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PETITIONER: COL. D.D. JOSHI AND OTHERS

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT01/03/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ERADI, V. BALAKRISHNA (J)

CITATION:  1983 AIR  420            1983 SCR  (2) 448  1983 SCC  (2) 235        1983 SCALE  (1)226  CITATOR INFO :  R          1990 SC1086  (10)

ACT:      Ante-dating the commission-Meaning of- Army Instruction No. 78/78  dated 4th  November 1978  prescribing  an  upward revision in  the period  of benefit  by ante-dating  whether discriminatory and  violative of  Articles 14  and 16 of the Constitution-Army Instruction  No. 78178 clause (d) and Note appended thereto  scope  of  Interpretation  of  Statutes  - Necessary party - Joinder of.

HEADNOTE:      Under the Army Instruction No. 3115/48 dated August 16, 1948, applicable to the Army Medical Corps, the commissioned officers appointed to the service were held eligible for the benefit of ante-dating their commission at the time of entry into AMC  to the  extent as follows: (a) he held an approved whole time  appointment in a recognised civil hospital for a period of  six months  or more  an ante-date for six months; (b) he  had a  postgraduate Diploma  requiring 9  months  to qualify the  same, an antedate not exceeding six months; (c) he had  any post  graduate higher qualification, an antedate for a  period of  twelve months  and subject  to the maximum limit of 18 months; (d) if he is covered by (a+b+c) or (a+b) or (a+c)  or (b+c)  above. This was reduced to twelve months from 1-1-1966  but enlarged  to thirty months from 1-4-78 by the impugned  Army Instruction  No. 78178  dated November 4, 1978. By  the said  Instruction,  while  the  concession  at clause (a)  remained unchanged  ante-dating under clause (b) was revised  to 12  months if  the course  for Post Graduate Diploma involved  12 months  study and  under clause (c) the ante-dating  was   raised  to  24  months.  Under  the  Note appended, not  only the  provisions were  brought into force with effect  from 1-4-78  but the  seniority of officers who joined with  Postgraduate qualifications between 1.10.76 and 31-3-78 were  protected by  grant of  requisite ante-date so that they  do not  become junior  to officers  joining on or after 1-4-78.      The petitioners  who joined  AMC between  1954 and 1963 and  on   March  15,   1970  and   who  had   Post  Graduate qualifications in  different specialities  at  the  time  of obtaining  Commission,  being  aggrieved  by  the  amendment

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introduced by  Army Instruction  78/78, challenged  it under Article 32  complaining of  discriminatory treatment  in the matter of  granting ante-dating  benefit, which  is directly linked to seniority and promotion prospects, inasmuch as the choice of date, viz., 1-4-78 is arbitrary.      Dismissing the petitions, the Court, 449 ^      HELD: 1.  Reckoning seniority  in service from a deemed date of  commission in  respect of  the officers  with  P.G. qualifications or previous service in Civil hospital etc. as prescribed in  the Army  Instruction is styled as benefit of ante-dating. [455P-G]      2.1.  If   the  language   of  a  provision  is  clear, unambiguous and  ineligible,  and  does  not  admit  of  two meanings, the  court is  bound to  construe in  its ordinary sense because  it is  well  recognised  that  language  used speaks the mind and reveals the intention of the framers. If the language  of the statute is clear and unambiguous and if two interpretations  are not reasonably possible it would be wrong to  discard the  plain meaning  of the  words used  in order to  meet a possible injustice. In such a situation, it would be  impermissible to  call an  aid any external aid of construction to  find out  the hidden  meaning. The cardinal rule of  construction of  a statute  is that  it  should  be construed  according  to  the  intention  expressed  in  the statute itself. [457 D-E]      Commissioner  of  Income  Tax  Madras  v.  M/s.  T.  V. Sundaram Iyengar  (P) Ltd.  [1976] 1  S.C.C. 77  @ p. 84-85; Capper v. Beldwin [1965] 2 Q.B. 53 @ 61 referred to.      2.2. On  a plain grammatical construction of para 6 (a) (b) and  (c) of  Army Instruction  No. 74 of 76, it is clear that the  benefit of  ante-dating  the  commission  will  be available at the time of being commissioned as an officer of the Army  Medical Corps  i.e. at the time of appointment and the qualifications  must have been acquired prior to joining the AMC.  The expressions  "at the  time of appointment" and "higher  qualifications   obtained  prior   to  appointment" provided a terminus a quo for the eligibility of the benefit when the  benefit of ante-dating can be granted and claimed. [457 C-D]      2.3.  The   object,  the   purpose  and  the  intention underlying the  provisions was  to compensate  for the extra time, money  and energy  spent in  acquiring  post  graduate qualification equipped  with which the men enter service and this object,  purpose or  intention underlying the provision is clearly  manifest in  the language  used in  the relevant paragraphs of the Army Instruction bearing on the subject by providing that  eligibility for gaining the benefit of ante- dating  the  commission,  namely,  having  a  post  graduate qualification shall  be taken  into account  at the  time of entering  the   service.  Two   pre-conditions  have  to  be fulfilled before  the benefit  can be  acquired i.e. (1) the candidate must  have a  post-graduate qualification obtained prior to  appointment, and  (2) that such qualification must have been  acquired and  must be  available at  the time  of appointment.  Therefore,   not  only  the  language  of  the relevant provision  leaves no  room for doubt but the object and intention  underlying the  provision clearly  buttressed the meaning of the provision. [458 P-H, 459 A]      3.1. The  enlarged period of ante-dating the commission introduced from  April 1,1978  and made  admissible to  only those entering  on or  after 1-4-78  cannot be  said  to  be either violative  of Article  14 or  16 of the Constitution. [463 D-B]

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450      3.2. An  employer has  a right  to grant  incentive for attracting better  qualified persons  to the service offered by the  employer. If the incentive is devised with a view to offering inducement  to those  wavering whether  to enter  a certain service or not those who were already in service and had that  benefit once, cannot be heard to say that this new incentive should  be retrospectively  enforced so as to give them the  same benefit.  No incentive  can be retrospective, though conditions  of service  can be  retrospectively made. [460 P-H, 461 B]      3.3. The  Note appended to the amended Army Instruction No. 78!78  providing the benefit of enlarged period of ante- dating being  made available  to new entrants only will have no pernicious  tendency of  dividing a homogeneous class. In the matter  of incentive offered at the time of entering the service, there  is no  homogeneous class. The new comers may become members  of the  class after being commissioned. They are outside the cadre before entrance. They do Dot belong to the class  of existing  members of  the AMC. They derive the benefit of  ante-dating  simultaneously  with  becoming  the members of  AMC. They  do no  t get  any benefit  denied  to others after  becoming the members as benefit of ante dating is available  at the  time of  appointment only. Recruitment and Retirement  are a  continuous  process.  Those  who  are recruited at  the relevant  time will  have to  satisfy  the conditions for  recruitment  then  in  force  and  would  be entitled to  the benefits  that may  be available to the new entrants. [462 B-D, F-G]      3.4. In  Union of  India and  Anr. v  M/s. Parameswaran Match works  Etc. [1975]  2 SCR  573, the Supreme Court held that the  choice of  a date  as a  basis  of  classification cannot always  be dubbed  as arbitrary even if no particular reason is  forthcoming for  the choice unless it is shown to be capricious or whimsical in the Circumstances of the case. In the  present case,  the  object  underlying  the  benefit extended to  the new entrants determines the choice of date. Inducement for  attracting fresh  recruits from  tho  market must come  into force  by a  certain date.  The employer can legitimately determine keeping in view the demands of public service, from  which date  the inducement will be available. In such  a situation  choice of date is not wholly arbitrary and bas not the tendency to divide a homogenous class. There is no  differential treatment.  The district  possibility is that there  would be  vertical  splitting  of  a  homogenous class.                                              [462 H. 463A-D]      3.5. The benefit of ante-dating was devised long before the  recommendations   of  the  Third  Pay  Commission  were formulated and  each petitioner  got the  benefit consistent with the  Army Instruction  in force  at the  time of  being commissioned in  the AMC.  A subsequent  enlargement of  the period, not  pursuant  to  the  recommendation  of  the  Pay Commission and  held out  as an  inducement for recruitment, from the  market cannot  be claimed  as a matter of right by those who  have already  availed of  the benefit  of earlier occasion. [464 A-C]      Purshotam Lal  Dhingra and  Ors v.  Union of  India AIR 1973 SC. 1088. referred to.      3.6. The  contention that  limited  retrospectively  is given by  impugned Army  instruction, is  not correct. It is infact a  case of  marginal adjustment  showing fair play in action. [465 E-F] 451      4. Impleading  of proper  and necessary  parties to  an

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adjudication will arise only in cases of individual claim or claim of  seniority by  one person against specified others, but a  question of  interpretation could be given because it would be  binding on  the Union  of India,  the presence  of others is  unnecessary. Union  of India would have merely to give effect to the decision of the Supreme Court. Therefore, the  absence  of  those  who  may  by  the  Supreme  Courts’ interpretation o  a provision  be adversely  affected in the facts and  circumstances of the case need not be necessarily here, and  if the  relief could  have been  granted the same would not have been denied on the ground that proper parties were not before the Court. [465 G-H, 466 A-B]

JUDGMENT:      ORIGINAL JURISDICTION  : Writ Petitions Nos. 3685-91 of 1982 and 5636 of 1980.      (Under article 32 of the Constitution of India).      MR.  Ramamurthi   and  Mrs.   Indra  Sawhney   for  the Petitioners.      N.C. Talukdar  and V.B.  Sahariya and Miss A. Subhashni for the Respondents.      The Judgment of the Court was delivered by      DESAI,  J.   Commissioned  officer  belonging  to  Army Medical  Corps  (’AMC’  for  short),  having  post  graduate qualifications in  different specialities  at  the  time  of obtaining  commission   have  approached  this  Court  under Article 32  complaining of a discriminatory treatment in the matter of  granting antedating  benefit  which  is  directly linked to seniority and promotional prospects.      Petitioners  in  the  first  batch  of  petitions  were granted commission  in AMC between 1954 and 1963. Petitioner in the second petition was commissioned as a regular officer in AMC  on March 15, 1970. There are in all 154 commissioned officers including  the petitioners belonging to AMC who are similarly situated  and who  according  to  the  petitioners suffered the  same discriminatory  treatment The petition is not in  a representative  capacity. Petitioners  assert that the decision in this group of petitions would affect roughly 147 other officers.      Petitioners  held   post  graduate   qualifications  in different branches  of medical science and some of them held an approved  wholetime appointment  in  a  recognised  civil hospital for  a period  of six months or more prior to being commissioned in AMC. 452      There is  a provision  for giving  the benefit of ante- dating  the   commission  for   varying  periods,   if   the commissioned officer at the time of entry fulfils prescribed qualification. The  earliest available  reference is to Army Instruction No. 31/S/48 dated August 16, 1948 which provided as under:      "(a) An  officer who  has held  an  approved  wholetime           appointment in  a recognised  civil hospital for a           period of  six months or mole will be eligible for           an ante date of six months.       (b)  A candidate  will be eligible for the grant of an           ante-date not  exceeding six  months if he, at the           time of  selection, is  in possession  of  a  post           graduate Diploma  in any branch of medical science           recognised by the Indian Medical Council, provided           that the  candidate has  to  attend  a  course  of           Instruction in  a recognised  institution  for  at           least 9 months to qualify for such Diploma

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     (c)  At the  time of  appointment a  candidate will be           eligible  for   the  grant  of  an  ante-date  not           exceeding  12   months  in   respect   of   higher           qualifications obtained prior to appointment. This           will normally  be granted  for qualifications such           as Doctor  of Medicine,  Master of Surgery. Fellow           of the  Royal College  of Surgeons,  Member of the           Royal  College  of  Physicians  or  an  equivalent           qualification   obtained   by   examination   from           recognised Universities or colleges.        (d) In the case of a candidate who is eligible for an           antedate under more than one of the preceding sub-           para graphs,  the maximum period of ante-date will           be limited to eighteen months."      It appears  that prior  to December  31st, 1965 maximum period of  ante-dating benefit  was 1.  1/2 years  which was reduced to one year from January 1, 1966. It was enlarged to maximum 2-112  years from  April 1,  1978. Thus  the  period varied but  the conditions  for eligibility remained-more or less constant. 453      By Army  Instruction No.74 of 1976, the period of ante- dating under  clauses (a),  (b) & (c) remained unchanged but the period  under clause  (d) was raised to 18 months in the aggregate.      By the  impugned Army  Instruction No.  78 of  78 dated November, 4,  1978, a  further upward revision in the period of ante-dating  the commission  by amending Army Instruction No. 74  of 76  was prescribed. By this amendment, the period prescribed in  clause  (a)  above  remained  unchanged.  The period of  ante-dating prescribed  in clause (b) was revised from 6 months to 12 months and the period of instruction was revised from  9 months  to 12  months. In  clause  (c),  the period of  12 months  was revised  to 2  years and in clause (d), the  aggregate was  upward revised from 12 months to 2- 112. years.  A note  was appended  to this  amendment  which according to  the petitioners introduces the discrimination. It reads as under:           "The above provisions are effective w.e.f. 1.4.78.      However, the  seniority of officers who joined with PG.      qualifications during  1 to 1-1/2 years prior to 1.4.78      will be  protected by  grant of  requisite ante-date so      that they  do not  become junior  to officers  who have      joined later with equivalent PG qualifications."      Petitioners contend  that  denial  of  the  benefit  of longer period  of ante-dating  the commission  introduced by the amended  Army Instruction  No. 78  of  78  which  became effective from  April 1, 1978 to those commissioned officers who had  requisite post  graduate qualifications  when  they were  commissioned  prior  to  April  1,  1978,  is  grossly discriminatory and  the choice  of date  is arbitrary  It is alleged  that   those  officers   who  had   post   graduate qualification at  the time  of  being  commissioned  in  AMC whether they were commissioned prior to 1.4.78 or thereafter for the  purpose of conditions of service and treatment from one homogenous  class and  by the  arbitray choice  of date, this  homogenous   class  is  divided  to  pick  and  choose arbitrarily for  the benefit of longer period of ante-dating the commission  and the  classification is  not based on any intelligible differentia  and if  there be  any, it does not have  any  rational  nexus  to  the  objects  sought  to  be achieved. It  is further alleged that the choice of date for granting the  benefit being  thoroughly arbitrary and is not explainable on  ally rational  hypothesis and  therefore, on these grounds.  the denial  of benefit of extended period of

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ante- 454 dating to  those who  were commissioned  prior to  1.4.78 is discriminatory  and  it  is  a  denial  of  an  equality  of opportunity  in   the  matter   of  employment  and  thereby violative of  Art. 16 of the Constitution It is alleged that in the  matter of  ante-dating the  commission, there  is no difference between those who had post graduate qualification when  commissioned  prior  to  1.4.78  and  those  who  were commissioned subsequent  to that  date  and  therefore,  the earlier entrants  have been  treated with  an evil  eye  and unequal hand  and therefore  this treatment  is violative of the guarantee of equality in the matter of employment. Petit ioners have  averred in  the petition  that the  benefit  of antedating the  commission to  those who  were  commissioned after obtaining  post graduate qualification irrespective of whether they  have commissioned  prior to  a certain date or subsequent to  that date,  in the  matter of  conditions  of service, cannot differently treated and they are entitled to same  treatment  irrespective  of  the  date  on  which  the commission was granted.      In the  return filed  on behalf  of the respondents, it was specifically  contended that  the benefit of ante-dating is granted  at the the time of being commissioned in AMC and it is  an incentive  for attracting  persons who applied for being   commissioned    after   obtaining    post   graduate qualification. It  is further  averred that  if even the old commissioned officers  are given benefit of larger period of ante-dating, it  would adversely  affect a  large number  of officers of  the AMC  and would  disturb  the  seniority  of number of  persons. It  was further  alleged that promotions are given  on the  basis of  seniority. It  was averred that those commissioned  officers of AMC who have either acquired the post  graduate qualification while in the service or who were merely  M.B.B.S. at  the time of being commissioned and those who  had post graduate qualification when commissioned are all  brought on a common seniority list and on the basis of this  common seniority list, promotion to the higher rank is given.  It was  therefore, contended  that if the earlier entrants are  now given  benefit of  longer period  of ante- dating, it  would  disturb  the  seniority  and  promotional prospects of  a large  number of  persons and this is unjust and unfair.  Number of  charts  have  been  annexed  to  the written submissions  by  the  learned  Additional  Solicitor General showing that giving of benefit of longer period of 455 ante-dating the  commission to  the  petitioners  and  those similarly situated  would give them an underserved advantage of  jumping  over  a  number  of  senior  officers  and  the promotional prospect of many such persons would be adversely affected. The  note at  the foot of the Army Instruction No. 78 of  78 was explained by saying that since by the impugned Army Instruction  the  maximum  period  of  ante-dating  the commission is  revised to  2-1/2 years,  if those just above the  marginal  line  meaning  those  who  were  commissioned shortly  prior   to  1.4.78,  if  not  protected,  would  be adversely affected by those entering just after the date and would score a march over the earlier entrants and to protect them, it  was provided  that the  seniority of  officers who joined with  PG. qualification during the 1/2 years prior to 1.4.78, will  be protected by grant of requisite antedate so that they  do not  become junior to officers who have joined later with  equivalent P.G. qualifications. It was said that there is  rationale behind  the note  and it is incorrect to say that  limited  retrospective  effect  is  given  to  the

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impugned Army Instruction No. 78 of 78.      At the  outset, it  is necessary to clear the ground by understanding what  constitutes ante-dating  the commission. It appears  that the  basic minimum  entry qualification for being commissioned in AMC is graduate degree such as M.B.B.S Those who  enter service  with post  graduate  qualification such as  post graduate  diploma or  post graduate  degree or those who  eater after  having held  an approved  whole time appointment in  a recognised  civil hospital for a period of not less  than 6  months will  be given  a  deemed  date  of commission prior  to the actual date of commission depending upon  the   period  for   which  under   the  relevant  Army Instruction such  person is  qualified. In other words, such person would  be deemed  to have been commissioned at a date earlier than the date on which he is actually com missioned. This deemed date would be the date on which person concerned is deemed  to have been commissioned and his seniority would be reckoned from such deemed date. This is what is styled in the relevant Army Instruction as benefit of antedating.      The commissioned  officers in  the AMC  fall into three recognised divisions: (1) those who enter with post graduate qualification,  (2)   those  who   acquire   post   graduate qualification after  being commissioned,  and (3)  those who enter as M.B.B.S. and never acquire 456 any further  post graduate qualification. It is not disputed that all  the three  are borne  on the common seniority list because they  formed one  class of  commissioned officers in AMC. Further  upward promotion  is generally  based on  this common seniority list.      The benefit  of ante-dating is given to those who enter AMC with  post graduate  qualification and  the  benefit  of ante-dating the  commission is  given at  the time  of being commissioned  and  not  later  on.  The  learned  Additional Solicitor  General   pointed  out   that  this   benefit  of antedating commissions  is in vogue from 1948 but the period has varied  according to  the decision  of the Government of India to  provide incentive  for entering AMC depending upon market conditions  of recruitment.  It appears that prior to December 1,  1965, maximum ante-dating admissible on account of post  graduate qualification  and for whole time hospital appointment was  1-1/2 years.  From January  1, 1966, it was reduced  to   one  year.   Government  of  India  was  again approached  for   enlarging  the   period   of   ante-dating admissible on  account of  the post  graduate qualification. Accepting the  proposal, the  maximum period for ante-dating the commission  was revised  from one  year to  2 years with effect from  April 1,  1978 with  the marginal adjustment to avoid any  undeserved  benefit  being  given  to  the  later entrants over  earlier entrants to be adjusted as set out in the note  appended to  the impugned Army Instruction. It was however, strenuously  urged that this benefit of ante-dating was admissible  at the time of appointment because it was an incentive and  not a  benefit being  conferred for all those who have  already entered  AMC. This submission is borne out by the language of the relevant Army Instruction.      Let us  turn to  the Army  Instruction dated August 16, 1948. Para  (b) which  is relevant  for the  present purpose provided that ’A candidate will be eligible for the grant of ar. ante-date  not exceeding  6 months if he, at the time of selection is  in possession of a post graduate Diploma etc.’ The words  ’at the  time of  selection’ clearly connotes the stage when  benefit is  admissible and  reveals  the  object underlying the  benefit of  ante-dating. Similarly para 6(b) of Ar  r y Instruction No. 74 of 76 dated September 18, 1976

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clearly provides  that ’a candidate will be eligible for the grant of  an ante-date not exceeding 12 months if he, at the time of  appointment is  in possession  of a  post  graduate diploma in any 457 branch ..........’ Again attention should be focussed on the expression ’at  the time  of appointment’.  By the  impugned amendment by Army Instruction No. 78 of 78 dated November 4, 1978 what  is revised  is the  period, in para 6(b) and 6(e) raising it  to 12  months and 2 years respectively retaining the condition  of  eligibility,  namely,  ’at  the  time  of appointment’. In  this connection,  one  can  advantageously refer to  para 6(c)  of Army  Instruction No. 74 of 76 which provided that  ’at the time of appointment, a candidate will be eligible  for grant  of ante-date  not exceeding  2 years (now revised)  in respect  of higher qualifications obtained prior to  appointment’. The  expressions  ’at  the  time  of appointment’ and  ’higher qualifications  obtained prior  to appointment’ provided  a terminus  a quo for the eligibility of the benefit when the benefit of antedating can be granted and claimed.  On a  plain grammatical  construction of  para 6(a), (b) and (c) of Army instruction No. 74 of 76, there is no room  for doubt  that  the  benefit  of  ante-dating  the commission will  be available  at  the  the  lime  of  being commissioned as  an officer  in AMC,  i.e. at  the  time  of appointment and  the qualification  must have  been acquired prior to  joining AMC.  If the  language of  a provision  is clear, unambiguous  and intelligible,  and does not admit of two meanings,  the Court  is bound  to construe  it  in  its ordinary sense  because it  is well recognised that language used speaks  the mind  and  reveals  the  intention  of  the framers. If  the  language  of  the  statute  is  clear  and unambiguous, and  if two interpretations are not reasonabily possible, it  would be wrong to discard the plain meaning of the words  used in  order to meet a possible injustice. (See The C.I.T., Madras v. M/s. T.V. Sundram Iyengar (P) Ltd.(1). In such  a situation,  it would  be impermissible to call in aid any  external aid of construction to find out the hidden meaning. The  cardinal rule for construction of a statute is that it  should be  construed  according  to  the  intention expressed in  statute itself  (see Capper v. Bledwin).(2) It would be presently pointed out that the underlying intention object and  purpose for  granting the  benefit of antedating clearly  bears   out  the   meaning   deduced   by   literal construction.      It is  therefore necessary  to go  into the  genesis of extending this  benefit of ante-dating the commission. It is well known those who 458 pursue study  for higher  qualification  in  any  branch  of medicine after  acquiring the  graduate degree had to put in formerly two  years and  now nearly three years in acquiring post graduate  qualification. If  the employer  meaning  the Union Government would get the benefit of person who has put in 2  to 3  years of  advanced learning and training and is, therefore better  equipped, he or she must be compensated in some measure.  There would  be qualitative difference in the service rendered  by a  graduate entrant and an entrant with post graduate  qualification. The  time,  money  and  energy expended in  acquiring higher  qualification is sought to be compensated by  grant of  ante-dating benefit, therefore the benefit of  ante-dating was  devised and  has been in vogue. Obviously, this  benefit is  to be  given  at  the  time  of entering service.  The recognition  for the  time, money and energy spent  by an entrant with postgraduate qualification,

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compared to  a graduate  who  enters  AMC  because  of  this minimum eligibility  qualification is  implicit in  devising this benefit  of ante-dating  the commission.  If the  Union Government were  to treat one who has the graduate degree on par with one who has a post graduate degree both are brought on  the   common  seniority   list  for  further  promotion, obviously the  person who  spent sometime  in acquiring post graduate  qualification,  the  benefit  of  which  would  be available  to  the  employer,  would  be  at  a  comparative disadvantage in the matter of seniority and future promotion compared to  one who  came with only graduate qualification. It is this difference between a graduate entrant and entrant with post  graduate qualification  which was  sought  to  be compensated by  granting  the  benefit  of  ante-dating  the commission.  The  object,  the  purpose  and  the  intention underlying the  provision was  to compensate  for the  extra time, money  and energy  spent in  acquiring  post  graduate qualification equipped  with which the men enter service and this object,  purpose or  intention underlying the provision is clearly  manifest in  the language  used in  the relevant paragraphs of the Army Instruction bearing on the subject by providing that  eligibility for gaining the benefit of ante- dating  the  commission,  namely,  having  a  post  graduate qualification shall  be taken  into account J at the time of entering  the   service.  Two   pre-conditions  have  to  be fulfilled before  the benefit  can be  acquired i.e. (1) the candidate must  have a  postgraduate qualification  obtained prior to  appointment, and  (2) that such qualification must have been  acquired and  must be  available at  the time  of appointment.  Therefore,   not  only  the  language  of  the relevant provision leaves no room for doubt but the 459 Object  and   intention  underlying  the  provision  clearly buttessed the meaning of the provision.      If the  benefit of ante-dating the commission is not to be granted  at the  time of  enacting the  AMC to  those who enter with post graduate qualification, how would their case be differentiated  or distinguished  from those  who acquire post graduate  qualification while  in service.  There is no qualitative difference  in the  relative merit  of a  person entering service having acquired post graduate qualification and one who acquires the same after entering the service, of course, since  after acquiring  the qualification.  Yet  the benefit of  ante-dating is given to those who enter AMC with post graduate  qualification, and  not to  those who acquire such qualification  after  being  commissioned.  It  may  be recalled  that   at  present   out  of  approximately  4,400 commissioned  officers   of  AMC,   there  are   about   154 commissioned officers  who were  commissioned  after  having acquired post-graduate  qualification. As against this there are about  1227 officers  of  the  AMC  who  acquired  post- graduate qualification  while in  service.  The  quality  of service rendered  by  both  having  identical  qualification would not  be materially  different, and  yet in the case of first, the benefit of ante-dating the commission is extended by the  relevant Army  Instruction  while  in  the  case  of latter, no  such benefit  is given. This clearly establishes that the  benefit of antedating the commission is to b? made available only  to those  who  had  acquired  post  graduate qualification before  being commissioned  into the  AMC. The recepient  of   the  benefit  gets  seniority  over  earlier entrants and  the seniority is determined, in the absence of another rule from the date of entry in the service or cadre. The seniority  so acquired  will enable  such persons  to be considered for  promotion earlier  than those over whom they

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score a  march by  ante-dating the  commission. It  is  thus abundantly  clear   that  the  benefit  of  ante-dating  the commission is  available only  at the  time of  entering the AMC. A  subsequent enlargement  of  the  benefit  cannot  be retrospectively made  available to  those  who  had  already entered service  and once  availed of  the  benefit  because their case thereafter would. not be different from those who acquired    post-graduate    qualification    after    being commissioned as members of AMC.      It  was   strenuously  contended   on  behalf   of  the petitioners  that  all  commissioned  officers  of  AMC  who entered AMC  after  acquiring  post  graduate  qualification formed one homogeneous class and by 460 artificially  selecting  the  date  of  April  1,  1978  for entitlement of  enlarged period  of ante-dating  compared to those who  had entered prior to that date has the pernicious tendency  of   dividing  a   homogeneous  class   into   two compartments. It  was urged  that this classification is not based on any intelligible differentia and it has no rational nexus to  the objects sought to be achieved by enlarging the period of  entitlement. It was therefore, contended that the note at  the foot  of the amended Army Instruction No. 78178 which introduces  discriminatory treatment  in the matter of longer period  of ante-dating  the commission by denying the same to  those who  entered prior to that date and extending it only  to those  who entered  subsequent to  that date, is violative of  the guarantee of equality enshrined in Article 14 and  is a denial of equality of opportunity in the matter of employment  as guaranteed under Article 16 all therefore, being unconstitutional  deserves to  be struck  down. A good number of decisions of this Court were read to us. The deci- sions on  the scope and content of Article 14 are legion and to recall  and of  them would  be merely  an ’idle parade of familiar learning’. It is  well-settled and not controverted on behalf  of the  respondents that Article 14 forbids class legislation but  does  not  forbid  classification  for  the purpose of  legislation. It  is equally well settled that in order  to   meet  the   least  of   Article  14,   (i)   the classification must  be based  on  intelligible  differentia which distinguishes  persons  or  things  that  are  grouped together from those that are left out of the group; and (ii) the differentia  must have  a rational  nexus to the objects sought to be achieved by the legislative or executive action under challenge.      Does the  enlarged period of ante-dating the commission made admissible  to those who enter AMC after a certain date denying the  same benefit  to those  who had already entered AMC prior  to that  date, has  the  pernicious  tendency  to divide a  homogenous class  based on arbitrary criterion and not relatable  to any  intelligible differentia  one has  to remember that an employer has a right to grant incentive for attracting better  qualified persons  to the service offered by the  employer. If the incentive is devised with a view to offering inducement  to those  wavering whether  to enter  a certain service or, not, it is difficult to accept that such incentive should  also be extended to those who have already entered service and have already taken full advantage of the benefit available  at the  time of entering service. In this case, it  is clearly.  made out that the benefit of enlarged period 461 of ante-dating  the commission for persons joining AMC after having acquired  post-graduate qualification was given as an incentive with  a view  to attracting  more persons who have

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already acquired  postgraduate qualification. Those who were already in  service and  had that  benefit once,  cannot  be heard  to   say  that   this   new   incentive   should   be retrospectively  enforced  so  as  to  give  them  the  same benefit. It  is difficult  to conceive that an incentive can be retrospective  though it  is indisputable that conditions of service  can be restrospectively made. And the unfairness of the approach of the petitioners becomes manifest from the fact that  while  maximum  period  of  antedating  prior  to December 31,  1965 was  1-1/2 years when petitioners entered AMC, which was reduced to one year effective from January 1, 1965,  none  of  them  ever  suggested  that  this  being  a condition of service must uniformly apply to those who would be covered  by the  conditions of eligibility and thereafter the period must be reduced. But subsequently when the period of ante-dating was enlarged by the impugned Army Instruction which became  effective  from  April  1,  1978,  it  is  now clamoured that  this benefit  must be  extended to those who have entered  AMC way back as early as November. 1949 and in the process  give the  petitioners  and  similarly  situated persons a march over those who are already senior to them in the common seniority list.      The degree  of unfairness  of the  claim of petitioners can be  demonstrably established by working out the position of some  petitioners on  the footing that each one . Of them is entitled  to longer period of ante-dating the commission. Ist petitioner  Col. D.D.  Joshi was  commissioned  on  July 25,1954 and  after obtaining the benefit of ante-dating then available, he  was put  in the  seniority list  as if he had been commissioned  on January  25, 1953.  Now if he is given the benefit  of ante-dating  the commission  by 2-1/2 years, his deemed  date of  joining the  AMC would  be January  25, 1952. Ia  the process,  he would  scope a  march over 21 con missioned officers  who are  already senior  to him  in  the seniority  list.   This  is   equally  true  of  all  the  7 petitioners but  in the  case of  petitioner No. 3-Col. V.S. Sharma, he would score a march over 41 commissioned officers already senior  to him.  One M.B.L. Sexena who is not one of the petitioners  but who  is similarly situated, if now held entitled to  benefit of  22 years ante-dating, he would jump over SO  commissioned officers senior to him. In the case of petitioner No.  7. he  would supersede  65 officers  already senior to him and a good number of them are 462 persons who  had acquired  post graduate  qualification,  of course, after  joining the  service. Could one ever think of an incentive  giving such  an  undeserved  advantage  ?  The answer is obviously in the negative.      The next  question is  does  this  incentive  divide  a homogeneous class  ? In  the matter  of incentive offered at the time  of entering the service, there is no question of a homogeneous class.  The new comers may become members of the class after  being commissioned.  They are outside the cadre before entrance. They do not belong to the class of existing members of  the AMC.  They derive the benefit of ante-dating simultaneously with  becoming a  member of  AMC. They do not get any  benefit denied to others after becoming the members as benefit  of ante-dating  is  available  at  the  time  of appointment. There may be an enlargement of the cadre. There would be  retirements.  Recruitment  and  retirement  are  a continuous process.  Those who are recruited at the relevant time will  have to  satisfy the  conditions for  recruitment then in  force and  would be entitled to the n benefits that may be  available to  the new  entrants.  If  the  principle canvassed for  on behalf  of the petitioners is taken to the

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logical end,  it would lead to a startling result. Suppose a rule is  now made  that  only  persons  with  post  graduate qualification would  be qualified  for being commissioned in AMC, can  anyone contend  that as in the past mere graduates were recruited  and therefore,  ignoring the revised minimum eligibility qualification, a graduate must be considered for recruitment. Therefore,  in respect  of benefits  which  are available for  certain qualification at the time of entering the service, the same having been made available, a revision of the same at a later date to attract fresh entrants cannot be retrospectively  claimed by those who had already entered service knowing full well the benefit then available.      Therefore, there is no substance in the contention note appended to  the, amended  Army Instruction No. 78/78 pr the benefit  of   enlarged  period  of  ante-dating  being  made available to  new entrants  only will  have  the  pernicious tendency of div homogeneous class.      It was  then contended  that the  selection of the date April 1,  1978 is  thoroughly arbitrary  and has no national nexus to  the objects  sought to  be achieved.  Reliance was placed on  Union of  India &  Anr. v  M/s Parameswaran Match Works etc.(1) In that case this Court 463 quoted with  approval the  decision in Louisviile Gas Co. v. Alabama Power  Co., (1)  wherein it  was observed  that  the choice of a date as a basis for classification cannot always be dubbed  as arbitrary  even if  no  particular  reason  is forthcoming  for  the  choice  unless  it  is  shown  to  be capricious or whimsical in the circumstances of the case. In the present  case, there  is no  division of  a  homogeneous class by  the choice  of the date. The object underlying the benefit extended  to the  new entrants determines the choice of date.  Inducement for  attracting fresh recruits from the market must  come into force by a certain date. The employer can legitimately  determine, keeping  in view the demands of public  service,  from  which  date  the  document  will  be available. In  such a situation choice of date is not wholly arbitrary and  has not  the tendency to devide a homogeneous class. We  see no classification amongst those who enter AMC after acquiring  Postgraduate  qualification  determined  by length of  ante-dating  benefit  because  each  one  at  the relevant time  obtained the  advantage of  ante-dating as it was then in force. There is no differential treatment. There is  no   division  of  a  homogeneous  class.  The  distinct possibility is  that if  petitioner’s contention is accepted there would be vertical splitting of a homogeneous class. It is therefore,  difficult to  accept the  contention that the note  under   the  impugned   amended  Army  Instruction  is violative of Art. 14 or Art. 16.      It was  next contended  that the  Third Pay  Commission recommended that  doctors entering  service of  the Union of India with  post-graduate qualifications  should be suitably recompensated  for   the  time   spent  in  acquiring  these qualifications. It  was urged  that this  recommendation was implemented in  Central Government  Health Service and it is this recomtnendation  which has  promoted the Union of India to enlarge  the period  of ante-dating. It was urged that by limiting the benefit only to those who would be commissioned on or  after April  1, 1971,  the respondents  are guilty of according discriminatory  treatment in  the matter of public employment, and  it  is  violative  of  Article  16  of  the Constitution. Reliance  was  placed  on  Purshotam  Lal  and others v. Union of India & Anr (2)., wherein this Court held that when  a Pay  Commission snakes  recommendations and the Government accepts  the same,  it is  hound to implement the

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recommendations in  respect of all Government employees. And if it does not implement the report regarding some employees only it 464 commits a  breach of  Arts. 14 and 16 of the Constitution It is difficult  to appreciate how this decision would help the petitioners. The  benefit of  ante-dating was  devised  long before the  recommendations of the Third Pay Commission were formulated and  each petitioner  got the  benefit consistent with the  Army Instruction  in force  at the  time of  being commissioned in  the AMC  A subsequent  . enlargement of the period, not  pursuant  to  the  recommendation  of  the  Pay Commission and  held out  as an  inducement for  recruitment from the  market cannot  be claimed  as a matter of right by those who  have already  availed of  the benefit  on earlier occasion.      It was  then contended that if extending the benefit of enlarged period  of ante-dating  to all  irrespective of the date of  entry would  have the  tendency  of  unsetting  the seniority list,  that  should  not  weigh  with  this  Court because on  such nebulous ground violation of constitutional mandate cannot be overlooked. Reliance was placed on General Manager, South Central, Railway, Secundrabad and Anr. etc. v A.V.R. Siddhanti  & Ors.  (1). We again fail to see how this decision helps  the petitioners.  The fallacy underlying the submission is  that this benefit of enlarged period of ante- dating is  claimed as  a condition  of  service  uniformally applicable to  all persons  qualifying for the same ignoring the conditions under which it can be claimed. The contention overlooks the  basic condition  subject to which benefit can be claimed  and it  is that  it is  available at the time of entering the  ser vice as a compensation for having a higher qualification  compared  to  their  simultaneously  entering service  with   lower  qualification.   And  undoubtedly  an inducement held out to future entrants, if extended to those who had  entered more  than 25  years ago, the inducement so offered would adversely affect a large number of persons who need not  be subjected to unfair treatment for no fault . Of theirs. There  are hundreds  of officers,  in all- 1227, who are holding  post  graduate  qualifications  today,  may  be having acquired  the same  after joining  service but  there being no  qualitative difference  in the service rendered by them and  those who  entered with PG qualification, way-back in 1948  or 1949 or 1953, if the contention is accepted. the petitioners would  score a  march over others having now the same qualification thereby giving the petitioners an unfair 465 advantage which  ought not  to be  given, if approaching the matter  A   from  that   angle,  would   not   violate   any constitutional mandate.      The next  contention is  that if giving the petitioners benefit of  enlarged period  of ante-dating would unsettle a settled seniority  list, the  respondents have already given limited retrospectivity  to the revised benefit by providing in the  note to  the impugned  Army Instruction  78/78 that: "The seniority  officers who  joined with  PG qualifications during 1-112  years prior  to 1.4.78  will be  protected  by grant of  requisite ante-date  so that  they do  not  become junior to  officers who have joined later with equivalent PG qualifications." It was urged that the provision in the note would  benefit   some  of   those   who   joined   with   PG qualifications even prior to April l, 1978 in a limited way, and thus  its retrospective  operation is  implicit  in  the note. There  is no  merit in  this contention.  In fact  the provision demonstrably  establishes fair  play in action. An

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illustration  would   expose  the   fallacy  underlying  the submission. ’A’  joined with PG qualification and six months full time  service on  31st March, 1978, ’B’ joined with the same qualification  and eligibility on April 2nd, 1978. Both are wholly  similarly  situated.  ’A’  would  get  ante-date benefit of  1-1/2 years  and ’B’  would qualify  for  2  1/2 years. ’B’  though a  later entrant with same qualifications would score  a march  over  ’A’.  This  would  be  extremely unfair. To protect such cases, it is provided that those who joined with  PG qualifications  during 1-1/2  years prior to April 1, 1978 will be protected by giving of requisite ante- date to  protect their  seniority over  later  entrants  who qualified for  larger period  of ante-dating.  It is idle to contend that  limited retrospectivity  is given  to impugned Army  Instruction.   It  is  in  fact  a  case  of  marginal adjustment showing fair play in action.      On behalf  of the respondents, it was urged that if the contention of the petitioners is accepted which could compel the first  respondent to re-settle the seniority list, those over whom  petitioners and  those similarly  situated  would score a  march should have been impleaded as respondents and in their  absence, no  relief can be given to them. We would not accept  this contention  for two  reasons: (i)  that the decision  in   General  Manager,   South   Central   Railway Secundrabad etc. would permit us to negative the contention, this being  not a  case of  individual  claim  or  claim  of seniority by  one person  against specified  others,  but  a question  of   interpretation  of   a  provision  and  which interpretation could be given because it would be binding on the Union of India, the presence of others is unneces- 466 sary. Union of India would have merely to give effect to the decision of  this Court. Therefore, the absence of those who may by our interpretation be adversely affected in the facts and circumstances  of the  case need not be necessarily here and if  the relief  could have  been granted, the same would not have  been denied on the ground that proper parties were not before  the court.  But the  second reason why we should not examine  this contention  is that we are not inclined to grant any relief and the matter ends there.      Having examined  the matter from all angles, we find no substance  in  the  contentions  raised  on  behalf  of  the petitioners and  therefore all  the petitions  are dismissed with no order as to costs. S.R.                                     Petition dismissed. 467