http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 27  

PETITIONER: COL. A. S. IYER & ORS. ETC.

       Vs.

RESPONDENT: V. BALASUBRAMANYAM & ORS.

DATE OF JUDGMENT24/10/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. CHANDRACHUD, Y.V. ((CJ) UNTWALIA, N.L. SHINGAL, P.N. KOSHAL, A.D.

CITATION:  1980 AIR  452            1980 SCR  (1)1036  1980 SCC  (1) 634  CITATOR INFO :  E          1987 SC2359  (6,16)  D          1989 SC1624  (11)

ACT:      Survey of  India (Recruitment  from Corps  of  Engineer Officers) Rules 1950 -Service consisted of Army and Civilian Officers-Seniority and  promotional opportunities  for  Army Officers different  from Civilian Officers-Rule if violative of Articles 14 and 16 of the Constitution.

HEADNOTE:      Rule 5  of the  Survey of India (Recruitment from Corps of Engineer  Officers) Rules  1950 provided  that  on  first appointment an  officer would  be in  the  grade  of  Deputy Superintending Surveyor  in Class I Service of the Survey of India and  that seniority of military officers inter se will remain the  same as  in the  Army. Sub-rule  5 of  this rule provided  that  among  those  allotted  to  the  same  year, military officers  would rank  senior to  directly recruited civilian officers. Rule 11 of the Rules which dealt with the method of  recruitment to  Survey of  India Class  I Service provided that  all recruitments  to the  Cadre would  be 50% from the Corps of Engineer Officers, 25% from promoted Class II  civilian  officers  and  25%  from  direct  recruits  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 recruits and Class II promotees impugned the validity of the 1950 Rules  on the  ground that seniority prescriptions were based on  irrelevant criteria  and that  discrimination  was writ large in the impugned provisions.      The  High  Court,  accepting  the  contentions  of  the civilian officers,  struck down  certain rules  of the  1950 Rules  as   violative  of   Articles  14   and  16   of  the Constitution. The  High Court  did not accept the contention of the  Government that the nature and character of the work

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 27  

done by  the Survey  of India was essentially connected with defence purposes because the work done by the Department for the Army  was done along with several other services carried on by it, namely, with the development projects, preparation of maps  for various  Ministries of  the Central  and  State Governments, public  sector undertakings and other agencies; assuming that  the work  was related  to  defence  purposes, civilian officers  were employed by the Department to do the same work  and during  emergencies, civilian  officers  were called upon  to serve  in border  areas. The  Department had civilian budget.  For these  reasons the  High Court came to the  conclusion   that  there   was  no  ground  to  justify classification made  under the  impugned Rules  between  the Army officers  and civilian  officers because  the  recruits from the  army could not be said to be better qualified than the  civilian   direct  recruits   and  that  there  was  no justification for  adopting any  discrimination in favour of the Army  officers. The  impugned rules  were struck down on the ground  that there  was no  reasonable  nexus  with  the object sought to be achieved. 1037      In appeal  to this  Court it was contended on behalf of the State that the constitutional mandate of equal treatment applies only to equals and in the case of recruitment to the service the  sources of  recruitment of  Army personnel  and civilian  entrants   are  different  and  remain  different; weightage is  given only at the time of entry and thereafter officers are treated as equals for all purposes of promotion and the advantage gained by the militarymen is a consequence of the initial advantage of the commissioned service for the purposes of  seniority. Assuming  that there  is  a  unified cadre, since  there exists a rational relation to the object sought to be achieved Article 16 cannot be said to have been violated.      Allowing the appeals, ^      HELD: The  1950 Rules  are valid  in that  they have  a prominent  feature   which  is  basic  namely  the  military nominees do not shed their army service and merge into a new service  to   undergo  partial  absorption  but  preserve  a substantial separateness. [1054 B-C]      1. Without  the military  engineers the Survey of India would  become   a  functional  failure  in  discharging  its paramount duties in times of war and peace. The work done by the army wing of the Survey of India is far too important to be played  with and such work is best done by that wing. The military recruits  are commissioned  officers with  three to six years  of service  with certain salary scales and period of service.  Giving due  weight to these factors rule 5 lays down the  criteria for  seniority as  between  the  military sector and  the civilian  sector. For the very efficiency of the Survey of India a substantial Army element is essential. Army engineers  are invited  into this  service not  because this department  historically belonged to the defence forces but because  in hours of crises it cannot minister to one of the major  objectives of  its creation  if it  does not have engineers with  military training,  courage and so on. It is fairly  intelligible   and  basically   equitable  to  allow military  engineers  credit  for  commissioned  service  and protection of already earned higher salaries. [1059 E-H 1060 A-B]      2. To  attract engineers  into the  Survey of  India by assuring them  all that they were enjoying in their existing service, namely,  credit for  the years  under commission in reckoning seniority  and fitment  of their  salary and other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 27  

benefits is  not discrimination  or favoured  treatment  but justice to  those whom,  of necessity,  the  service  wants. [1060 C-D]      3. Once  it is  agreed that  at the  entrance point the Army engineers  are justly given credit for the commissioned service which  they carry  with them  there  is  no  further discrimination while  in service on the score that they come from the  Corps  of  Engineer  Officers.  All  that  happens thereafter is  merely the manifestation of initial advantage of credit for commissioned service. [1061 D-E]      Mohammad Shujat  Ali &  Ors. v.  Union of  India & Ors. [1975] 1  SCR 449  at 481; Ram Lal Wadwa & Anr. v. The State of Haryana  & Ors.  [1973] 1 SCR 608 at 635; State of Punjab v. Joginder  Singh [1963]  Supp. 2  SCR 169  at 189;  S.  G. Jaisinghani v. Union of India & Ors. [1967] 2 SCR 703; Ganga Ram &  Ors. v. Union of India & Ors. [1970] 3 SCR 481 at 488 referred to.      4. The  1950  Rules  bring  out  certain  incidents  of service boldly.  Notwithstanding the  fact that they entered the Survey of India service. the Army 1038 officers continue  to wear  Army uniforms, they get notional promotions in the Army provided they pass the requisite Army tests when  they earn corresponding promotions in the Survey of India. They can be recalled by the Army and they continue to be  under the  control of  the  Commander-in-Chief.  When inefficiency is  noticed they can be called back to the Army for being  dealt with  appropriately. A  conspectus  of  the facts and circumstances governing the service makes it clear that there  is no integration of the Army personnel into the Survey Service.  Without such  complete integration Articles 14 and 16 cannot be invoked. [1064 E-G, 1065 A-B]      5. Whether 25% or 50% induction from military engineers is enough  is a matter of policy for which the judiciary has no genius  and the  administration has  a reach of materials and range  of expertise, so that Courts must keep out except where rational  criteria, or  irrelevant factors  mala  fide motives or  gross folly  enter the  verdict. In  the instant case reservation of 50% of Class I service for Army Officers cannot be  called irrational,  impertinent  or  improvident. [1065 F-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 1745- 1755 of 1975.      From the  Judgment and  Order  dated  5-9-1975  of  the Andhra Pradesh High Court in Writ Petition No. 1269/75      L. N. Sinha, Attorney General for India, E. C. Agarwala and Girish Chandra for the Appellants (In CA 1755/75).      P.P.  Rao,  M.S.  Ganesh,  A.K.  Ganguli  and  T.V.  S. Narasimhachari for the Appellants in Ca 1754/75.      P. Govindan  Nair,  A.  K.  Sen,  Bishambar  Lal,  Miss Munisha Gupta  and Mrs.  Baby Krishnan  for  RR  1-2  in  CA 1754/75 and CA 1755/75.      The Judgment of the Court was delivered by      KRISHNA IYER,  J. These  two sister appeals have gained access to  this Court  by certificate  under Article 133 and project a  ’service dispute’  between the  Army and civilian wings  (both   engineers)  of   the  Survey  of  India.  The constitutional missiles used, with success, in the encounter in the  High Court  by the  ’civilians’ to  shoot  down  the ’military men’s’  preferential  claims  under  the  relevant service rules,  are Articles  14 and  16. And  here, in this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 27  

Court, the  Army  Wing  is  fighting  back  to  repulse  the civilian  wing   by  defusing  the  war-head  of  these  two fundamental rights. Military imagery vivifies the litigative havoc when  sectors of  our public  services  go  to  battle against each other, though there is so much else to wage war against in the service of the people.      A narration  of facts  falling within  a short  compass will unfold  the real  issue, revolving  round  the  salary, seniority and de facto promo- 1039 tional  disparity  inter  se,  which  has  sparked  off  the forensic war.  The Union  of India,  one of  the appellants, supports the  stand of  the military  sector of  the  Survey Service, if we may so designate it. A survey of the story of this conflict  suggests the  sombre  thought  that  unending litigation, affecting  the public  services with  inevitable impact on  morale and efficiency, is becoming an epidemic in courts even  among strategic  cadres and sensitive sectors-a matter almost  for consternation  which surely must kindle a search for  constitutional alternatives  for  resolution  of service questions  without large  numbers of  civil servants being locked  in long-drawn-out  legal struggles.  Does  the experience of 30 years under the Constitution indicate that, save where  fundamental constitutional issues arise, Whitley councils,   Service    Tribunals   and   other   specialised adjudicatory agencies,  with the imprimatur of finality, are a more pragmatic mechanism of Service Justice ?      The  factual   setting,  sufficient   to  unravel   the constitutional contention,  may now  be delineated. Both the appeals against  the judgment  of the  High Court  of Andhra Pradesh cover  the same subject matter, although one of them is by the Central Government and the other by the members of the Survey  of India  from among  the Defence personnel, and both have  been resisted  on the  same basis by the civilian recruits to  the Service.  A common judgment will dispose of both the  cases but we must begin from the very beginning to get a hang of the controversy.      The genesis  of the  Survey of  India, its  life before birth,    its    genetic    composition    and    hereditary characteristics, mould  the structural  engineering  of  the Service and, therefore, have a bearing on the issues debated before us  both sides.  While the  High Court  has, to  some extent, slurred  over the chronicle, both sides have heavily stressed before  us the saga of the Survey of India, each to lend strength  to its  point of  view. So,  a peep  into the bicentennial biography of the Survey of India is a necessary exercise as a starting point. To blink at history is to lose the living link with the Past and to stumble in the Present. Yet strangely,  none such,  i.e. history  of the  Service to serve as  a lucid  background is given in their statement by either party, save incidentally. Unfortunately, the fine and fruitful art  of presenting a luscent written brief is still in the  long Indian  Year of  the Infant and we have to cull out and  piece together materials which should have been set out as  a scenario  of meaningful  development. If  the High Court has  gone wrong  the blame  must fall  in part  on the Central Government which could and should have projected the story of  the Survey of India, its functional complexion and recruitment rationale 1040 instead of  leaving judges  to run  around the  corridors of padded paper  books or  launch on  speculative surmises. The State, the  largest and resourceful and most affected public litigant,  leaves   much  to   be  desired  in  the  written presentation of its cases. The other parties fare no better,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 27  

though. And instalments of additional information during the progress  of   the  hearing   has  had   to  make-do  for  a comprehensive unfoldment. Better late than never !      The story  of the  Survey of India has been narrated in its brief  autobiography, ’Our  Department’, produced on the eve of  its bicentennial  in 1967.  This department was born during the  days of Lord Clive under happy Army stars, had a military upbringing  and, in  its brilliant career, achieved lustorous exploits. Starting from an accident of history-the request of  a historian,  Robert  Orme,  to  an  East  India Company administrator,  Lord Clive,  for a map of Bengal-the Survey of  India sprang to life in embryonic form when Major Rennel was appointed to execute this survey and, thereafter, was cradled  by the  Army but spread out to become a dynamic department and  development instrument in the decades ahead. In war  and in  peace, in  building the nation and defending its security, in ’civilian’ ventures and military operations the Survey  of India  has become  a National  Service in the role of  adviser on  survey  data  and  kindred  adventures. Indeed, almost  all ministries of the Central Government and many States  have used  the services  of the Survey of India during the  several Five-Year  Plans. Look  before you leap’ becomes in  development terms,  survey before you start, and so it  is that  in 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, diverse  and widely  scattered  work,  Survey  of      India has  built up a unique reputation both within the      country and  outside as  a  sound,  distinguished,  and      great Survey  Organisation of  the world, progressively      marching forward.  expanding, adapting  and modernising      itself and  continuing its  contributions  to  science,      security and development.           The personnel  of Survey of India can legitimately      take pride in the fact that they belong to this ancient      and great  organisation, to  whom  a  noble,  rich  and      priceless heritage  has been  bequeathed-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 1041 characters because  almost every  Department of governmental activity with  welfare potential  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 of India,  this Department  has had  a hand.  The  different dimensions and  directions in  which the Survey of India has served the nation and science as 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  and  consolidation  of  defence  and development-a versatile genius 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  country’s defence.  The Survey of India has      to organise surveys and work well ahead to provide maps      at the  right  time  and  of  the  right  places  where

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 27  

    campaigns might be fought in war.           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-an assignment which cost      the Department  many precious  lives and  many years of      hard work.           The  bulk   of   military   survey   and   mapping      requirements are  met by  Survey of  India. Though  the      military survey  service 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      providing the  basic knowledge  of the land for all its      users." 1042      The  Surveyor   General,  for   reasons  of  functional importance,  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 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  out  the  interlacing  of activity. Obviously,  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 operations 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  Department,   its  adventurous   spirit  of   climbing mountains,  penetrating   wilderness   and   entering   into forbidden regions  cannot  be  minimised.  Lt.  Col.  Sandes writing on ’The Military Engineer 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 European in the small      country.  He  must  have  powers  of  organisation  and      observation: courage,  determination and  endurance. In      the ordinary course, 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  reconnaissance  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      military duty with engineer units other flash-spotting,      sound-ranging and  triangulating in France and Belgium:      and others again reconnoitering and surveying in any or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 27  

    all of three continents. They worked in Salonika, North      and  South   Russia,  Italy   Gallipoli,  East  Africa,      Mesopotamia, Egypt, Syria, Persia, 1043      and on  the shores  of the  Caspian.  One  commanded  a      brigade in  North Russia,  another led  a Persian army.      Ten officers  of the  Survey of  India were  killed  in      Action, or  died on  service, during the Great War, and      thirteen were  wounded. Many casualties occurred in the      lower  ranks.   Such  were  the  contributions  of  the      Department towards  victory in the greatest struggle of      all time.  They form  a fitting climax to its record 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 to 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   were      considered to  be civilian,  including  their  military      officers-in-command, and they were only attached to the      Army 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  Survey of India, which except for the      Artillery Survey Section, Royal Artillery, 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  on  survey  and           mapping.      (b)  Provision  of   maps  required   by  the   Defence           Services, covering  India, Burma,  Afghanistan and           Iran. 1044      (c)  In the  event of  a  war,  to  provide  and  equip           firstly two Fd Survey Companies and two Survey HQs           for 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"  and  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  Officers were all military men while Class II men 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, much

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 27  

    longer, very much longer." The military commitments of the Survey of India 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  of 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 all 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 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 Defence operation  and civilian  must therefore  accept  the crumbs as  shudras of  the Service.  No! Most of its work is peace-time activity of a fundamental, though invi- 1045 sible character  to promote development in its multitude and magnitude and, 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  of the  country although  its talents  are  not allowed to  grow into thistles but to serve wherever needed. If 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 indispensability 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 instant’s notice.  The Survey  of  India,  with  its  signal service to  the planned  progress of the people, has a tryst with national  security and  an everyday  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 on 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  of the  Constitution,  this military  limb   separated  from  the  Defence  Forces,  was constituted into  a Civil  Service with the Surveyor General 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 27  

were 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 classifica- 1046 tion and  administrative charge,  the Survey  of India was a member  of   the  Agriculture  Ministry,  of  the  Education Ministry and  currently, perhaps,  correctly belongs  to the Ministry of 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 ambidextrous. But  that is  not really decisive of the issue before us.  What we  have to  understand is  not so much its genetic transmigration  as such  or pedigree  table but  the nature of  the service  the Survey  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 pigeonhole  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  army oriented.  Not  merely  because  of  heredity  but  markedly because of  the nation’s  potential  demands  and  perennial expectations from  this specialised  Service, not  merely in emergency but  to be  always on the qui vive. We gather from the affidavit of the Senior Director, on behalf of the Union of  India,   that  the  army  component  is  an  inalienable 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 sources 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  Officers 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  Officers are  kept in  Survey of                India which  provides the  ideal  ground  for                training and  experience  of  these  officers                during  peace   so  as  to  keep  them  fully                competent technically  in the  event of a war                or emergency.           In order  to maintain  an adequate balance between      military and  civilian officers,  and  to  attract  the      higher type of Corps of Engineer Officers to the Survey      of India, 50% of 1047      the total  number 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 ?

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 27  

War  means   advance  into  or  withdrawal  from  territory. Operations    involve    identification    of    topography, climatology,   environmentology,    location   of    defence positions, marking  of marching and retreating positions and artillery targets  and paratroop  landing positions, keeping secret strategic  centres and  sealing them  off as  out  of bounds-and a  host of other 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  divisions 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  emergency and  occasions of external aggression, before and  after. The Survey of India must be geared to the goal of  national security  if it  is 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 of forming a  separate Survey of India, no more a wing of Army. The object  was understandable. A permanent yet considerable number of  technical personnel  virtually idle  during peace time was  a luxury.  Nevertheless, an  instrument was forged which  preserved  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 unique  service anatomy as an administrative experiment  in the  Darwinian art of survival of the  fittest. We  see nothing  strange in this unorthodox composition, although  attempts 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:-           (a)  They   suffer   due   to   lack   of   higher                opportunities of  promotion  to  Brig.  Major                General, Lt. General 1048                and General  by their  volunteering  for  the                Survey of India.           (b)  They  can   utmost  expect  to  get  military                pension as  a Colonel  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  protection  of      seniority and  pay in  order to partly compensate their      losses,  no   Corps  of  Engineer  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 rules

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 27  

    which have been framed based on the differences between      the  various  sources  of  recruitment,  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 substantiated on      the basis of valid classification."      At this  point we must eye at close quarters the Survey of India (Recruitment from Corps of Engineer Offices) 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." 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 exami-              nation 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 Surveyors (hereafter referred to as SS)  Deputy Directors and Director, the 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 career  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 remain  under  military control and  are liable  to be  called back for regular army service. It  is  a  kind  of  provisional  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. Then 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 during the first 20 years of commissioned service on his own

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 27  

request.  Even   thereafter,  with   the  approval   of  the Government he  may revert permanently to military duty, save in the case of 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 1050 retires from  the army  only for  the reason  that they have attained the  requisite age  limit. Such  persons under 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 permanently to military duty if  he is  no longer  needed in  the Survey of India on account of  reduction in strength or unsatisfactory work. He may also  be  reverted  temporarily  to  military  duty  for grounds given in Rule 4(f).      Another remarkable  rule is  Rule  8  which  speaks  of wearing military  uniform while  in civil  employment if the incumbent is  willing  to  observe  the  courtesies  due  to military officers  of superior  ranks. Rule  9 is  extremely significant and reads thus:           9. Military  Promotion: A  military officer in the      Survey of  India is  expected to keep himself efficient      as an army officer and will have to pass such promotion      examinations, etc.  as  may  be  laid  down  for  other      military officers  of his rank and corps; such military      confidential reports will be submitted on him as may be      required  by   the   military   authorities.   Military      Confidential Reports will be initiated and submitted in      accordance with the procedure laid down in Special Army      Order 24/S/51 as amended from time to time.           Military officer  in the  Survey of  India will be      considered for  military substantive  promotion in turn      with others  in their  corps and their fitness for such      promotion will be judged by their confidential reports.           After  completing  his  normal  period  as  a  Lt.      Colonel an  officer will  be eligible  for promotion to      full Colonel and above provided that:           (i)  he is  a substantive Director or above in the                Survey of India;           (ii) there is a vacancy in the number of posts for                full Colonel  and above reserved for military                officers in the Survey of India.      Rule 10 is also meaningful because the army officers in the Survey  of India  when they rise to higher positions get equivalent rise  in the  Army. There  are a few more aspects which perhaps may 1051 complete the story but the thrust of the submissions made by the learned  Attorney General on the strength of these rules is that  the Army  Engineers  are  not  integrated  with  or incorporated into  the Survey  of India  Class I  Service in toto. There  is a  partial assimilation  but  a  substantial separation persists.  Once an  Army Engineer, always an Army Engineer, is the gist. Absent integration, Art. 14 is out of bounds-such is  the cumulative  effect of the Service Rules, 1950 according  to the  learned Attorney  General.  We  will presently examine  his claim  which has been rejected by the High Court.      Indeed, the  pivotal point  of this case is perhaps the nature of  the Service with special reference to Articles 14 and 16,  viz., the  integration of  the two  sources into  a common pool  and the  impermissible de  facto bifurcation of the two  strands in  promotional streams in the years ahead. Also, the  myth of  Defence needs and consequent preferences

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 27  

for military recruits. The High Court rightly formulated the crucial question when it stated:           Thus, the bone of contention of the respondents is      that the very nature of the work undertaken and done by      the Survey  of India is related to Defence purposes and      the officers  recruited from the army engineering corps      are specially trained for this purpose. This, according      to  the   respondents,  is  the  reasonable  connection      between the  classification  and  the  object  that  is      sought to  be served  in recruitment to Class I service      of the Survey of India.      The conclusions  reached by the High Court also deserve to  be  set  down  at  this  place  to  facilitate  a  clear understanding of  our approach and the basic finding of fact reached by  the High  Court. The  respondents  have  heavily relied upon  this finding  and have  legitimately lashed the appellants’ plea  as  unpresentable  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  affidavits      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      enunciated in Articles 14 and 16, it would be futile to      reply to  that argument  by saying  that the  rules  so      provide. In the 1052      later affidavits  some attempt  is sought to be made to      point out that the nature of the work carried on by the      Survey 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 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      work 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 number 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 27  

    of India  appears to  be a  civilian department  with a      civilian  budget.   Further,  whenever   there  is   an      emergency 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 1053      on by the Survey of India department is largely defence      oriented.      Even at  this stage,  we 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 Survey of India department.      But as  in 1950,  1960, 1962  and 1974  Rules generally      show, the  work done  by the  department is essentially      civilian in  character. The impugned rules will have to      be 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      recruited  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      favour  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 II 1054      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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 27  

    The only  conclusion that  is possible  from the  above      discussion is  that this  classification 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                of 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 on  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 Commission in the qualifying examination.           (5)  Among   those  allotted  to  the  same  year,      military  officers   will  rank   senior  to   directly      recruited civilian officers. 1055      Rule   5A    deals   with   promotion-officiating   and substantive. A  qualifying two-year  probation and a further three years’  service are  a sine  qua non  for  substantive promotion. But  officiating promotions  are open  to all the officers, preference being given to those who have done more years of  actual survey  work, regardless of seniority. Even officiating posting  needs the  qualifying  service  of  two years and  three years, earlier referred to. In this regard, 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 discussion.  Rule 3  speaks of  the sources of recruitment or  appointment Direct  recruitment of qualified candidates, 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 27  

Mathematics or  the holder  of an  Engineering Degree (there are other  alternatives 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 connected 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. Rule 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 Survey 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 1056           (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 order of merit in which they      are   selected    for   such    appointment   on    the      recommendations of the Union Public Service Commission,      persons appointed  as a  result of an earlier selection      being senior  to those  appointed  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, 5A  and   11  and,   of  course,  their  corresponding  1970 provisions based  on Arts.  14 and 16 and the High 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 1960 Rules  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 the refixation of 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 27  

into a  common pool  within the  service of  the  Survey  of India. There are two sources or streams 1057 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  a 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  treatment. 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. Thereafter, 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 crystallizes 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 are, it does discharge duties secret, sensitive  and strategic  for  Defence  requirements which necessitate  the maintenance  of an  Army  Engineering component willy-nilly.      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 suffered  a metamorphosis  by 1950  when a  new set of rules of recruitment, composition and conditions of service, consistent with  the new vision, rainbow of responsibilities and switch over to civilian departmentalisation, was brought about. 1058      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 and the  like justifies  opening up  the Service to recruits and  promotees,  non-military  in  source.  Guided  by  this flexible realism and acting under the proviso to Art. 309 of the Constitution,  the President  of India has made Rules in 1950 to  regulate the  recruitment and conditions of service of the  army personnel  coming into the Survey of India. The anatomy of  the 1950 Rules is important. It reserves 50% for the military  Engineers by  way of  entitlement quota out of the total  number to  be recruited over a year as D.S.S. The other 50%  was to have been divided equally between civilian recruits from  the open  market and  the Class  II officers.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 27  

But, by an amendment of 1965, a modification was made to the effect that  the promotees  from Class  II would  enter  the Class I Service directly as S.S. and not as D.S.S. Thus, the total number  of vacancies each year at the D.S.S. level has to be  filled by recruitment in the proportion of 50 and 25. To illustrate  for clarity, if there are 75 DSS vacancies in a given  year, 50 of them are reserved for military nominees and the  remaining 25  are filled  up by  direct recruitment from the  civilians. The expression ’recruitment’ definitely means enlisting  anew into  a Service and so it may be taken that the  army engineering quota is 50 out of the 75 and the remaining 25 belong to the civilian recruits.      By way of contrast, the members of the Class II Service have a quota of 25% but that proportion is to be worked out, in terms  of the  extant rule,  not based  on the  number of vacancies at  the S.S.  level but  by a  calculation of  the total number  of posts  at the S.S. and higher levels in the Service. The  total number  of S.S.,  Deputy  Directors  and Directors will be added up and 25% thereof will be recruited by promotion  from Class II Service. The recruitment is only to the posts of Superintending Surveyors although the number to be  so promoted  is based  upon totalling  up the various posts at and above the S.S. level.      The total number of vacancies at the DSS level for each year shall be divided in the ratio of 2: 1 (50% for the Army Corps and 25% for direct recruits). The 50% reserved for the army  corps  shall  be  available  to  be  filled  by  those candidates. The  25% seats  to be  filled by direct recruits shall be filled only by such recruits. Even if enough direct recruits are  not available  they will  not be filled by the army nominees but shall be kept vacant to be carried forward and filled  in  later  years  by  such  direct  recruits.  A reasonable period for the carry 1059 forward scheme will be 3 years, not more. Likewise, military vacancies at the DSS level each year shall be filled only by such nominees.  If enough  such hands  are not  available, a similar procedure  of carry  forward will govern. For the SS posts 25%  belongs to  promotees from Class II officers. The total number  will be  worked out by adding all the posts of SS, Deputy  Directors and Directors and Surveyor General and allotting one-fourth  of  it  as  the  quota  for  Class  II promotees for  appointment as  SS. Such  is  the  reasonable interpretation of the rule.      Now we  come to  the bitter  bone of contention between the parties.  Why should  the 50%  of military  recruits  be given a special weightage ? Should not all entrants into the DSS be  treated alike  without being  afforded a handicap in the race?  We see no difficulty in upholding this weightage, once we  accept the reality that the military portion of the Survey is a compelling factor for national defence. We hold, on a  study of  the materials already adverted to, that sans they army  engineers the  Survey  of  India  will  become  a functional failure  in discharging  its paramount  duties in times of  war and in spells of peace, defence spreads beyond hot war  or cold war and sustains the sense of security by a state of  ever readiness.  There  is  enough  literature  to establish that  the work done by the army wing of the Survey is far too important to be played with and such work is best done by that wing.      The military  recruits, as  has been  already observed, are commissioned officers with 3 to 6 years of service. They have a  certain salary scale and period of service when they are baptised  into the Survey of India. Giving due weight to these factors,  Rule 5  lays down the criteria for seniority

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 27  

as between  the military sector of recruits and the civilian counter-parts. What  needs to be appreciated is that for the very efficiency  of the  Survey of India, a substantial army element  is   structurally  essential.  Army  engineers  are invited  into  this  Service  not  because  this  department historically belonged  to the  Defence Forces but because it cannot minister  to one  of  the  major  objectives  of  its creation  if  it  does  not  have  engineers  with  military training, aptitude,  courage, discipline and dare-devilry in hours  of   crisis.  The   necessity  of   the  Survey,  not opportunity to  the armymen,  has  determined  the  need  to attract and,  therefore, to  allot  a  quota  in  the  upper echelons, viz.,  Class I,  for military  engineers. This, in turn, has  desiderated the  offer of  reasonable  terms  and conditions for  army men  to join  the Survey  of India. The military engineers belong to the Corps of Engineer Officers. They are  commissioned officers with service of 3 to 6 years before  coming   into  the   Survey  which  needs,  not  raw engineers, but men 1060 with some  experience. They have prospects and scales of pay in the  Defence Department.  Why should  they  look  at  the Survey if  on entry  they are  to  lose  their  commissioned service and  begin the  rat race with civilian freshers? Why should they  suffer pay  cut by  walking into  the Survey of India? It  is, therefore,  fairly intelligible and basically equitable   to   allow   military   engineers   credit   for commissioned service and protection of already earned higher salaries.      The reasoning  is simple. The functional compulsions of the Survey  of India  require army engineers to be inducted, say half  its Class  I strength.  These engineering officers have to  possess some  years of  experience. How,  then, can they be  attracted into  the Survey  except by assuring them what they  were enjoying  in their  existing service,  viz., credit for the years under commission in reckoning seniority and fitment of their salary at a point in the scale of Class I officers  so that,  by way of personal pay or otherwise, a cut may  be obviated. This is not discrimination or favoured treatment but  justice to those whom, of necessity, you want and must,  therefore, pay  what they  were being paid in the Army and  give service  credit for  the years  on commission because you  need men  with specified  years of commissioned service. To  equate them  with unequal  civilian freshers is precisely the Procrustean exercise which is unconstitutional equality anathematised by Article 14.      Let us  eye the  issue from  the egalitarian  angle  of Articles 14  and 16.  It is  trite law  that equals shall be treated as equals and, in its application to public service, this simply  means that  once several  persons  have  become members of  one service  they stand  as equals  and  cannot, thereafter, be  invidiously differentiated  for purposes  of salary, seniority,  promotion or  otherwise,  based  on  the source of  recruitment or  other adventitious factor. Birth- marks of  public servants  are obliterated  on entry  into a common pool  and our  country does  not believe  in official casteism or blue blood as assuring preferential treatment in the future  career. The basic assumption for the application of this  principle is  that the various members or groups of recruits  have  fused  into  or  integrated  as  one  common service. Merely  because  the  sources  of  recruitment  are different,  there  cannot  be  apartheidisation  within  the common service.      The case  of the Army engineers is not that they should be given  ’ethnic’ preference  in official  life because  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 27  

military superiority. They merely plead that unequals should not be  forced into equality without regard to their rights. They are  unequal because their 3 to 6 years of commissioned service cannot  be wished away when brought into the service shoulder to  shoulder with  raw  recruits.  Secondly,  their salaries 1061 are higher  and that  should not  be forfeited as punishment for  entering  the  Survey  Service.  Not  that  the  salary difference must  be perpetuated  but that  at the  point  of entry into  service their  commissioned service and personal pay should  be protected.  The Service  Rules safeguard both these-a just  gesture without  which many army engineers may not care  to respond  and the  ’efficiency’  factor  of  the Survey Service will fail in their absence.      The  learned   Attorney  General   also   adopted   the precedentially sanctified  route of escape from the magnetic field of  Articles 14  and 16,  that if  the two  sources of entry never  really flowed  into a  homogenised  sangam  but remained the  Ganga and  the Jamuna, no question of equality arose.  A  common  pool  where  the  plurality  meets  is  a necessary postulate  for the  application  of  the  equalist mandate. Here  the army  engineers, it  is apparent from the rules, essentially  continue to  be army  men but  wear  pro tempore Survey  apparel, to  be doffed any time specified in the rules themselves. Resultantly, the military and civilian members remain immiscible layers save for some purposes. The condition of  integration of  men from the divergent sources being absent,  rulings have  held Art. 16 is out of the way. Once it  is agreed  or found  that at the entrance point the army engineers  are justly given credit for the commissioned service which  they carry  with them,  there is  no  further discrimination while  in service on the score that they come from the  Corps  of  Engineer  Officers.  All  that  happens thereafter is merely a manifestation of initial advantage of credit  for   commissioned  service.  For  this  reason,  we negative the case of discrimination.      The relevant  rulings not to burden but to brighten the points urged,  may be  referred to. In B. S. Gupta’s case(1) where Art. 16 was agitated in a battle between promotees and direct recruits,  one facet  of  Service  Jurisprudence  was illumined. We excerpt:           When considering  this point  it must  be  clearly      understood  that  this  Court  is  not  concerned  with      Govt.’s policy  in recruiting  officers to any service.      Government runs  the service and it is presumed that it      knows what  is best  in the public interest. Government      knows the calibre of candidates available and it is for      the Government to determine how a particular service is      to be manned-whether by direct recruits or by promotees      or both  and, if  by both,  what should  be  the  ratio      between the  two  sources  having  regard  to  the  age      factor, experience  and other  exigencies  of  service.      Commissions and Committees appointed by the Government 1062      may indeed  give useful advice but ultimately it is for      the Government to decide for itself.           In the  next place  we have  to remember  that  it      would be  wrong to  pronounce adversely  upon  the  new      seniority rule  merely because  of its  impact  on  the      fortunes of any particular individual officer. Nor will      it be  correct to  point that an individual officer ’A’      would have  fared better  if the  old  quota  rule  and      weightage rule had been restored.(1)      We have  to take  an overall  view to determine whether

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 27  

the rule now framed by the Government to determine seniority is just and fair.(2)      A total  conspectus does  not persuade us that anything grossly unfair has been perpetrated.      Absent fusion  into one  integrated service, Art. 16 is not attracted, in a proposition entrenched by precedents. In Shujat Ali’s case,(3) this Court pithily put it:           The two  categories of Supervisors were thus never      fused   into    one   class    and   no   question   of      unconstitutional discrimination  could arise  by reason      of differential treatment being given to them.           We have  read Shelat, J’s observations in Wadhwa’s case(4) to reinforce our view:           The principles  on which discrimination and breach      of Arts.  14 and  16 can be said to result have been by      now so  well settled  that we do not think it necessary      to repeat them here once again.           To sum up the position, the two services were from      as early as 1937 and before separate. At no stage, even      after  provincialisation   was  decided  upon  and  the      principles of  its implementation  were drawn  up there      was  any   integration  of  the  two.  In  fact,  after      considering the  alternatives which  the Government had      before it,  it opted,  on consideration of difficulties      of integration,  for the alternative of keeping the two      separate.(5) 1063           No principle  under Art. 14 or Art. 16 is involved      if such  an integration  was not  brought  about,  for,      considering the  past history  of the  two services and      the differences existing between them, Government could      not  be  required  to  fuse  them  into  one  upon  any      principle emanating from the two Articles.(1)      Going backwards  still further, we find Ayyangar, J. in Joginder  Singh(2)   emphatically   enunciating   the   same proposition:           If, as  we hold,  there was  no  integration  (and      integration has  no meaning  unless it is complete, for      there is  no such  thing as partial integration) either      expressly or  by necessary implication, it would follow      that it was not the impugned rules that created the two      distinct cadres  but that they existed independently of      the rules  and the  only  charge  that  could  be  laid      against the  rules in this respect was that they failed      to effect an integration.           If the government order of September 27, 1957, did      not integrate  them into  a single  service,  it  would      follow that  the two  remained as  they started  as two      distinct services.  If  they  were  distinct  services,      there was  no question  of inter  se seniority  between      members of  the two  services, nor  of  any  comparison      between the two in the matter of promotion for founding      an argument  based upon  Art. 14  or Art.  16(1).  They      started dissimilarly  and they  continued  dissimilarly      and any dissimilarity in their treatment would not be a      denial of  equal opportunity,  for it  is common ground      that within  each group  there is  no  denial  of  that      freedom guaranteed by the two articles.(3)           Likewise, in  Jaisinghani,(4) the  same  note  has      been struck.  To pursue  precedents beyond a point is a      tiring adventure which reaches a point of no return. It      is too  late to  upset settled law save where the point      of extravaganza  is reached.  Here such  a situation is      yet to come.           Again,  Sri  Govindan  Nair’s  submission  suffers

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 27  

    damage  from   the  following   observations  in  Ganga      Ram’s(5) case. 1064           The direct  recruits and  the promotees  like  the      petitioners  in   our   opinion,   clearly   constitute      different   classes    and   this   classification   is      sustainable on  intelligible differentia  which  has  a      reasonable connection  with the  object  of  efficiency      sought to be achieved.           The  distinction   between  direct   recruits  and      promotees  as   two  sources  of  recruitment  being  a      recognised difference,  nor obnoxious  to the  equality      clauses, the  provisions which  concern  us  cannot  be      struck down on the ratio of this decision.(1)      Let us  examine the  facts briefly  to see  whether the fundamentals of  constitutional equality are followed in the Service scheme. The army engineers remain in ’uniform’ as it were but  wear a Survey of India overcoat. They do not merge or fuse  into a  single integrated service with the civilian recruits but  remain as  an immiscible  layer of the Class I Service, the  other layer being the civilians. The two wings remain close  but separate,  not one  homogenised family, as the various rules eloquently proclaim.      The Army  engineers are  formally part of the Survey of India but  factually retain the vital pattern of life of the army  and   close  nexus   with  their  official  prospects, conditions and control as if they had continued in the Army. The 1950  Rules bring out the following incidents of service boldly. Notwithstanding their having left the Corps Engineer Officers Service  and  entering  the  Survey  Service,  they continue to  wear uniforms,  they get notional promotions in the Army  when they  earn corresponding  promotions  in  the Survey  of  India.  More  significantly,  they  secure  Army promotions only  if they  pass the  requisite army  tests ab extra. They  can be  recalled by the Army and, for a certain period, they  themselves may  opt back  to  the  army.  They continue to  be broadly  under the control of the Commander- in-Chief and  when inefficiency  is  noticed,  they  can  be called back  to the army for being dealt with appropriately. They have  to undergo  the regular  periodical drills in the army and their disciplinary control is not divested from the Army  Chiefs.   There  are  many  other  such  details,  the cumulative impact of which is that they have two masters, as it were;  they are  in two  Services, as  it were;  they are under two  parents-natural and  adopted. This  is  a  unique pattern where  the Army  members remain with one foot in the Army and  the other  in the Survey of India. A conspectus of the facts and circumstances governing the 1065 service convinces  us that  there is no total integration of the Army  personnel into  the Survey Service. They are in it and yet  out of  it. This  is what we may call a sui generis Service and  indubitably it  can be  asserted that they have not fully  fused into  a common  pool. Absent  such complete integration, Article 14 or 16 cannot be invoked.      The present  case plainly  falls in  the hands-off zone and so  the court  must leave  the injustice,  if any, to be corrected, if  needed, by  other processes.  Our exploration has  revealed  that  the  Survey  of  India  is  a  civilian department rendering  varied services to non-Defence spheres of the  Central Government  and to State Governments. So its composition  cannot   be  reasonably  confined  to  military personnel only.  But critical  Defence-oriented work is also done, not  only in  seasons of  national emergency  but also during  peace   spans.  The  border  line  between  national

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 27  

security by the Defence forces and developmental projects by civil services  is becoming obsolete. Defence is not only on the battle  front but  also in  the strategic  rear, in  the farms and  factories, in  efficient supplies  and  essential services, in  mapping second  lines of defence and routes of troop movements,  all of them having to be executed on a war footing. Wings  which can  be mobilised at instant’s notice, forces which  will build with blitz speed, have to be in the sheath to be drawn out like a sword on an alarm signal. More than all, as earlier elaborated, the tasks of the Survey for the Defence are in times of Emergency top priority items. So a sizeable section of men with army background, and military aptitude, with quick reflexes and familiar with Defence team work, must  be kept in reserve all the time. It follows that a good  proportion of  Army engineers  are a  ’must’ for the Survey. It  is enough  to have  25%  or  50%  from  military engineers a  matter of  fine-tuning of  policy for which the judiciary has  no genius  and the Administration has a reach of materials and range of expertise so that Courts must keep out, save  where irrational  criteria,  irrelevant  factors, mala fide motives or gross folly enter the verdict.      Have any such invalidatory infirmities been established by the  challengers here  ? If  the induction  of  the  army engineers has  a nexus  with the raison d’etre of the Survey of India,  the exact  dosage needed  to be  drawn from  that source  for   functional  adequacy  is  not  susceptible  of judicial measurement.  If gross  exaggeration is indulged in to boost  the military component or non-existent or illusory requirements are  invented for  the same purpose, taking for granted judicial  gullibility or  jurisdictional exile,  the Court will call the bluff. But here 50% of Class I services, from a  historical need-based  or other  approach, cannot be called irrational, impertinent or improvident. 1066      Likewise, the  award  of  the  length  of  commissioned services in  the Army  as service  in the  Survey  of  India cannot  be   dismissed  as   arbitrary  or  irrelevant.  The necessity to  attract such officers is a factor. The reality of their  engineering experience  on  commission  cannot  be wished away.  The value of such experience for the Survey of India with  Defence commitments  argues itself. Whether such services should  be given credit wholly or at all in the new Service is  more a  matter of  pragmatic wisdom  beyond  the bounds of  irrationality, arbitrary  fancy  or  departmental quasi-nepotism. It  is  difficult  to  dislodge  the  rules, fixing the  quota and  grafting of  service  while  on  Army Commission on  to the  Survey of  India service, as favoured treatment devoid  of rational  foundation. If  you need such army commissioned  engineers-and the  Survey for its success wants them-you  have to pay the fair price, not ransom. That is all there is to it.      Sri Govindan  Nair, with  assertive argument,  gave  us anxious moments  when he  pleaded for minimum justice to the civilian elements.  He said  that the impugned rules were so designed,  or  did  so  result  in  the  working,  that  all civilians, recruit  or promotee,  who  came  in  with  equal expectations  like   his  military  analogue,  would  be  so outwitted at all higher levels that promotions, even in long official careers  would be  hopes that  sour into  dupes and promises that  wither away  as teasing illusions. In effect, even if  not in  intent, if  a  rule  produces  indefensible disparities, whatever  the specious  reasons for  engrafting service weightage  for the army recruits, we may have had to diagnose the  malady of  such frustrating  inequality. After all,  civilian  entrants  are  not  expendable  commodities,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 27  

especially    when    considerable    civil    developmental undertakings sustain  the size  of the  service.  And  their contentment  through   promotional  avenues  is  a  relevant factor. The Survey of India is not a civil service ’sold’ to the military,  stampeded by  war  psychosis.  Nor  does  the philosophy of  Art.  14  or  Art.  16  contemplate  de  jure classification  and   de  facto   casteification  in  public services   based   on   some   meretricious   or   plausible differentiation. Constitutional  legalistics can never drown the fundamental  theses that,  as  the  thrust  of  Thomas’s case(1) and  the tail-piece  of Triloki Nath Khosa’s case(2) bring out, equality clauses in our constitutional ethic have an equalising  message and  egalitarian meaning which cannot be subverted  by discovering  classification between  groups and perpetuating  the inferior-superior  complex by  a  neo- doctrine. Judges  may interpret,  even make  viable, but not whittle down or undo the essence of the Article. 1067 This tendency,  in an  elitist society with a dischard caste mentality, is  a disservice  to our  founding faith, even if judicially sanctified. Subba Rao J. hit the nail on the head when he cautioned in Lachhman Das v. State of Punjab:(1)           The  doctrine   of  classification   is   only   a      subsidiary rule  evolved by  courts to give a practical      content to  the  said  doctrine.  Overemphasis  on  the      doctrine of  classification or an anxious and sustained      attempt to  discover some  basic for classification may      gradually and  imperceptibly deprive the article of its      glorious content.  That process would inevitably end in      substituting the  doctrine of  classification  for  the      doctrine of equality; the fundamental right to equality      before the law and the equal protection of the laws may      be replaced by the doctrine of classification.      The quintessence of the constitutional code of equality      is brought  out also  by Bose,  J. in  Bidi Supply  Co.      case(2)           The truth  is that it is impossible to be precise,      for we  are dealing  with intangibles  and  though  the      results are  clear it  is impossible to pin the thought      down to  any precise  analysis. Article 14 sets out, to      my mind,  an attitude  of mind,  a way  of life, rather      than a  precise rule  of law.  It  embodies  a  general      awareness in  the consciousness  of the people at large      of something  that exists  and which  is very  real but      which cannot  be pinned down to any precise analysis of      fact save  to say  in a  given case  that it falls this      side of the line or that, and because of that decisions      on the  same point  will vary  as conditions  vary, one      conclusion in  one part  of  the  country  and  another      somewhere else; one decision today and another tomorrow      when the basis of society has altered and the structure      of current  social thinking is different. It is not the      law that  alters but  the changing  conditions  of  the      times and article 14 narrows down to a question of fact      which must  be determined  by the highest Judges in the      land as each case arises.      The constitutional  goal is  to break down inequalities steadily between  man and  man, whether  based on  status or talent. Masses  of men  have suffered  so long  from  social suppressions and  environmental inhibitions  and to  deliver them out  of such  stratification and petrification came the message of  social justice,  blowing like  winds of  change, with an  accent on  distributive justice ensured by the rule of real equal 1068

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 27  

opportunity.  This  basic  mandate  of  equality  cannot  be subverted by  the  pragmatic  plea  of  classified  equality without robbing  Arts. 14 to 16 of their spiritual kernel in the process  of decoding.  Status to values must wither away in the  march to  the constitutional goals. Every Article of Part III  is an  article of  faith of  our nation and is the formal expression of a moral-spiritual mandate, not a string of words  whose meaning  of meanings  can be  played with by intellectual  exercises  favouring  the  Establishment.  The paramount law  is value-loaded.  Our freedom  is in peril if equality is by judicial reconstruction, a refined validation of inequality.  Princes shall be treated equally but pariahs will continue where they are-Why? because Art. 14 means only equality among  equals,  a  self-evident  statement  without solemn pronouncement.  Mr. Justice  Subba  Rao  in  Lachhman Das’s case(1)  warned against  this pernicious potential. We pollute our  cultural  stream  if  we  narrow  the  flow  of constitutional equality  to the  little  trickle  of  equals being made  equals.  The  dynamic  demand  of  levelling  up unequals to  the  level  of  the  higher  brackets  is  non- negotiable albeit gradual.      This caveat  is sounded  in the  last paragraph  of the majority judgment  in Triloki  Nath(2) and  is writ large in the whole of the concurring minority judgment. It binds.      But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is,  or  ought  to  be,  the  goal  of  all  good government and excellence and equality are not friendly bed- fellows. A pragmatic approach has therefore to be adopted in order to  harmonize the requirements of public services with the aspirations  of public  servants. But let us not evolve, through imperceptible extensions, a theory of classification which may  subvert, perhaps submerge, the precious guarantee of equality.  The eminent  spirit of  an  ideal  society  is equality and  so we  must not  be left to ask in wonderment. What after  all is  the operational  residue of equality and equal opportunity?      The point  Sri Govindan  Nair made from Triloki Nath(3) is, on  principle, well  taken but on facts, fallacious. The learned  Attorney   General,  in   the  last  instalment  of information furnished  in  the  course  of  his  reply,  did convince us  that no  such disaster  as was  painted did  or would befall unless we take a myopic view. 1069      If we  had been  satisfied that  the end-product of the provision  (Rule   5)  was   a  manipulation   of  continued seniority,  beyond   allowance  for   some  differences,   a perpetual suppression  of the  civilian wing and a back-door entry into  and occupancy  of all  higher positions  by  the military men,  it might have been a mockery of equality. But the story  is that some advantage is secured by the military recruits which  is intended and justified. Certainly, in the promotional scale this will be reflected. But no monopoly of all promotions  vests in  the commissioned recruits. It is a case of  fluctuating fortunes, inevitable in interlacing two sets of  people  coming  from  two  sources  with  different backgrounds and  assets.  As  expressed  earlier,  rigid  or relentless equalisation  of divergent  categories  who  have been  brought  into  one  Service  is  the  Procrustean  bed process, contrary to democratic social dynamics.      In the first few years, the army wing had 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 outnumber the army men  at the next two tiers. Maybe, the Surveyor General

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 27  

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 creation  of  class legislation.  We   do  not   strike   down   the   rule   as constitutionally 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 top 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 a ’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  of 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 stated, with a view to silence  the   grievance  of   the  respondents,   that  for promotions beyond  Superintending Surveyor, even officiating S.S. are 1070 considered. It  is not  right to contend, he said, that only on confirmation  they 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 of the civilian sails.      Likewise, it  is useful to clarify, in the light of the 1965 amendment  to the Rules providing for Class II officers being  promoted   straight  as   SS  (not   DSS),  that  the recruitment to  the DSS vacancies each year and to the 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 the Supreme Court. Creative thinking  is good,  if it  dawns in good time; for, according to  our processual  law, arguments  unborne on the record in  the High Court have no chance as a post-script in the Supreme  Court. For instance, he urged that commissioned officers governed  by the  Army Act could not be governed by any other Service Rules. So much so, the 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, the power being geared to the good of the 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 27  

thereof.      We  allow  the  appeals  but  intricate  constitutional questions when  decided by  this Court  to declare  the  law under Art.  141 should  be an  exception to the conventional rule  of   costs   following   the   event,   unless   other circumstances warrant. So no costs. P.B.R.                                      Appeals allowed. 1071