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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 ... |
The reasoning is simple. Ratio |
The functional compulsions of the Survey of India require army engineers to be inducted, say half its Class I strength. Ratio |
These engineering officers have to possess some years of experience. Ratio |
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 b... |
To equate them with unequal civilian freshers is precisely the Procrustean exercise which is unconstitutional equality anathematised by Article 14. Ratio |
Let us eye the issue from the egalitarian angle of Articles 14 and 16. Ratio |
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 ... |
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. Ratio |
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. Ratio |
Merely because the sources of recruitment are different, there cannot be apartheidisation within the common service. Ratio |
They merely plead that unequals should not be forced into equality without regard to their rights. Ratio |
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. Ratio |
Secondly, their salaries 1061 are higher and that should not be forfeited as punishment for entering the Survey Service. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
A common pool where the plurality meets is a necessary postulate for the application of the equalist mandate. Ratio |
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. Ratio |
Resultantly, the military and civilian members remain immiscible layers save for some purposes. Ratio |
The condition of integration of men from the divergent sources being absent, rulings have held article 16 is out of the way. Ratio |
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. Ratio |
All that happens thereafter is merely a manifestation of initial advantage of credit for commissioned service. Ratio |
For this reason, we negative the case of discrimination. Ratio |
The relevant rulings not to burden but to brighten the points urged, may be referred to. Ratio |
In B. section Gupta 's case(1) where article 16 was agitated in a battle between promotees and direct recruits, one facet of Service Jurisprudence was illumined. Ratio |
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. Ratio |
Government runs the service and it is presumed that it knows what is best in the public interest. Ratio |
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... |
Commissions and Committees appointed by the Government 1062 may indeed give useful advice but ultimately it is for the Government to decide for itself. Ratio |
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. Ratio |
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 the rule now framed by the Government to determine seniority is just and fair.(2) A total conspectus does not persua... |
Absent fusion into one integrated service, article 16 is not attracted, in a proposition entrenched by precedents. Ratio |
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. Ratio |
We have read Shelat, J 's observations in Wadhwa 's case(4) to reinforce our view: The principles on which discrimination and breach of articles 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. Ratio |
To sum up the position, the two services were from as early as 1937 and before separate. Ratio |
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. Ratio |
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 article 14 or article 16 is involved if such an integration was not brought about, for, considering the p... |
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. Ratio |
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 article 14 or article 16(1). Ratio |
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. Ratio |
It is too late to upset settled law save where the point of extravaganza is reached. Ratio |
Here such a situation is yet to come. Ratio |
Again, Sri Govindan Nair 's submission suffers damage from the following observations in Ganga Ram 's(5) case. Ratio |
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. Ratio |
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 constituti... |
The army engineers remain in 'uniform ' as it were but wear a Survey of India overcoat. Ratio |
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. Ratio |
The two wings remain close but separate, not one homogenised family, as the various rules eloquently proclaim. Ratio |
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. Ratio |
The 1950 Rules bring out the following incidents of service boldly. Ratio |
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. Ratio |
More significantly, they secure Army promotions only if they pass the requisite army tests ab extra. Ratio |
They can be recalled by the Army and, for a certain period, they themselves may opt back to the army. Ratio |
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. Ratio |
They have to undergo the regular periodical drills in the army and their disciplinary control is not divested from the Army Chiefs. Ratio |
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. Ratio |
This is a unique pattern where the Army members remain with one foot in the Army and the other in the Survey of India. Ratio |
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. Ratio |
They are in it and yet out of it. Ratio |
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. Ratio |
Absent such complete integration, Article 14 or 16 cannot be invoked. Ratio |
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. Ratio |
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. Ratio |
So its composition cannot be reasonably confined to military personnel only. Ratio |
But critical Defence oriented work is also done, not only in seasons of national emergency but also during peace spans. Ratio |
The border line between national security by the Defence forces and developmental projects by civil services is becoming obsolete. Ratio |
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. Ratio |
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. Ratio |
More than all, as earlier elaborated, the tasks of the Survey for the Defence are in times of Emergency top priority items. Ratio |
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. Ratio |
It follows that a good proportion of Army engineers are a 'must ' for the Survey. Ratio |
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 ... |
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. Ratio |
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. Ratio |
But here 50% of Class I services, from a historical need based or other approach, cannot be called irrational, impertinent or improvident. Ratio |
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. Ratio |
The necessity to attract such officers is a factor. Ratio |
The reality of their engineering experience on commission cannot be wished away. Ratio |
The value of such experience for the Survey of India with Defence commitments argues itself. Ratio |
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. Ratio |
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. Ratio |
That is all there is to it. Ratio |
Sri Govindan Nair, with assertive argument, gave us anxious moments when he pleaded for minimum justice to the civilian elements. Ratio |
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 pr... |
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. Ratio |
After all, civilian entrants are not expendable commodities, especially when considerable civil developmental undertakings sustain the size of the service. Ratio |
And their contentment through promotional avenues is a relevant factor. Ratio |
The Survey of India is not a civil service 'sold ' to the military, stampeded by war psychosis. Ratio |
Nor does the philosophy of article 14 or article 16 contemplate de jure classification and de facto casteification in public services based on some meretricious or plausible differentiation. Ratio |
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 classificatio... |
Judges may interpret, even make viable, but not whittle down or undo the essence of the Article. Ratio |
Subba Rao J. hit the nail on the head when he cautioned in Lachhman Das vs 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. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
Article 14 sets out, to my mind, an attitude of mind, a way of life, rather than a precise rule of law. Ratio |
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 a... |
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. Ratio |
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