Col. A. S. Iyer & Ors Vs. V. Balasubramanyam & Ors [1979] INSC 219 (24 October 1979)
KRISHNAIYER, V.R.
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 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 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]
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 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, 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 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 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 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 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 ? 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 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 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 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 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.
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 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 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.
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 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 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 safeg
