COL. D.D. JOSHI AND OTHERS v. UNION OF INDIA AND OTHERS

Citation: [1983] 2 S.C.R. 448

Court: Supreme Court of India

Bench: D.A. DESAI, V. BALAKRISHNA ERADI

Case summary

is grossly discriminatory and the choice of date is, arbitrary It is ,·alleged that tbose,qfficers wbo·had· post grad11ate qualificati6n at.

Judgment text

448 COL. b. D. JOSHI AND OTHERS v. UNION OF I"NDIA AND OTHERS / March I, 1983 .. -. ,.. [D. A. DESA1 AND V. BALAKRlsHNA ERADI, Ji. ] Ante~dating the com1nission-Meaning of-Army Instruction NO. 78/78 . dat~ 4th November 1978 prescribing on upward revision in the period. ofbenefit by ante-dating, whether discriminatory and violative ofArticles 14 and 16 of the Const/.. ·'/ution--Army lnst'ruction No. 78/78 clause (J) and Note appended there(o scope of 1 lnt~rpretation ofStatutes-NeceSsary-party-Joinder of D. D. JOSHI V. UNION 449 HELD: 1. Reckoning . seniority ii;i service from a dee1ned date of com.. _ mission in respect of the officers with P. O. oualificatil1ns or previous service in_ . i-.. Civil hospital etc. as prescribed in. the Anry Jrstructif'n is--styled as benefit. ofante-dating. [455 F-G] '· { . . . 2. 1. lf the Jan'guage ofa provision is clear, un! rnbiguous and·intelligibJe, .

91 and does not admii of two meanings; tbe court is b6und to construe in its Ordinary sense because it is Welt· recognised. that lat'! guage used speaks the mind and reveals the _intention of the· framers. If the language of the statute is clear and unambiguous and if two interpretations are not reB! Jonably possible it would be wrong to discard the plain meaning_of the words used in order to meet p. possible . ~ iniustiee. In such a situation, it would_be impermissible to call nnraid atiy exter. ,,.. nal aid of. construction· to find out the hidden meaning. The cardinal rule off . · construction of a statute is that it _should-be construed according to the intention - ~xpressed in the statute itself. [457 D-E] ,. • \ Commissioner of Income Tax Madras v. Mfs. T. V. Sundaram lylngar (P) Ltil. [1976] I S. C. C. 77@ p, 84-85; Capper v. Beldwin [1965] 2 . Q. B. 53@ 61, ref•rred to. • 2. 2. ' On a plajn grammatical construction of para 6 (a) (b) and (c) of· Arf»y Instruction ~O.

74,_ of 76, it js clear ~t the bCnefit of ante-dating the t... commission will be available-at the time of being comm\ssioned as a'"n officer of·the Army Medical Corps i. e. at-the_ tilne of . ~ppointment a_nd the quali- · •. ficatiOns must have- been acquired prior to- joi_niilg the AMC. The expressions uafthe tiine of appointment" and "higher qualifications obtained -prior fo appointment" provided a- terminus aquo for the eligibility of the benefit when1he benefit of abte-dating can bo gnj0ted and claimed. [457 C-D] ! --- "! I - i- 2. 3. The _object, ihe purpose and the intention_ und~;lying the provis·ions waS to compensate for. the extra· time, money an~ energy spent in acquiritt. a post gradoa(e qualification equipped with which the men enter serVice and this object, purpose or h:itention uriderlying.

_the provision'_is clearly manifest in the language u&ed in the rele:Vant "parag~aphs of the Army, Instiuetion bearing on the subject by providing that eligibility f01'R:aitiin_g the benefit of S:nte-datii:ig the commission, namely, having a post gractllate qualification· shall be taken into account at the time of eoJering the service. Two pre-conditions have to. be fulfilled before the· benefit can. be acquired i. e. (! ) the candidate must have a post-graduate qualification-obtained prior to appointment, and that such _qualificatiop- ·must have been acquired and inuSi be available at the time of appointment. TberefOre, not, only the language of t~e- relevant provision IeaVes no room for doubt 'but. the object and intention underlying the provision clearly buttressed the meaning of the provision. [458·F-H, 459 A] . · 3. 1.

The enlarged period of ante-dating \he commi;sion introduced from · ' April 1;1978 and made admissible to only those ehtering on or after 1-4-78 cannot be ~aid to be either violative of Article 14 or 16 of the Constitotlon. [463 D-E] . ' II'·~ , .. '•', ' . ' 450 SUPR8MB COURT REPORTS (1983] 2 S. C. R. 3. 2. An employer has a right to grant incentive for attracting better qualified persons to the servi� offered by the empJoyer. If the incentive is devi· sed with a view to offering inducement to thoso wavering whether to enter a certain service or not those who were already in service and had that benefit once, cannot be heard to say that this new incentive should be retrospectively enforced so as to give them the same benefit. No incentive can be retrospective, though conditions of service can be retrospectively made. [460 F-H, 461 B] 3. 3. The Note appended to the amended Army Instruction No.

78/78 providing the benefit of enlarged period o:f ante-dating being made available to new entrants only will have no pernicious tendency of dividing a homogenous class. In the matter of incentive offered at the time of entering the service, there is no homogenous cl;;tss. The new comers may become members of the class after being commissioned. They are outside the cadre before entrance. They do not belong to the class of existing members of the AMC. They derive the benefit of ante-dating simultaneously with becoming the members of AMC. They do no t get any benefit denied to others after becoming the members as benefit of ante . dating is available at the time of appointment only. Recruitment and Retirement arc a continuous process. Those who are recruited at the relevant time will have to satisfy the conditions for recruitment then in force and would be entitled to tho benefits that may be available tO'the now entrants. [462 B-D, F-Gl 3. 4. In Union ofIndia and Anr. v. M/s.

Parameswaran Match works etc. [1975] 2 SCR 513, the Supreme Court held that the choice of a date as a basis of classification cannot always be dubbed as arbitrary even if no pardcular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in . the circumstances of tho case. In the present case, the object underlying the benefit extended to the new entrants determines the choice of date. Inducement for attracting fresh recruits from the market must come into force by a certain date. The employer can legitimaiely determine keeping in view the demands of public service, from which date the inducement will be available. In such a situation choice of date is not wholly arbitrary and has not the tendency to divide a homogenous class. There is no differential treatment. The district possibility is that there . would be vertical splitting of a homogenous class. [462 H, 463A-D] 3. S.

The benefit of ante-dating was devised long before tho recommen dations of the Third Pay Commission were formulated and each petitioner got the benefit consistent with the Army Instruction in force at the time of being commis.. sioncd in the AMC. A subsequent enlargement of the period, not pursuant to the recommendalion of the Pay Commission and held out as . in inducement for recruitment. from the market cannot be claimed as a matter of right by those who have already availed of tho benefit of earlier occasion. [464 A·C] Purshotam LalDhi111ra and Ors. v. Union ofIndia, AIR 197� SC. 1088. referred to. 3. 6. The contention that limited retrospectively is given by impugned Army Instruction, is not correct. It is jefact a case of marginal adjustment showing fair play in action. (465 E-F) . ' b. O. JOSHI v. UNION (Desai, !. ) 4.

Impleading or proper and necessary parties to an adjudication will arise 9nly in ciises of individual claim or claim of seniority by one 1>erson against ·specified others, but'a viously. the person who spent sometime in acquiring post graduate\ qualification, the bene~t of which w0uld be available to the employer, would be at a comp'lirative disadvantage in the matter of seniority and futnre promotion compared to one who came with only graduate qualification. It is this difference between a graduate entrant and entrant with post graduate qualification which was sought to b~ compensated by granting . the benefit of ante-dating the commission. The object, . -{ I the puprose and the intention underlyh1g the provision was to compensate for the extra time money and energy spent in acquiring 1 post graduate qualification equipped with which the men enter service and this object, purpose or intention underlying the provision is clearly.

manifest in the language used in the relevant paragraphs of the Army Instruction bearing on the subject by providing that eligibility for gaining the benefit of ante-dating the commission, namely, having a post graduate qualification shall be taken into account ' . at the time of entering the service. ' Two pre-conditions have to be fulfilled before t~. e benefit can be acquired i. e. (I) the candidate must , have a post-gradute qualification obtained prior to appointment, and (2) that such qualification must have been acquired and must , b. e available at the time of appointment. Therefore, not only the language of the relevant provision leaves no room for doubt but the 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, bow would their case be differentiated or . msm v. UNION (Desai, J. ) 461 of ante-dating the commission for persons joining AMC after having . acquired post-graduate qualification was given as an incentive with ·a view to attracting more persons who have already acquired post· graduate qualification. Those who were already in service and had· that benefit · once, cannot be heard to say that this new incentive should be retrospectively enforced s~ as to give them the same benefit. It is difficuli to conceive that an incentive can be retrospective though it is indisputable that conditions of service can qe restrospectively made.

And the unfairness of the approach of the petitioners becomes manifest from the fact that while maximum period of antedating prior to December 31, 1965 was It years when petitioners entered AMC, which was reduced to one year effective from January I. 1965, none of them ever suggested that this b. eing a condition of service rbust uniformly apply to those who would be covered by the conditions of eligibility and thereafter the period must be reduced. But subsequently when the period of ante-dating was enlarged by the impugned Army Instruction which ·became effective from April I, 1978, it is now clamoured that this benefit must be extended to those who have entered AMC way back as early as November, 1949 and in the process give the petitioners and similarly situated persons a march over those who are already seuior to them in the common seniority list. The degree of unfairness of the claim of petitioners·can .

be demonstrably established by working out the position of·some petitioners on the footing th~ each one oft. hem is entitled to longer period of ante-dating the commission. Isl petitioner Col. D. D. Joshi was commissioned· on July 25, 1954 and after obtaining the benefit of ante-dating then aviailable, he was put in the seniority list as if he bad been commissioned on January 25, J953. Now if he is given the benefit of ante-dating the commission by 2t years, his deemed date of joining the AMC would be January 25, 1952. Io the process, he would scope a march over 21 con-missioned officers who are already . senior to him in the seniority list. This. is equally true of all the 7 petitioners but in the case of petitioner No. 3-Col. V. S. Sharma, he would score a march over 41 commissioned officers already . senior to him. One M. B. L.

Sexena who is not one of the petitioners but who is similarly situated, if now held entitled to benefit of 2t years ante·dating, he would jump over 50 commissioned officers senior to him. In the case of petitioner No. 7, he would supersede ' 95 o! fi9ers already senior to him and agood number of thellj are .. j .. " • -' ' ' 462 SUPRBME COURT REPORTS (1983] 2 s. c. R. persons who had acquired post graduate qualification, of course, after joining the service. Could one ever think of an incentive giving such an undeserved advantage ? The answer is obviously in the negative. The next question is does this incentive divide a homogeneous class? In the matter of incentive offered at . the time of entering the B. service, there is no question of a homogeneous class. The new comers may become members of the class after being commissioned. They are outside the cadre before entrance. They do not belong to the class of existing members of the AMC.

They derive the benefit of ante-dating simultaneously with becoming a member of A,MC. They do not get any benefit denied to others after becoming. the members as benefit of ante-dating is available at the time of appointment. There may be an enlargement of the cadre. There would be retirements. Recruitment and retirement are a continuous process. Those who are recruited at the relevant time will have to satisfy the conditions for recruitment then ip force and would be entitled to the benefits that may be available to the new entrants. If the principle canvassed for on behalf of the petitioners is taken to the logical end, it would lead to a startling result. Suppose a rule is now made· that only persons with post graduate qualification would be qualified for being commissioned iμ AMC, can anyone contend that as in the past mere graduates were recruited and therefore, ignoring the revised minimum eligibility qualification, a •graduate must be considered for recruitment.

Therefore, in respect of benefits which are available for certain qualification at the time of entering the service, the same having been made available, a revision of the same at a. later date to attract fresh entrants cannot be retrospectively . claimed by those who had already entered service knowing full well the benefit then avail· able. Therefore, there is no substance in the contention that the note ~ppended to the;am. ,nded Army Instruction No. 78/78 providing the benefit of enlarged period of ante-dating being made available to new entrants only will have the pernicious tendency of dividing a homogeneous class. It was then contended that the selection of the date April I, 1978 is thoroughly arbitrary and has no national nexus to the objects sought to ):le achieved... Reliance was placed on Union of India & Anr. v M/s\Parameswaran. Match Works etc. (') In that case this Court (! ) [1975) 2 S. C. R. 573. .... • • D. D. JOSHI v. 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 homogeneous class by the 8 choice of the date. The object underlying the benefit extended to the new entrants determines the choice of date. Inducement for attracting fresh recruits from the market must come into force by a certain date. The employer can legitimately determine, keeping in view the demands of public service, from which date the document will be available. In such a situation choice of date· is uot wholly arbitrary c · and has not the tendency to devide a homogeneous class.

'we see no classification amongst those who enter AMC after acquiring Post· graduate qualification determined by length of ante-dating benefit because each one at the relevant time obtained the advantage of ante-dating as it was then fo force. There is no differential treatment. There is no division of a homogeneous class. The distinct 0 possibility is that if petitioner's contention is accepted there would be vertical splitting of a homogeneous class. It is therefore, difficult to accept the contention that the note under the impugned atnended Army Instruction ·is violative of Art. 14 or Art. 16. It was next contended that the Third Pay Commission recommended that doctors entering service of the Union of India with post-graduate qualifications should be suitably recompensated for the time spent in acquiring these qualifications.

It was urged that this recommendation was implemented in Central Government Health Service and it is this recommendation which has promoted the Union of India to enlarge the period of ante-dating. It was urged that by limiting the benefit only to th'ose who would be commissio· ned on or after April 1,11971, the respondents are guilty of according discriminatory t_reatment in the matter of public employment, and it is violative of Article 16 of the Constitution. Reliance was placed on 2 Purshotam Lal and Others v. Union of India & Anr ( ). , wherein this G Court held that when a Pay Commission makes recommendations and the Government accepts the same, it is bound to implement the recommendations in respect of all Government employees. And if it does not implement the report rellarding some employees only it ff (I) 240 U. S. 30. gl A,IR 1973 S. (;. JQ88, 464 SUPRBMB COURT RBPOQTS (1983) 2 S. C. R, commits a breach of Arts. 14 and 16 of the Constitution.

It is diffi· cult to appreciate how this decision would help the petitioners. The benefit \! If ante-dating was devised long before the recom- ~· ... mendations 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 8 enlargement of the period, not pursuant to the recommendation of the Pay Commission and held out as an inducement for recruitment from the market cannot be claimed as a matter of right by those who have already availed of the benefit on earlier occasion. It was then contended that if extending the benefit of enlarged period of ante-dating to all ;irrespective of the date of entry would have the tendency of unsetting the seniority list, that should not weigh with this Court because on . such nebulous ground violation of constitutional mandate cannot be overlooked.

Reliance was placed on General Manager, South Central, Railway, Secundrabad and Anr. etc. v A. V. R. Siddhanti &Ors. ('). We again fail to see how this decision helps the petitioners. The fallacy underlying the submission is that this benefit of enlarged period of arite-dating is claimed as a condition of service uniformally applicable to all persons qualifying for the same ignoring the conditions under which it can be claimed. The contention overlooks the basic condiiion subject to which benefit can be claimed and it is that it is available at the time of entering the service as a compensation for having a higher qualification compared to their simultaneously entering service with lower qualification. And undoubtedly an inducement held out to future entrants, if ex·· tended to those who had entered more than 25 years ago, the inducement so offered would adversely affect a large number of persons who need not be subjected to unfair treatment for no fault of theirs.

There are hundreds of officers, in all 1227, who are hol ding post graduate qualifications today, may be having acquired the same after joining service but there being )lo qualitative difference in the service rendered by them and those who entered with PG qualification, way-back in 1948 or 1949 or 1953, if the contention is accepted the petitioners would score a march over others having now the same qualificatiolJ tllereby giving th~ . p~titioners an 11nfair (1) [1974) 3 S C. R. 207. D. D. JOSHI v. (Desai, ! ,) 465 advantage which ought not to be given, if approaching the matter from that angle. would not violate any constitutional mandate.

J The next contention is that if giving the petitioners benefit of enlarged period of ante-dating would unsettle :a settled seniority list, the respondents have already given limited retrospectivity to the revised benefit by providing in the note to the impugned Army Instruction 78/78 that : "The seniority officers who joined with PG qualifications during 1-1/2 years prior to 1. 4. 78 will be protected by grant of requisite ante-date so that they 'do not become junior to officers who have joined later with equivalent PG qualifications. " It was urged that the provision in the note would benefit. some of those who joined with PG qualifications even prior to April I, 1978 in a limited · way, and thus its retrospective operation is implicit in the note. There is no merit in this contention. In fact the provision demonstrably establishes fair. play in action. An illustr~tion would ... J expose the fallacy underlying the submission.

'A' joined with PG qualification and six months full time service on 3 lst 'March, 1978, 'B' joined with the same qualification and eligibility on April 2nd, 1978. Both are wholly similarly situated. •A' would get ante-date benefit of 1·1/2 years and 'B' would qualify for 2! years. 'B' tbongh a later entrant with same qualifications would score a march over 'A'. This would be extremely unfair. To protect such cases, it is provided that those who joined with PG qualifications during 1-1/2 ~years prior to April 1, 1978 will be protected by giving of requisite ante·date to protect their seniority over later entrants who qualified for larger period of ante-dating. It is idle to contend that limited retrospectivity is given to impugned Army Ia. truction. It is in fact a case of marginal adjustment showing fair play in action.

On behalf of the respondents, it was urged that if the contention of the petitioners is accepted which could compel the first respondent to re-settle the seniority list, those over whom peti· tioners and those similarly situated would score a march should have been impleaded as respondents and in their absence, no. relief can be given to them. We would not accept this conter. tion for two reasons : (i) that the decision in General Manager, South Central Railway Socundrabad etc. would permit us to negative the contention, this being not a case of individual claim or claim of seniority by one · person against specified others, but a question of interpretation of a provision and which interpretation could be given because it would be \ljl)ding on the f! ni()l! of India, \h~ presence of q\b~rs is 1111n~~~~"' 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 8 ground that proper parties were not before the court. But the second reason why we should not examine this contention is that we are not inclined to grant any relief and the matter ends there. Having examined the matter from all angles, we find no subs· tance in the contentions raised on behalf of the peiitioners and therec fore all the petitions are dismissed with no order as to costs. S. R. Petition dismissed.