COL. A. S. IYER & ORS. ETC. v. V. BALASUBRAMANYAM & ORS (2)

Citation: [1980] 1 S.C.R. 1036

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, V.R. KRISHNA IYER, N.L. UNTWALIA, P.N. SHINGAL, A.D. KOSHAL

Case summary

But that is not really decisive of the issue before us. But we cannot get away from the historic fact-not merely the fact of history-that the Survey of India is, first and foremost, an instrument of military strategy for the defence o[ the country although its talents are not...

Judgment text

COL. A. S. IYER & ORS. ETC. v. V. BALASUBRAMANYAM & ORS. Oclober 24, 1979 I [Y. V. CIIANDRACIIUD, C. J. , V. R. KRISHNA IYER, N. L. UNTWALIA, P. N. SHINGIIAL ANO A. D. KOSHAL, JJ. J Stuve}' of India (Rec. :ruitrne1u /10111 Corps of Engineer Officers) R"les 1950 -Service' consisted of Anny and Civilian Officers-Seniority and promotional opportunities for Army Officers different from Civilian Officers-Rule if violatn·e of Articles 14 and 16-of the Constitution. Rule 5 of the Survey of India (Recruitn1ent from Corps of Engineer Officers) Rules 1950 provided that on first appointment an officer \VOUld be in the grade of Deputy Superintending Surveyor in Class I Service of the Survey of India and that seniority of n1ilitary officers inter se will re1nain the same as itI the Army. Sub-rule 5 of this rule provided that an1ong those allotted to the same yea(, military officers would rook senior to directly recruited civilian officers.

Rule 11 of the Rules \Vhich dealt with the me~hod of recruitment to Survey of India Clas& I Service provided that all recruitments to the Cadre would be 50% from the Corps of Engineer Officers, 25% from promoted Clas:i II civilian officers and 25% from direct recn1its by competitive examination through the· Union Public Service Commission. These Rules- were amended in 1960 and 1970 but the provision relating to military engineers remained the same as in the 1950 Rules. In a writ petition filed in the High Court, the civilian officers of the service consisting of direct recntits and Class II promotees impugned the validity of the 1950 Rul'es on the· ground that seniority prescriptions were based on irrelevant criteria and that discrimination was writ large in the in1pugned provisions. The High c·ourt, accepting the contentions of the civilian officers, stiuck down eertairr rules of the 1950 Rules as violative of Articles 14 and 16 of the (i Constitution.

The High Court did not acc'ept the contention of the Government that the nature and character of the work done by the Survey of India was essehtially -connected with defence purpose& because th'e work done by the Department for the Army was done along with several other services carri'ed on by it, namely, with the development projects, preparation of ma. ps for various Ministries of the Central and S;tate Governments, public sector undertakings and other agencies; assuming that the work was related to defence purposes, civilian officers were employed by the D'epartment to do the same work and during emergencies, civilian officers were la,ns. 'Lcok before you leap' becomes in development terms, survey before you start, and so it is that 111 1967 this great department of strategic importance is able to write its story and conclude : "25.

In short, in its ever increasing sphere of vast, I' diverse anll widely scattered work, Survey of Indi:t has built up a unique reputation both within the country and outside as a sound, distinguished, and great Survey Organisation of the w9r]d, progressively mm·ching forward. expnnrling, adapting and modernising itself and continuing its contribuLions to Science, security and develop1nent. 1 The -personnel of Survey of India can legitimately take pride in the fact that' they belong to this ancient and great org:::nisation, to whom a noble, rich and priceless heritage • has been bequ~athcd-inspiring and beckoning them to greater heights of achievement, honour and glory. " When the history of Free India comes to be written the proud contribution of the Survey of India may be printed in bold and bright A. s. IYER v. v. BALASUBRAMANYAM (Krishna Iyer, J.

) 1041 characters because almost every Department of gcvernmental activity with we1fare pctential has the imprint of the Survey of India at some stage or the other, as disclosed in the various materials which have come into our hands, through counsel, in the course of their submissions. The flattering fact that the tallest peak in the World, Mount Everest, was named after the eminent Surveyor General Sir George Everest shows that even in: the geological discovery er India. this Department has had a hand, The different dimensions and directions in which the :O. urvey of India has served the nation and science a• a whole are perhaps a fall-out of its adventurous alliance with military activity. During British days, it was not an accident that the Survey of India was under the Army. It was an inalienable companion of conquest anrl consolidation of defence and development-a versatile genins which was put to greater good in the era of Freedom and After. "12.

It is perhaps not so well known that the work of the Survey of India has special significance in matters of conntry's defence. The Survey of India has to organise surveys and work well ahead ·to provide maps at the rl1:>hi time and of the right places where campai! 'ns might ~be fought in war. E. The Chinese threat along the northern borders of the country since 1959 necessitated diverting immediately a very large potential of the Department to carry out the work of special topographical surveys for defence purposes ' in one of the most inhospitable and rugged terrains of the world--. :,m assignment which cost the Department many precious lives and many yeaJ"s of hard work. The bul. k of military survey and mapping requirements are met by Survey of India. Though the milil:lry survey iiervice exists. it is small and has insufficient personnel, who carry out limited technical work and such staff duties as army requires in peace time. ~- 13.

There have, thus, been many occasions for the Survey of India to be commended for its work for defence and_ development in war and peace•. and for provi_ding the basic knowledge of the land for all its users. "(! ) B. (I) Survey oflndia, A Background Inforrnation-'Ou;; Department' Departmental Paper. No. 19) PP 8·9. 12-743 SCl/79 I A The Surveyor General, for reasons of functional i:nportance, is also the Director of Military Survey. Topographical Mapping states : "When corrections and additions to maps of military importance ·are suggested by the Director, Military Survey, they should, as a general rule, be accepted by ·the Survey :B of India. " It is necessary to notice the role of the Survey Department under the Director of Military Survey who is also the Surveyor General thus bringing ont the interlacing of activity.

Obvionsly, there is not merely sensitivity and confidentiality but also a high degree of skill which cannot be relaxed and an instant sense of discipline, which cannot be liberalised, in view of the fact that military operntions of national significance depend, in part, on the Survey of India and its service. While it is fair to emphasise that considerable peace-time developmental work is rendered by this Departn\ent, its adventurous spirit of climbing mountains, penetrating wildernesses and entering into forbld- 0 den regions cannot be minimised. Lt. Col. Sandes writing on 'The Military En~ineer in India' states : "History has shown that there is something in the training which the Survey of India, imparts to its officers which makes them peculiarly valuable in war. Their work develops not only self-reliance and initiative, but a sense. of responsibility. Everything centres on the example set by the leader of an isolated party. As a rule, he is the only Furcpean in the small country.

He must have powers of organisation and observation : courage, determination and endurance. In the ordinary cours~, he must be precise to the point of pedantry, never satisfied with unchecked work and abhorring the smallest error; yet at other times he must fling theory and practice to the winds to improvise means of, rapid reconnais- 1 sance when danger threatens. "( ) The Military history which has moulded the character of this Department has relevance and so we quote again Lt. Col. Sandes : "As the war spread, ·the survey officers from India were scattered over the face of the earth; some on mllitary dutv with engineer units other flash-spotting, ~ound-ranging and triangulating in France and Belgium : and others again reconnoitring and surveying in any or all of three continents. They worked in Salonika, North and South Russia, Italy B Gallipoli, East Africa, Mesopotamia, Egypt, Syria, Persia, (! ) Lt. Col. E. W. C. Sandes, The Military Engineer in India. Vol. II p. 215. A. s.

IYER v. ·v. BALAST. JBRAMANYAM (Krishna Iyer, J,) 1043 . . and on the shores of the Caspian. One commanded a origade A· in North Russia, another Jed' a Persian army. Ten officers of the Survey of India we. re killed in Action, or died on service, during the Great War, and tbi. rteen were wounded. Many casualties occuJred in the lower ranks. Such were the contributions of the Department towards victory in the greatest struggle of all time. T11ey form a fitting climax to its record 1 in the frontier wars of India. ;'( ) . If we may sketch a few lines to indicate the trait of the Corps of Indian Engineers with a view to' illumine the points canvassed before us, we have to refer ta. the book by. Major Verma and Major Anand. The authors state : (") "Before the war, Military Survey as such did not exist; though for generations past, Survey of India had provided detachments for practically every military campaign or expedition.

But these parties werel considered to be civilian, including their military officers-in-command, and they were only attached to the Armv for supplies and transport. Even in the First World War (1914-18), Survey of India detachments went out and worked in Macedonia, Mesopotamia and Persia. But at no time before 1940 did India have any military units like the Field Survey Companies or Battalions. Between the wars, survey and mapping for the Army was done by the Sur;ey of India, which except for the Artillery Survey Section, Royal ArtiJ! ery, was the sole military survey agency. It had a semi-military tradition, the Surveyor General held the rank of a Brigadier and his principal officers were . ·Royal Engineers with specialist survey qualifications. There was no survey representation at GHQ. " Again "For the Department. the military responsibilities in 1938-39 were:- (a) Liaison with the Armed Forces ou survey and mapping.

(b) Provision of maps required by the Defence Services, covering India, Burma, Afghanistan and. Iran. OJ~. m. (2) Maj. S. Verma & Maj. V. K. Anand, The Corps ofTndian Engineers 1939-47. p. 198. (c) In the event of a war; to provide and equip firstly two Fd Survey Compani~s and two Survey HQs fof service in the NWFP, and secondly one Survey Report (admn. ) · (d) To carry out annually a small amount. of training in military survey. "(! ) •• In many· Circles, Directors of the Survey of India have been Office Advisers to the 'Commander-in-Chief' an. ct the work done by this Department has had in many cases military meaning. This was · reflected in the past in the officer situation and personnel complexion. Class I Officer~ were all military men while Class. II met\ were civilian graduates. Brig. Wheeler, writing of the officer situation in British India, summed up thus : "Perhaps the greatest single factor affecting military .

organisation was that whereas there were nearly 60 military officers in 1925, there were only 30 in 1939; to train a civilian to be sound and efficient soldier takes a considerable time, to train a non-survey soldier to become an efficient surveyor, 1 much longer, very much 'longer. " The military commitments of the Survey of lndia in the World War II made it a strategic instrument invisible to the lay but invaluable to the esoteric. We have pressed this part of the career of the Survey of India to knock out the impression that its military component is purely a concession to the historical staffing pattern and the lack of avenues for promotion to Army engineers. It is an in-built necessity of the department in national interest. We agree with counsel for the respondents, Sri Govindan Nair, that the early history of the Survey c1f India as a child of the Army cannot become an obsession to distort or debunk the enormity of its purely developmental undertakings.

It is a Civil Service which serves in national reconstruction al\ the time, but,' at the call of the country, is ready to switch to Defence, risk anywhere and do surveys as commanded. We must set our sights right about the civil and military range of the versatile department and not swallow the 1 brash version that it is all 'brass'. Its bearing on the conclusions in • the case is that the court should not blindly accept all the preferences to the Army recruits as against their civilian brethren . under the impression that everything in the Survey of India is De. fence operation and civilian must therefore accept the crumbs as shudras of the Service. Nol Most of its work is peace-time activity of a fundamental. though invi- . (1) The Corps of Indian Engineers (Ibid) p. 199. A. s. IYER v. v. BALASUBRAMANYAM (Krishna Iyer,!. ) 1045 sible character to promote development in its multitude and magnitude ahd, indeed, in its panoramic magnificence.

But we cannot get away from the historic fact-not merely the fact of history-that the Survey of India is, first and foremost, an instrument of military strategy for the defence o[ the country although its talents are not allowed to grow into thistles but to serve, wherever • ! ' needed. U competing demands come, it opts for and is therefore geared to Defence goals. That is its first charge and, in that sense, it is Defence-oriented, has an Army bias and. cannot afford to ignore the indispensibility of a military component. The history of a nation is never written by the military but its history ceases to be, if its reserves of military manpower cannot be mobilised for active duty at an instanfs notice. The Survey of India, with its signal service to the pbnned progress of the people, has a tryst with national security and an everready commitment to the country's defence requirements.

This may look over-drawn but embeds a core of truth cardinal to the issue in the case-why weightage to the 'uniformed' recruits as against their counterparts in 'mufti' ? Let us thus place accent Cliil what is essential but not miss what exists as a reality. From this angle, a legal raconteur may re-tell the story slightly differently. · The Army in British India had, as one of its strategic operations, to undertake the survey of the interior and frontier of the country and . had, therefore, under it a department wholly manned by military personnel. After Independence and the enactment o[ the Constitution, this military limb separated from the Defence Forces, was constituted into a Civil Service with the Surveyor Genera! ' at the. apex and a hierarchy below of triple components together making up the Class I service. The Service, in its new dimensions, was manned by civilian and military personnel due to functional imperatives.

The entry into the service was at the point of Deputy Superintending Surveyors, save for a category of promotees from Class II, with provision for spiralling up to higher positions. The posts we. re filled according to Rules framed under the proviso to Art. 309 on a 50 : 50 basis, as between Army engineering personnel dovetailed into the Survey of India and civilians . recruited or promoted or otherwise appointed. We miss the service perspective if we do not take · a functional glimpse at the operational scale and range of the Survey of India. What· was a wholly military department previously reincarnated as the Survey of India, with a civilian inter-mix, retained its meta-military personality, functionally and personnel-wise. In budgetary c! assifica- tion and administrative charge, the Survey of India was a member of the Agricultu.

re Ministry, of the Education Ministry and currentlf, perhaps, correctly belongs tc/the Ministry Qf Science and Technology which is pervasive enough to embrace Defence and Development. It is· not right to regard this Service as a 'uniformed' service, for it is, ambidexterous. But that is not really decisive of the issue before us. What we have to understand is not so much its genetic transmigratim;1 •• · as such or pedigree table but the nature of the service the $urvey of India is expected to render, its basic functional characteristics, operational capabilities, futuristic uses and, consequentially, its meaningful personnel policy and the conditions of service dictated by the compelling necessities of these demands on the Service. In brief, the emphasis is not on the administrative r,igeonhole in which the Survey is placed for secretariat or budgetary purposes; nor on its lineage, nor, indeed on the label 'civil' or 'Defence' but on the nature of its duties and.

the relevant pattern of manpower and, most importantly, the concrete conditions of recruitment and principal career requirements while in service, having regard to the strategic essence of the goals the Service must sub-serve. So viewed, the Survey of India is armyoriented. Not merely because of heredity but markedly because of the nation's potential de! llands and perennial expectations frO! ll this specialised Service, not merely in emergency but to be always on tJie qui vive. We gather from the affidavit of the Senior Director, on behalf of the Union of India, that the army component is an inalien- • able requirement of the Survey of India if it is to fulfil its role. He swears : "Some of the reasons for corps of Engineers being: one· of the sourc. es of recruitment are as follows : (a) Survey of India may need mobilisation in the event of any emergency of war. (b) The Corps of Engineer Oftlcers in Survey of India form the nucleus around which mobilisation can take place quickly.

(c) The small element in the Army cannot cater for training and experience, and hence Corps of Engineer Oftlcers are kept in Snrvey of India which provides the ideal ground for training and experience of these oftlcers during peace so as to keep the! ll fully competent technically in the event of a war or emergency. In order to maintain· an adequate balance between military and civi~ian officers, and to attract the higher type of Corps of Engineer Officers to the Survey of India, 50% of A. ~. IYER v. v. BALASUBRAMANYAM (Krishna Iyer, J. ) 1047 the total nnmber of posts in the. Class I Cadre were earmarked for the Corps of Engineer Officers. '" What, then, is the raison d' etre. of this department ? War means advance into or withdrawal from territory.

Operations involve ·identification of topography, climatology, environmentology, location of d~fence positions, marking of marching and retreating positions and artillary targets and paratroop landing positions, keeping secret strategic centres and sealing them off as out of bounds--and a host of otlie,r surveys invaluably informational and immediately available for national defence. It is obvious that if this be the functional relevance of the Survey of India, some divi_sions of it have to ·be fighting fit, always on the alert, ready to rush to the risk zones and technically capable of teaming with the ground forces in seasons of eiuergency and occasions of external aggression, before and after. Tpe Survey of India must be geared to the goal of national security if it i~ to justify itself in a large country of extensive mountain frontiers, border · disputes, history of hot war, interior defence lines and military routes.

Of course, our imperial masters could afford, at the expense of people's welfare, to keep such a department as a section of the Armed Forces, idle for long stretches of time but keeping their tools sharp for eventualities. Free India could not. Naturally, the country's leaders, entrusted with gubernatorial responsibilities in this behalf, hit upon a golden mean olf forming a separate Survey of India, no more a wing of Army. The object was undersrandable. A permanent yet considerable number of technical personnel vi. rtually idle during peace time was a luxury. Nevertheless, an instrument was forged which pre. served the military mood of active duty but expanded and expended its sophisticated expertise during years' of peace on national needs of other Ministries or States' requirements. It reflected the duo-dexterous roles and mosaic of manpower in its recruitment policy.

Unique functional imperatives demand nnique service anatomy as an administrative experiment in the Darwinian art of survival of the fittest. We see nothing strange in~ this unorthodox composition, although attempt'i to interpret the new scheme by familiar Service moulds may mislead, as has happened in the High Court. The Senior Director with reference to current conditions. deposes as· affiant of the Central Government : "Reasons for seniority and pay protection for the Corps of Engineer Officers are as follows :- 9. (a) They suffer due to lack of higher opportunities of promotion to Brig. Major General, Lt. General and General by their volunteering for the Survey of India. (b) They can utmost expect to get military pension as a Cofone! but not as Brig. and higher which are substantially higher. (c) They lose other perquisites like house rent, concessional electricity and furniture facilities, concessional Form 'D' facilities, and many other concessions.

Unless therefore, they are given protecti011L of seniority and pay in order to partly compensate their losses, no Corps of Engineec Officer would ever volunteer for the Survey of India. These were the considerations for the seniority and pay protection for Corps of Engineer Officers. Even if, for argument's sake, it is admitted that preferential treatment is given to Corps of Engineer Officers (which it is not), it is done under the rule• whicbi have been framed based on the differences between the various sources of re. cruitment, and the said differences have a reasonable relation to the nature of the office to which recruitment is made. Thus, the appointment, and terms and conditions of the Corps of Engineer Officers can legitimately be sub- IE stantiated on the basis of valid classification. " At this point we must eye at close quarters the Survey of India (Recruitment from Corp~ o:f·Engineer Officers) Rules, 1950.

Primarily, it relates to the recruitment from the Corps of Engineer Officers. The relevant part of Rule 2 runs thus : "2. Recruitment : A Corps of Engineer Officer for appointment to the Survey of India should at the time of appointment normally have not less than three and not more than six years commissioned service, but this rule may be relaxed in exceptional cases. Corps of Engineer Officers shall apply for appointment to the Survey of India to the Military Secretary, through the Engineer-in-Chief, who will transmit the applications to the Surveyor General. The Surveyor General will maintain a list of such applicants, as, after making the due. enquiries, he considers to be suitable for appointment. When a military post falls vacant and the Military quota has not been filled the Surveyor General shall nominate an Officer or Officers from the above list. " ' A. s. IYER v. v. BALASUBRAMANYAM (Krishna Iyer, J.

) 1049 This Rule postulates a military quota which takes us straight to Rule 11 : · "11. Method of recruitment to Survey of India Class I Service. All 'future recruitment to the Survey of India Class I Cadre will be as follows : 1. From Corps of Engineer Officers 50% 2. From promoted Class II Civilian Officers 25% 3. From direct recruits by competitive examination through the U. P. S. C. 25% The military recruits to Class I Service enter the Deputy Superintending Surveyor's (hereinafter referred to as D. S. S. ) position in the Service from where they rise on promotion as• Superintending Surve)orS (hereafter referred to as SS) Deputy Directors and Director, tbe top post being of Surveyor General. These promotion posts are available for all categories of entrants as has been clarified in the later set of Rules called 'The Survey of India (Class I Recruitment) Rules, 1960.

' Before we part with the 1950 Rules, it is necessary to place accent on some aspects of the military officers and their ~areer in the Survey of India. Their sojourn in this new Department is not an exit from the Army but a long furlough, as it were. For all practical purposes, they retain their military position and reD)ain under military control and are liable to be called back for regular army service. It is a kind of provisioual adoption into a different family but with the •ties in the natural family kept in-tact. A Corps of Engineer Officer will be qualified for recruitment only if he is in commissioned service for between three and six years. The1i he is to go through a two-year period of probation during which he is to pass tests. If he is not good, he gets back to military duty and even if he makes good, he has an ·option to revert to military! employment. Even after confirmation, the officer may revert duringr the first 20 years of commissioned service on his own request.

Even thereafter, with the approval of the Government he may revert permanently to military duty, save in the case or' those who fall under Rule 4(c). If an officer retires from the army that will involve retirement from the Survey of India too, save in the case of those who are Colonels or Lt. Colonels, covered by Rule 4(c), and ·1oso ·SUPREME. COURT REPORTS (1980] 1 5. C. R. retires from the army only for the reason that they have attained the regnisite age limit. Such persons m1der Rule 4(d) may continue in the\Survey of India until the age of superannuation from civil employment. It is important to note that an officer may be reverted perman finding and have legitimately lashed the appellants' plea as u. npresentable in the face of this finding of fact. The learned Judges observed : ·This claim, however, is not made out ' before us.. We have already referred to the· various affidavits filed by the parties.

In the original counter aftidavits filed by respondents, the stand taken is that because the rules provide for special privileges, they are being given to the army personnel and so the equality concept is not violated. That is really begging the question. When the petitioners complain that the rules made in this behalf violate the equality concept as II enunciated in Articles 14 and 16, it would be futile to reply to that argument by saying that the rules so provide. In the later affidavits some attempt. is sought to be made to point ont that the nature of the work carried on by the Snrvey of India department is essentially connected- with Defence of India and that the officers recruited from the Army Corps of Engineers are specially trained for this purpose. On the basis of the material placed before us, we are not inclined I to accept that the work done by the Survey of India department is essentially of the nature and character required for defence purposes.

It may be that along with several other surveys carried on by this Department, it does survey wock which is useful to the Defence department. From the affidavits and the other· material placed before us, it could be seen that the survey work done by the department is mostly concerned with the development projects and preparation of maps for various Ministries, State Governments, public sector projects and other civilian agencies. The annexure filed along with the additional reply affidavit filed by the petitioners show that the Survey of India is a national survey organisation. It appears to have surveyed quite a large nnmber of development projects during the three plan periods. The department might have prepared some maps useful for the Defence purposes. But that is only part of the work and incidental to the nature of the survey it carries on. Its work does not appear to be Defence oriented.

The survey done by the department is utilised by several departments of the Central and State Governments, public sector projects and other civilian agencies. It is, therefore, making a tall claim to say that the survey is essentially of Defence nature. Further, there . is nothing to show that even if the work related to Defence purposes the civilian officers are not employed or engaged. Thus, the Survey of India appears tc be a civilian department with a civilian budget. Further, whenever there is an e111ergency there is nothing which prevents or bars the Government of India from calling upon the civilian officers also to serve on the border. It is the stand of the petitioners that if 25 army personnel belonging to the Survey of India were called to the border area in 1962 war,' as many as 70 civilian officers belonging to Class I and Class II categories were called to work in the same area.

They also assert that just like the Defence department uses some maps prepared by the Survey of India, the Forest Department, G. S. I. , P. W. D. etc. , also use the maps. So we are not inclined to hold that the nature of the survey and work carried A. s. IYER v. v. BALASUBRAMANYAM (Krishna Iyer, J. ) 1053 on by the Survey of India department is largely defence oriented. Even at this stage, ~e may refer to the High Court's view about· the historical background of this Service : It is, further, stated by the respondents that the historical background also supports recruitment of as much as 50% of Class I officers from the army engineering corps. Some reports are sought to be relied on in this connection. This argument overlooks the fact that we are not concerned with the situation as it obtains in Independent India and not in British India.

It is true that some attempts have been made after attainment of Independence to attract officers from the army engineering corps into Snrvey of India department. But as in 1950, 1960, 1962 and 1974 Rules generally show, the work done by the department is essentially civiliari in characte~. The impugned rules will have to tie examined in the light of the circumstances that are now prevailing ever since Independence and not on the so-called historical background which has, in any case, become archaic. In regard to the special training given to the army personnel which is said to justify the classification, it appears to us that this claim is not tenable. If the army' personnel are given training in field engineering for 9 months and for 3 years in the Military Engineering College, Kirki, the qualifications required for direct recruitment of civilians are no less valuable. Largely, only engineering graduates are / recmited directly. They have equal engineering experiences.

Further, it does not appear that the army officers had been given any survey training when they were in the army services. It is not, therefore, possible to say that the recruits from the army are better qualified than the civilian direct recruits. The promotees from Class II have, behind them a very long experience of not less than one decade in the work undertaken by the Survey of India department. With this long experience of survey work, particularly belonging to this department behind them, we do not see any justification for their being discriminated against in favrnir of army officers. We are not, therefore, prepared to accept that the army personnel in the Survey of India department have had any longer or better training required for Survey of India than either the direct recruits or promotees from Class n service to Class I service. The latter two, categories appear , to be as qualified and as experienced as the army officers to carry out the work of Survey of India.

The only conclusion that is possible from the above discussion is that this classi~cation made under the impugned rules between the army personnel and the civilian personnel has no reasonable connection with the object that is sought to be served. " We demur. Why? The 1950 Rules, in our view, have two prominent features which are basic. The first one which we have already emphasised is that the military nominees do not shed their army service and merge into a new Service but undergo a partial absorption and preserve a substantial separateness. The second feature, which is perhaps more hurtful to the civilian sector, turns on Rule 5 which provides for seniority. The rule runs thus : 5. Seniority. -(1) On first appointment an officer will be in the grade of Deputy Superintending Surveyor (Formerly Assistant Superintendent) in Class I Service of the Survey of India. (2) The seniority of military officers inter se will remain the same as in the Army. .

(3) The seniority of military officers vis-a-vis directly recruited civilian officers will be determined by the year of allotment which will depend : (i) in the case of military officers, on the date cf first commission including ante-date, if any; and (ii) in the case of directly recruited civilian officers, on the date of appointment ante-dated by two years. (4) Civilian officers directly recruited oii the results of any one examination will be junior to those recruited on the results -of . earlier examinations and senior to those recruited on the results of later examinations, the seniority inter se of those recruited in any one year being determined according to the order of merit in which they are placed by the Union Public Service Commissi6n in the qualifying examination. (5) Among those allotted to the same year, military officers will, rank senior to directly recruited civilian officers. A. s. lYER v. v. BALASUBRAMANYAM (Krishna Iyer, J.

) 1055 Rule SA deals with promotion-officiating and substantive. qualifying two-year probation and a further three years' service are a sine qua non for substantive promotion. Buf officiating promotions are open to all the officers, preference being given to tbose who have done more years of actual survey work, regardless of seniority. Even ol! iciating posting needs the qualifying service of two years and three years, earlier referred to. In this regand, the Class II officers who • are directly promoted as S. S. have a definite advantage over the military men. But when it comes to confirmation in substantive promotion posts, the military personnel opting into the Survey of India get the advantage of Rule 5 which bestows on them the added benefit of the period of service from the date of first commission in the Army which may be anything between three to six years as against two years of ante-dated service which the civilian officers are entitled to tack on.

The 1960 Rules also require to be examined before we proceed to a disC'Ussion: Rule 3 speaks of the sources of recruitment or appointment Direct recruitment of qualified canilidates, promotion or transfer from. another service, appointment from the Corps of Engineer Officers of the Ministry of Defence and, rarely, admission of other qualified persons-these are the methods of entry into the service. A direct recruit must be a graduate with Mathematics or the holder of an Engineering Degree (there are other1lteruatives which are of minor significance). Rule 20A, which was an amendment made in 1965, insists that every person in the Service, appointed after the 1965 amendment, "shall be liable to serve in any defence service or post com1ected with the defence of India, for a period of not less than four years", including the training period. 'This, incidentally, emphasises the military adaptability expected of the Service. Rnle 22 is ) important : 22.

Seniority-(a) On the first appointment an officer will be in the grade of. Deputy Superintending Surveyor (formerly Assistant Superintendent) in class I Service of the Snrvey of India. (b) The seniority of military officers inter-se will remain the same as in the Army. (c) The seniority of military officers vis-a-vis directly recruited civilian officers will be determined by the year of allotment which will depend : (i) in the case of military officers, on the date of first commission including ante-dated if any; and (ii) in the case of directly recruited civilian officers, on the date of appointment ante-dated by two years. (d) The relative seniority of all direct recruits shall be determined by the ordef'of merit in which they are selected for such appointment on the reconunendations of the Union 1 Public Service Commission, persons appointed as a result of • an earlier selection being senior to those appoint(X[ as a result of a subsequent selection.

(e) Among those allotted to the same year, military officers will rank senior to directly recruited civil officers. Another rule which must be mentioned for a complete understanding is to the effect that Class II officers, when promoted to Class I, are directly appointed as S. S. and, therefore, can skip the lower position of D. S. S. In 1970, the promotional scheme was slightly modified, but the thrust of the argument that military engineers enjoyed an advantage remained. The attack made by the civilian wing, consisting of two groups, namely, direct recruits and Class II promotees, is against three key rules of the 1950 Scheme, viz. , Rules 5, SA and 11 and, of course, • their corresponding 1970 provisions based on Arts. 14 and 16 and the lligh Court has substantially acceded on the basis that seniority prescriptions are based on irrelevant criteria and arbitrariness is writ large in some of the impugned provisions.

The Court has struck down Rules 22B, 22E of the 1960Rules and Rules 5(2), 5(3), 5(5), 7 and 11 of the 1950 rules. However, 'the Court has circumspectly declined to open the Pandora's box and restricted ! Jie refixation o~ ' seniority and review of promotions "only from the date of the filing of the writ petition viz. 5-3-1974, because if we do it from a back date, it would be unsettling the promotions·that had already been given before a challenge is made, by the petitioners. " This comprehensive narration is sufficient to inaugurate a discussion on the merits of the contentions after a formulation of the critical issues. The points urged by the learned Attorney General are two fold. Neither Art. 14 nor Art. 16 is violated because the Army recruits and the civilian entrants do not march into a common pool within the service of the Survey of India. There are two sources or streams A. s. IYER v. v. BALASUBRAMANYAM (Krishna Iyer, J.

) I 057 which flow into the Service but remain immiscible layers. Since the / Constitutional mandate of equal treatment applies only to equals, it cannot apply to the given situation. Secondly, assuming there is united cadre, even' then Art. 16 cannot invalidate the weightage for seniority assigned to the military recruits, since sensible supportive discremen, having a rational relation to the object of the Service exists and that is sufficient panacea to cure the infirmity of differential treatme11t. He further pressed that it was perfectly permissible, having regard to the different sources, to prescribe a weightage at the time of the entry into the Service. And, in the present case, the weightage is only at the time of entry into the Service. Therbfter, they are treated as equal for all purposes of promotion and what manifest advantage is derived by the military men in their career is a consequence of the initial addition of the commissioned service for the purposes of seniority.

These positions have been contested by Sri Govindan Nair, for the respondents, who has further argued that it is not proper for this Court to upset a finding of fact by the High Court unless there be something palpably erroneous on the face of the judgment. This is true and we should not slightly interfere save where there is grave error. Before we discuss these points, we must clear the ground regarding the necessity of the military presence in the survey Service. We have already quoted from the affidavit on behalf of the Union of India, which gives condensed reasons for induction of army engineers into the Survey of India. That terse statement crystallises all that we have stated at some length earlier in this judgment. An S. o:s. and the Survey of India must go into action maybe in the war-torn area, maybe for post-truce measurements.

More military survey literature was placed in our hands by the learned Attorney General, making up for earlier defaults, to drive home the point that multifarious though the Survey's operations a. re, it ·does discharge duties secret, sensitive and strategic for Defence requirements which necessitate the maintenance of an Army Engineering component willynilly. r This backdrop serves to highlight the issues on which we may turn the focus. We may now enter the area of encounter. What was a thoroughbred Military Engineering Corps sulfured a metamorphosis by 1950 when a new set of rules of recruitment, composition and conditions of service, consistent with the new vision, rainbow of responsibi! ities and switch over to civilian departmentalisation, was brought about. 13--743 SCI. 79 A critical dissection of the present set-up yields the result : While army engineers are definitely needed and are not expendable, the civilian accent on developmental work t few years, the army wing !

md a better deal but in the next spell the civilian wing more than made up. In the next span some change occurs and a projection into the decade ahead shows that the civilians will ontnumber the army men at the next two tiers. Maybe, the Surveyor General may continue to be a 'uniformed'· engineer. We do not see the pathetic picture held out by counsel and the differences we do notice are distances away from the crea. tion of class legislation. We do not strike down the rule as constitutional! y obnoxious. Sri Govindan Nair drew our attention to Pay Commission Reports which had strongly recommended fair treatment to the civilian wing by making the higher positions realistically accessible to them. Prima facie, there is some grievance, if promotions at the topj are totally sealed off, not in law but in fact. And simmering discontent of a whole wing is no small matter. Maybe, when the apex is occupied always by 'brass' boss the working of the rules and of the department may be tilted.

We do consider that recommendations of the Pay Commission deserve Central Government's early attention. Flexible provisions for promotion to higher positions which will not make the department lop-sided, or vertical division of the civilian and military wings without injury to integrity and efficiency may meet the needs of equality. Policy is. for the Executive, not the Judicative wing. We find no unconstitutionality but discontent should not be neglected in good government. A measure o[ agreement, with marginal differences in the interpretation of the rules, emerged in the course of the debate. We may as well set it down to avoid future doubt. The learned Attorney General H. stated, with a view to silence the grievance of the . respondents, that for promotions beyond Superintending Surveyor, even officiating S. S. are considered. It is not right to contend, he said, tbat only 6n confirmation tbey are considered for promotion as Deputy Directors.

Indeed, the learned Attorney General pointed out that many Deputy Directors have been only officiating SSs. We accept this as correct. If the officiating SSs are also included for higher promotion based on merit the wind of inequity is, pro tanto, taken out ef the ci,•ilian sails. Likewise, it is useful to clarify, in the light of tbe 1965 amendment to tbe Rules providing for Class II office. rs being promoted straight as SS (not DSS), that the recruitment to tbe DSS vacancies each year and to tbe SS by promotion from Class II each year shall be as explained earlier. Sri Govindan Nair, apprehending adverse winds in reversal of the High Court's conclusion. raised fresh contentions which he was not permitted to put forward because they were new and urged only in tbe Supreme Court. Creative thinking is good, if it dawns in good time; for, according to our processual law, arguments unborne on tbe record in tbe High Court have no chance as a post-script in the Supreme Court.

For instance, he urged that commissioned officers gov&ned by the Army Act could not be governed by any oilier Service Rnles. So much so, tbe· 1950 Rules, being a deviation from the Army Rules, were invalid. We illustrate but not exhaust and, in any case, do not investigate. The social philosophy of our fundamental law is a perennial flow, rising and falling, rushing to push out obstructing rocks and slowing to erode a doctrinal distortion, tbe power being geared to tbe good of tbe people in terms of Justice, social economic and political. From this futuristic standpoint, every decision of the Supreme Court is the focal point of the battle of the tenses, of social change versus social stability. We leave these seminal issues for future consideration when they more directly demand decision. Enough unto the day is the evil thereof. We allow the appeals but intricate constitutional questions when decided by this Court to declare tbe law under Art.

141 should be an exception to the conventional rule of costs following the event, unless otber circumstances warrant. So no costs. P. B. R. Appeals allowed.