons with post graduate qualification would be qualified for being commissioned in AMC, can anyone contend that as in the
, past mere graduates were rectuited and therefore, ignoring the revised minimum eligibility qualification, a »graduate must be considered for
~ recruitment, Therefore, in respect of benefits which are available x 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 appended to the’amended Army Instruction No, 78/78 providing the benefit of enlarged period of ante-dating being made available to new entrants only will have the pernicious tendency of dividing a homogeneous class.
It was then contended that the selection of the date April 1, 1978 is thoroughly arbitrary and has no national nexus to the objects sought to be achieved. _ Reliance was placed on Union of India & Anr, v Mjs\Parameswaran Match Works etc.(*) In that case this Court
(1) [1975] 2 S.C.R, 573.
«DD. JOSHI ¥. UNION (Desai, J.) . 463 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 homogéneous class by the choice of the date. The object underlying the benefit extended to the new entrants determines the choice of date. Inducement for attracting fresh recruits from the market must come into force by a certain date. The employer can legitimately determine, keeping in view the demands of public service, from which date the document will be available. In such a situation choice of date is not wholly arbitrary
‘and has not the tendency to devide a homogeneous class. We see no classification amongst those who enter AMC after acquiring Postgraduate qualification determined by length of ante-dating benefit because each one at the relevant time obtained the advantage of ante-dating as it was then ‘in force. There is no differential treatment. There is no division of a homogeneous class. The distinct possibility is that if petitioner’s contention is accepted there would be vertical splitting of a homogeneous class. It is therefore, difficult to accept the contention that the note under the impugned amended Army Instruction is violative of Art. 14 or Art. 16.
It was next contended that the Third Pay Commission recommended that doctors entering service of the Union of India with post-graduate qualifications should be suitably recompensated for the time spent in acquiring these qualifications. It was urged that this recommendation was implemented in Central Government Health Service and it is this 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 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 (*)., 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 regarding some employees only it
(1) 240 U.S. 30. : : (2) AIR 1973 S.C. 1088,
464 - SUPREME COURT REPORTS {1983} 2 s.c.r, 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 ef ante-dating was devised long before the recommendations of the Third Pay Commission were formulated and each petitioner got the benefit consistent with the Army Instruction in force at the time of being commissioned in the AMC A subsequent enlargement of the period, not pursuant to the recommendation of the Pay Commission and held out as an inducement for recruitment from the market cannot be claimed as a matter of right by those who have already availed of the benefit on earlier occasion.
It was then contended that if extending the benefit of enlarged period of ante-dating to all {irrespective of the date of entry would have the tendency of unsetting the seniority list, that should not weigh with this Court because on such nebulous ground violation of constitutional mandate cannot be overlooked. Reliance was placed on General Manager, South Central, Railway, Secundrabad and Anr. etc, v A.V.R. Siddhanti & Ors. (1). We again fail to see how this decision helps the petitioners. The fallacy underlying the submission is that this benefit of enlarged period of ante-dating is claimed as a condition of service uniformally applicable to all persons qualifying for the same ignoring the conditions under which it can be claimed. The contention overlooks the basic condition subject to which benefit can be claimed and it is that it is available at the time of entering the 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 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 baving 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
(1) [1974] 3S.C.R. 207,
D.D. JOSHI v, (Desai, J.) 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 quaiifications 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 1,.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 24 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 impugoed 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 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 binding on the Union of India, the presence of others is ynneces~
466 SUPREME COURT REPORTS {1983] 2s.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 substance in the contentions raised on bebalf of the petitioners and therefore ali the petitions are dismissed with no order as to costs.
S.R. Petition dismissed.