Holding

The amendment to Army Instruction No. 78/78 does not violate Articles 14 or 16; the date‑based classification is valid and the ante‑dating benefit cannot be retrospectively extended.

Summary

The petitioners, commissioned officers of the Army Medical Corps, challenged Army Instruction No. 78/78 which limited the enlarged period of ante‑dating of commission to officers commissioned on or after 1 April 1978, alleging discrimination violating Articles 14 and 16 of the Constitution. The Court examined the language of the instruction, noting that the benefit of ante‑dating is granted only at the time of appointment and is intended as an incentive for recruits with post‑graduate qualifications. It held that the classification based on the date of commission is based on an intelligible differentia and has a rational nexus to the objective of attracting qualified officers. The Court further ruled that such an incentive cannot be retrospectively extended to officers already in service, and that the petitioners were not proper parties for a claim of individual seniority. Consequently, the amendment was not found unconstitutional and the writ petitions were dismissed.

Issues considered

Whether the amendment to Army Instruction No. 78/78, restricting the enlarged ante‑dating benefit to officers commissioned on or after 1 April 1978, violates Article 14 of the Constitution.
Whether the same amendment violates Article 16 of the Constitution.
Whether the classification based on the date of commission is arbitrary or lacks intelligible differentia and rational nexus.
Whether the benefit of ante‑dating, being an incentive, can be retrospectively applied to officers already in service.
Whether the petitioners are proper parties to seek relief affecting seniority of other officers.

Legislation cited

Constitution of Indias. Article 14, s. Article 16

Subjects

ante‑datingseniorityArmy InstructionArticle 14Article 16classificationdiscriminationpublic employmentconstitutional lawmilitary serviceretrospective benefit

Judgment

A 448

COL. b.D. JOSHI AND OTHERS

v.
B
UNION OF I"NDIA AND OTHERS

. -. ,.. / March I, 1983

[D.A. DESA1 AND V. BALAKRlsHNA ERADI, Ji.]
Ante~dating the com1nission-Meaning of-Army Instruction NO. 78/78
. dat~ 4th November 1978 prescribing on upward revision in the period.of benefit by
ante-dating, whether discriminatory and violative of Articles 14 and 16 of the Const/..
·'/ution--Army lnst'ruction No. 78/78 clause (J) and Note appended there(o scope of
lnt~rpretation of Statutes-NeceSsary-party-Joinder of 1

D

E

F

G
D.D. JOSHI V. UNION 449
A
HELD: 1. Reckoning .seniority ii;i service from a dee1ned date of com.. _
mission in respect of the officers with P.O. oualificatil1ns or previous service in_
.. i-.. Civil hospital etc. as prescribed in. the Anry Jrstructif'n is-- styled as benefit.of-
ante-dating. [455 F-G] '·
{ . . .
2.1. lf the Jan'guage ofa provision is clear, un!rnbiguous and·intelligibJe,
and does not admii of two meanings; tbe court is b6und to construe . in its Ordi- 91
nary sense because it is Welt· recognised. that lat'!guage used speaks the mind and
reveals the _intention of the· framers. If the language of the statute is clear and f
unambiguous and if two interpretations are not reB!Jonably possible it would be -
wrong to discard the plain meaning_ of the words used in order to meet p. possible .~
iniustiee. In such a situation, it would_be impermissible to call nnraid atiy exter.,,..
nal aid of.construction· to find out the hidden meaning. The cardinal rule off .·
construction of a statute is that it _should- be construed according to the intention - C
~xpressed in the statute itself. [457 D-E]

,.•
\ Commissioner of Income Tax Madras v. Mfs. T. V. Sundaram lylngar (P)
Ltil. [1976] I S.C.C. 77@ p, 84-85; Capper v. Beldwin [1965] 2 .Q.B. 53@ 61,
ref•rred to. •

2.2.' On a plajn grammatical construction of para 6 (a) (b) and (c) of·
Arf»y Instruction ~O. 74,_ of 76, it js clear ~t the bCnefit of ante-dating the t...
commission will be available-at the time of being comm\ssioned as a'"n officer
•. of· the Army Medical Corps i.e. at - the_ tilne of .~ppointment a_nd the quali- ·
ficatiOns must have- been acquired prior to- joi_niilg the AMC. The expres-
sions uafthe tiine of appointment" and "higher qualifications obtained -prior
fo appointment" provided a- terminus aquo for the eligibility of the benefit E
when1he benefit of abte-dating can bo gnj0ted and claimed. [457 C-D]
!--- "!I
- i- 2.3. The _object, ihe purpose and the intention_ und~;lying the provis·ions
waS to compensate for. the extra· time, money an~ energy spent in acquiritt.a post
gradoa(e qualification equipped with which the men enter serVice and this object,
purpose or h:itention uriderlying. _the provision'_ is clearly manifest in the language
u&ed in the rele:Vant "parag~aphs of the Army, Instiuetion bearing on the subject F
by providing that eligibility f01'R:aitiin_g the benefit of S:nte-datii:ig the commission,
namely, having a post gractllate qualification· shall be taken into account at the
time of eoJering the service. Two pre-conditions have to. be fulfilled before the·
benefit can. be acquired i.e. (!) the candidate must have a post-graduate qualifi-
cation-obtained prior to appointment, and <Z> that such _qualificatiop- ·must have
been acquired and inuSi be available at the time of appointment. TberefOre, not,
only the language of t~e- relevant provision IeaVes no room for doubt 'but.the
object and intention underlying the provision clearly buttressed the meaning of
the provision. [458·F-H, 459 A] . ·

3.1. The enlarged period of ante-dating \he commi;sion introduced from ·
' April 1;1978 and made admissible to only those ehtering on or after 1-4-78 cannot H
be ~aid to be either violative of Article 14 or 16 of the Constitotlon. [463 D-E]
. ' II'·~ ,
..'•',

' . '
450 SUPR8MB COURT REPORTS (1983] 2 S.C.R.

A 3.2. An employer has a right to grant incentive for attracting better
qualified persons to the servi� offered by the empJoyer. If the incentive is devi·
sed with a view to offering inducement to thoso wavering whether to enter a
certain service or not those who were already in service and had that benefit once,
cannot be heard to say that this new incentive should be retrospectively enforced
so as to give them the same benefit. No incentive can be retrospective, though
conditions of service can be retrospectively made. [ 460 F-H, 461 B]
B
3.3. The Note appended to the amended Army Instruction No. 78/78
providing the benefit of enlarged period o:f ante-dating being made available to
new entrants only will have no pernicious tendency of dividing a homogenous
class. In the matter of incentive offered at the time of entering the service, there
is no homogenous cl;;tss. The new comers may become members of the class
after being commissioned. They are outside the cadre before entrance.
They do
c
not belong to the class of existing members of the AMC. They derive the benefit
of ante -dating simultaneously with becoming the members of AMC. They do no t
get any benefit denied to others after becoming the members as benefit of ante .
dating is available at the time of appointment only. Recruitment and Retire-
ment arc a continuous process. Those who are recruited at the relevant time will
D have to satisfy the conditions for recruitment then in force and would be entitled
to tho benefits that may be available tO'the now entrants. [462 B-D, F-Gl

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

3.S. The benefit of ante-dating was devised long before tho recommen
dations of the Third Pay Commission were formulated and each petitioner got the
benefit consistent with the Army Instruction in force at the time of being commis..
sioncd in the AMC. A subsequent enlargement of the period, not pursuant to
G the recommendalion of the Pay Commission and held out as .in inducement for
recruitment.from the market cannot be claimed as a matter of right by those who
have already availed of tho benefit of earlier occasion. [464 A·C]

Purshotam Lal Dhi111ra and Ors. v. Union of India, AIR 197� SC. 1088.
referred to.

3.6. The contention that limited retrospectively is given by impugned
Army Instruction, is not correct. It is jefact a case of marginal adjustment
showing fair play in action. (465 E-F)
.'
b.O. JOSHI v. UNION (Desai, !.) 451

4. Impleading or proper and necessary parties to an adjudication will
arise 9nly in ciises of individual claim or claim of seniority by one 1>erson against
·specified others, but 'a <\uestion of iiiterpretation could be given because it would
·be binding on the Union. of India, the presence of others is unnecessary. Union of
l~dia 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 ,affe9ted in the facts and -circumstances of the case need 8
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
Co'urt. (465 _G·H, 466 A·BJ

ORIGINAL JURISDICTION ; Writ Petitions Nos. 3685-91 of 1982
and S636 of 1980.
c
(Under article 32 of the Constitution of India).

M.K. Ramamurthi and Mrs. Indra Sawhney for the Petitioners.
'
N.C. Talukdar and V.B. Sahariya and Miss A. Subhashni for
D
the Respondents •
•
The Judgment.of the Court was delivered by
. ' '

, DESAI, J. Commisioned Officer belonging to Army Medical
Corps_ ('AMC' for sb<Jrt), having post graduate qualifications in
different specialities at the time of obtaining 'commission have
.approached this Court under Article 32 complaining of a discri-
J minatory treatment in the matter of granting antedating benefit
which is directly linked to seniority and promolional prospects.
' ...
. ·Petitioner~ in 'the ·first batch ·of petitions were .granted
comm~ssion in AMC beiween 1954 and 1963. Petitioner in the
second petition ~as·commissioned'as a regular offi~er in AMC on
Mat~h IS, 1'970. There are in all 154 commissioned officers indud-
ing the petitioners belonging to AMC who are similarly .situated
and who according to the petitioners suffered the same discrim.inil=
tory treatment. The petition is not. in a representative capacity.
G
~etitioners assert that the decisibn in this group of petitions would
affect roughly-147 other officers.

Petitioners held post graduate qualifications in different bran-
J; ~ ' ~· . ches of medical . science and some of them held an approved ~hole ff
time appointment in a recognised civil hospital for a perivd of sb1
.11wnths or 111ore prior to being commissio!Jed in l\MC.
' ' - - . .. . ~
'

452 SUPREME COURT REPO!l.TS [1983] 2 s.c.R.

A 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 !Ill under : ·
B
"(a) An officer who has held an approved wholetime
appointment in a ·recognised civil hospital for a period
of six months or more will be eligible for an ante·
date of six months. ·~·
c (b) A candidate will be eligible for the grant of. an
ante-Jate 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 Conucil, provided that the candidate lias to
D atten.d a course of Instruction in a recognised institu·
tion for at least 9 months to qualify for such Diploma. ·
I
\,- -

(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
E appointment. This will normally be granted for quali-
fications such as Doctor of Medicine, Master of
Surgery, Fellow of the Royal College of Surgeon_s,
Member of the ~oyal College of Phy,sicians or an
equivalent qualification obtained by examination from·
recognised Universities or colleges. .J
F
(d) In the c_ase of a candidate who is eligible for an ante-
date 11nder. more than one of the preceding sub·para-
graphs, the maximum period of ante-date will be limited
to eighteen months."
G
It appears that prior to December 31st, 1965 maximum period - '
of ante-dating benefit was I. I /2 years which ·was reduced to one
,. year from J11nuary I, 1966. It was enlarged to l!laximum 2-1/'4,
'
years from April I, 1978. Thus the period varied but-. the conditions
H 1
for eligibility remained
. more or less constant.
.

.)
',,.
D.D. JOSHI v. UNION (Desai, J.)' 453 _,,,_

By Army Instruction No.74 of f976, the period of ante-dating
A
under 'clauses (a), (b) · & (c) remained unchanged but the period
under c,lause (d) was raised to 18 months in the aggregate. '

By the impugned Army Instruction No. 78 of 78 dat~d.
November, 4, 1978, a further upward revision. 1n 'the period of B
., ante·dating the commission by amending.Army Instruction No. 74
of 76 was.prescribed: By ihis ainendment;·the period prescribe<! in
. clause '(a) above .t~mained unchang~d. The jleri6d of ante·dating
. prescrbed fo clause (b) wa.s revised from 6' .months to 12 ,months
aad the period of . instruction· was revised from 9 · months
·to 12 months. In clause (c),· !he period of 12 months was C·
revis~d to 2 years and in clause (d), the aggregate was upward
revised from 12 months to 2-1/2. years. A note• wa~ apptpded
to thjs amendment which according to' the petitione_rs introduces
the discrimination. It reads as u°'der :

"The above provisions are effective w.e.i'. l.4. 78. How D
ever, the seniority of Officers who joined with PG. quali·
ficatio~s during 1-1/1/2 ye~rs prior to 1.4.78 will be pro.:
;..- .

tected by grant of requ;site ante·date so that they do not
,become junior to officers who have j6ined later with
equivalent PG qualifications."
E
.Petitioners contend that denial ofthe oenefit of longer period.
. ofante·dating the commission introduced by the amended Army
. }'-'•.
~·
Instruction No. 78 qf 78 which bec!lme effective from April I, 1978
to those. com.missioned officers wbo bad requisite post graduate
qualificatiOns when they were commissioned prior to ApriLI, 1978,
. is grossly discriminatory and the choice of date is, arbitrary It is
,·alleged that tbose,qfficers wbo·had· post grad11ate qualificati6n at.
· the time of being commissioned in AMC whether they were com- ,
misioned prior lo J.4.78 or thereafter for the purpose of conditions
of service and treat111ent from one ·homogenous class ·and by the
arbitra~ choice of date, this homogenous ~lass is divided to pick
and choose a,rbitrarily for the benefit of longer period of ante·dating
G
,the commission and the classifieation is not based on any intelligble
tlifferentia and if tlti!re b~ any, it does not have any rational nexus
, to the objects sought _to b~ achieved .., It is further alleged that the
choice of date for gtaoling the be\lefit .being thoroughly' arbitrary
. Ii
,and is not explainable on any ratidnal hypothesi.s a.nd therefore, on ·
\hes•. l!l'ounds! the denia,I of. be11ef\t of extended period of a,nt~

. _-_..,'
454 SUPREME Cl'URl REPORTS (19831 2 s.c.it, .
A dating to those who were commissioned prior to 1.4.78 is
discriminatory and ii-is a denial of an equality of opportunity in
. the matter of employment and thereby violative of Art. 16 of the
Consti.tutfon. It is alleged that in the matter. of ante-dating the
~ .·
commissson, there is no difference between those who had post
graduate qualification when , commissioned prior to 1.4. 78
B and those who were commissioned subsequent to that d11te.
and therefore, the earlier entrants have- been treated with an evil
' eye and unequal hand and therefore this trea_tlilent is violative
of the guarantee of _equality in the !Jlatter of employment.
Petitioners have averred in the petition that the benefit of ante-
dating the comfuission to thase . who were commissioned after
obtaining post graduate qualification irrespetiye of whether they
hav. .commissioned prior to a certain date or subsequent to that
date; in _.the matter of conditions or" service, cannot differently
treated and they are entitled to same treatment irrespective of
the date on whi~h the commission was granted. ;.,

D
. .. ,
'
In· the return filed on behalf of the respondents, it was speci-
fcaily contended that the benefit of ante-dating is granted at the
the time of being commissiened in AMC and it is an incentive for
attracting persons who applied for being commissioned after
obtaining post gradute qualification, It is further averred that if
E. ~ven the old commissioned officers are given benefit of· larg~r .
period of ante-dating,. it would adversely affect a ·1arge
number of officers of the · AMC and ·.would · disturb the
seniority of number of, personit;. It was. further alleged that
promotions are given on the basis of seniority. Il was'
averred
.
that \ thilse commissioned
.
offi~ers of AMC who have -
F either acqµired thi, , post graduate qualification while in the·.
service or who were merely M.B.B.S. at the ti"me of being commis-
sioned and tho_se who had post graduate qualification when cQ.111·
missioned are all brought on a common seniot'ity list and on the
basis of this ;:ommon seniority list, promotion to the higber rank is
G 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
IJ· annexed to the ' written submi!;Sions
. ,
by the learned Additional
Solicitor General showing that giving of benefit of longer perfod_ of
D.D. JOSHI P, UNION (Desai, 1,) 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 promoticlnal\ prospcet 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
o.f ante-dating the commission is revised to 2-1/2 'years, if those B
, just above the marginal line meaniq,g 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 t c
.years prior to 1.4.78, will be protected by grant of requisite ante-
date so that they do not become junior to officers wbo have joined
later with. equivalent P.G. qualifications. It was said that there is
raiionale behind the note and it is incorr,ect to say that limited
retrospective effect is given to the impugned· Army Instruction
No. 78 of 78. .D
At the outset, it is necessary to clear the grouhd by
understand fog what constitutes ante-dating the· commission. It
appears that the basic minimum entry qualification for being com-·
missioned in AMC is graduate degree such as M.B.B.S. Those who
enter ·service with post graduate qualification such as post E
graduate cjiploma or post· graduate degree or tho.se who enter after
)laving 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 com-
mission depending upon the period for which under the relevant
Army In~truction such person is qualified. In other words,
such person would he deemed to have been commissioned
at a date earlier than the date · on which be is actually com·
missioned. This deemed date would be the date on whic!i
person concerned is deemed to have· been commissioned and
his s~niority would be reckoned from such deemed date. This is
what is styled in the relevant Army Instruction as benefit of ante- G
dating.
' '
The commissioned officers in the AMC fall·into three recognis-
ed divisions : (l) those who enter with post graduate qualification, H
(2) those who acquire post graduate qualification after being com-
.missioned, and (3) those w)lo entet V.1!·1vf·B.B.~ .. a.nd n.eve£ acquire
. 456 SU!'RBMB COURT Rl!POltTS · (1983) 2 s.c.•

any further post graduate qualification. It is not disputed that all
the three are borne on the common seniority list because they form-
ed 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 an'ie-dating the
commission is given at the time of bring commissioned and not
later on. The learned Additional Solicitor General pointed out
that this benefit of ante-dating commissions is in vogue from 1948
but the period has varied according to the decision of the Govern-
c ment of India to provide incentive for entering AMC depending
upon market conditions of recruitment. It appears that prior
· to December I, 1965, maximum ante-dating admissible on acount
of post graduate qualification and for whole time hospital
appointment was It years. From January I, 1966, it was reduced
to one year. Government of India was again approached for enlarg-
D. ing the period of ante-dating admissible on account of the post
graduate qualification. Accepting the proposai, the maximum period
for ante-dating the commission was revised from one year to 2!
years with ~!feet from April I, 1978 with the marginal adjustment
to avoid any undeserved benefit being given to the later entrants
over earlier entran1s to be adjusted as set out in the note appended
E 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 sub-
mission is borne out by the language iof the relevant Army
Instruction. ~
F
Let us turn to the Army Instruction dated August 16i-.1948.
Para (b) which is relevant for the present purpose provided that
'A candidate will be eligible for !he grant of an ante-date not exceed-
ing 6 months if he, at the time of selection is in possession of a
G 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 Army Instruction No. 74 of 76 dated September 18, 1976
clearly provides that 'a candidate will be eligible for the grant
H . of an ante-date not exceeding 12 months if be, rat the time of
Pfpointment is in p,~~s~"·!(on pf a post 1Jradu11t~ Diplam°' in an:y
D.D. JOSHI v. UNION (Desai, !.) 457

A
•· branch ........................... ' Again attention should be focussed, on
the expression 'at the time of appointment'. By the impugned amend-
ment by Arllly Instruction No. 78 of 78 dated November 4, 1978
wh11t is revised is the period, in eara 6(b) and 6(e) raising it to
12 monhts and 2 years respectively .retaining the condition of eligi·
bility, namely, "•at the time of appointment:'·. )n this ~onnection, B
one can advantageously refer to para 6(c) of Army Instruction
No. 74 of 76 whi~h provided that 'at the time of appointment, a
candldatc wit! 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 ter- c
minus a quo for the eligibility of the benefit when the benefit of ante-
dating can be granted and ' claim:d. On a plain grammatical construc-
tion .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 time of being commissioned as an officer
in AMC, i.e. at the time of appointment and the qualification· D
must have been acquired prior to joining AMC. If the language
of a provisoli 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
languliie of the statute is clear and unambiguous, and if two inter- lil
pretations are not reasonablly ppssible, it would be wrong to discard
the plain meaning of the words used in order to meet· a possible
injustice. (See The C.r.r., 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 constrµction to find out the hidden mean-
ing. The cardinal rule fdr construction of a statute is that it should
F
be construed according ~o the intention expressed in statute ·itself
(see Capper v. Bledwin).('l) It would be presently pointed out that the
1
underlying intention object and purpose for granting the benefit of
antedating clearly bears out the meaning deduced by literal cons-
truction.
G

. It is therefore necessary to go into the genesis of e.xtending this
benefit of ante-dating the commision. It is well known those who
I

H
(!) [1976] ! S.C.C. 77 at pp. 84-85.

(2) (1965) 2 Q.B. 53@ 61.
458 slJl'tl.EMil COIJRT UPOli.ts [1983) ·'.). s;c,R.

A
,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 quali-
fication. 'Jf the employer meaning the Union Government would
get the benefit ,,f person who bas put in 2 to 3 years of advanced
8- learning and,· training and is, therefore better equipped, he or she
must be compensated in some measure. There would be qualitative
differ~nce 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 com-
pensated by grant of ante-dating benefit, therefore the benefit of
c ante-dating was devised and has be~n in vogue .. Obviously, this .
benefit is to be given at the time of entering service. The recogni-
tion for the time, money ·and energy spent by an· entrant with post-
a
graduate qualification, compared to graduate who enters AMC
because of this minimum eligibility qualification is implicit in devis-
ing this benefit of ante-dating the commission. If the Union
D Government were to treat one who has the graduate degree on par
with one who bas a post gr~duate degree both are brought on the
common senirity list for further promotion, ol>viously. the person
who spent sometime in acquiring post graduate\ qualification, the
bene~t of which w0uld be available to the employer, would be at a
comp'lirative disadvantage in the matter of seniority and futnre pro-
E motion compared to one who came with only graduate qualification.
It is this difference between a graduate entrant and entrant with
post graduate qualification which was sought to b~ compensated
by granting .the benefit of ante-dating the commission. The object, .-{ I
the puprose and the intention underlyh1g the provision was to com-
pensate for the extra time1 money and energy spent in acquiring
F 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 eligi-
bility for gaining the benefit of ante-dating the commission, namely,
G
having a post graduate qualification shall be taken into account
at the time of entering the service.' Two pre-conditions have to be
' .
fulfilled before t~.e benefit can be acquired i.e. (I) the candidate must ,
have a post-gradute qualification obtained prior to appointment,
and (2) that such qualification must have been acquired and must ,
b.e available at the time of appointment. Therefore, not only the
H language of the relevant provision leaves no room for doubt but the
D.D. JOSHI v. JOSHI (Desai, J.) 459

object and intention underlying the provision clearly buttessed the
..meaning of the provision .
r )
If the benefit of ante'dating the commission is not to be
granted at the time of enacting the AMC to those who enter with
post graduate qualification, bow would their case be differentiated B
or <listinguished from those who acquire post graduate qualification
while in service. There is no qualit~tive difl'erence 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 th'ose who enter AMC with post graduate c
qualification, and not to those who acquire such qualification after
being commissitlned. 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
D·
while in service. The quality of serviee rendered by both having
identical qualificatfon would not be materially different, and yet in
the case of first, the benefit of ante-dating the commission is exten-
ded by the relevant Army instruction .while in the case of !after, no
such benefit is given. This clearly establishes that the benefit of anti-
dating the. commission is to b• made available only to those who
bad acquired post graduate qualification before being commissioned
into the AMC. The rece'pient of the benefit gets seniority over
.}-
earlier entrants and tbe 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 conside~ed for
promotion earlier than those over : whom they score a march by F
. ' ante-dating the commission. It is thus abundantly clear that the
benefit of ante-datini the commission is available only at the time of
entering the AMC. A subsequent enlargement of the benefit cannot
· be restrospectively made available to those who had already entered
service and once availed of the benefit because their case thereafter G
would not be different from those who acquired post-grad~ate
qualification after being commissioned as members of AMC.

It was strenuously contended on behalf of the petitioners that 8
all commissioned officers of AMC who entered AMC after acquiring
post graduate qualification formed one homogeneous class and by
460 SUPREMB COURT RBPORTS [1983] 2 s.c.R.

A. artificially selecting the date of April I, 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 enlar-
B
ging the period of entitlement. It was therefore, contended that the
note at the foot of-the amended Army Instruction No. 78/78 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
c en~red subsequent ·to that date,. is violative of the guarantee of
equality enshrined in Article I 4 and is a denial of equality of oppor-
tunity in the.matter of employment as guaranteed under Article .16
11ll therefore, being unconstitutional deserves to be struck down. A
good number of deCisions of this Court were read to us. The deci-
_D 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 classifica-
tion 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
E ba~d 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.

F
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 bad 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 differen(ia.
G One has to remember that an employer bas a right to grant incentive
for attracting better qualified persons to the service offered by the
einployer. If the i!lcentive is devised with a view to offering induce-·
ment to those wavering whether to enter I\ 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
8 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
\
b.I>. msm v. UNION (Desai, J.) 461
A
of ante-dating the commission for persons joining AMC after having
. acquired post-graduate qualification was given as an incentive with
·a view to attracting more persons who have already acquired post·
graduate qualification. Those who were already in service and had·
that benefit · once, cannot be heard to say that this new incentive
should be retrospectively enforced s~ as to give them the same bene-
fit. It is difficuli to conceive that an incentive can be retrospective
though it is indisputable that conditions of service can qe restrospec-
tively made. And the unfairness of the approach of the petitioners
becomes manifest from the fact that while maximum period of ante-
dating prior to December 31, 1965 was It years when petitioners
entered AMC, which was reduced to one year effective from January
I. 1965, none of them ever suggested that this b.eing a condition of
c
service rbust uniformly apply to those who would be covered by the
conditions of eligibility and thereafter the period must be reduced.
But subsequently when the period of ante-dating was enlarged by the
impugned Army Instruction which ·became effective from April I,
1978, it is now clamoured that this benefit must be extended to those D
who have entered AMC way back as early as November, 1949 and
in the process give the petitioners and similarly situated persons
a march over those who are already seuior to them in the
common seniority list.

E
The degree of unfairness of the claim of petitioners·can .be
demonstrably established by working out the position of·some peti-
tioners on the footing th~ each one oft.hem is entitled to longer
period of ante-dating the commission. Isl petitioner Col. D.D.
Joshi was commissioned· on July 25, 1954 and after obtaining the F
benefit of ante-dating then aviailable, he was put in the seniority list
as if he bad been commissioned on January 25, J953. Now if he is
given the benefit of ante-dating the commission by 2t years, his
deemed date of joining the AMC would be January 25, 1952. Io the
process, he would scope a march over 21 con-missioned officers who
are already .senior to him in the seniority list. This. is equally true of G
all the 7 petitioners but in the case of petitioner No. 3-Col. V.S.
Sharma, he would score a march over 41 commissioned officers already
. senior to him. One M.B.L. Sexena who is not one of the petitioners
but who is similarly situated, if now held entitled to benefit of 2t
years ante·dating, he would jump over 50 commissioned officers H
senior to him. In the case of petitioner No. 7, he would supersede '
.. j
a
95 o!fi9ers already senior to him and good number of thellj are
.. " • -' ' '
462 SUPRBME COURT REPORTS (1983] 2 s.c.R.

A persons who had acquired post graduate qualification, of course, after
joining the service. Could one ever think of an incentive giving
such an undeserved advantage ? The answer is obviously in the
negative.
The next question is does this incentive divide a homogeneous
class? In the matter of incentive offered at .the time of entering the
B. service, there is no question of a homogeneous class. The new
comers may become members of the class after being commissioned.
They are outside the cadre before entrance. They do not belong to
the class of existing members of the AMC. They derive the benefit
of ante-dating simultaneously with becoming a member of A,MC.
They do not get any benefit denied to others after becoming.the
c members as benefit of ante-dating is available at the time of appoint-
ment. There may be an enlargement of the cadre. There would be
retirements. Recruitment and retirement are a continuous process.
Those who are recruited at the relevant time will have to satisfy the
conditions for recruitment then ip force and would be entitled to the
D benefits that may be available to the new entrants. If the principle
canvassed for on behalf of the petitioners is taken to the logical end,
it would lead to a startling result. Suppose a rule is now made· that
only persons with post graduate qualification would be qualified for
being commissioned iµ AMC, can anyone contend that as in the
past mere graduates were recruited and therefore, ignoring the revised
B minimum eligibility qualification, a •graduate must be considered for
recruitment. Therefore, in respect of benefits which are available
for certain qualification at the time of entering the service, the same
having been made available, a revision of the same at a. later date to
attract fresh entrants cannot be retrospectively .claimed by those who
had already entered service knowing full well the benefit then avail·
able.

Therefore, there is no substance in the contention that the
note ~ppended to the;am.,nded Army Instruction No. 78/78 providing
the benefit of enlarged period of ante-dating being made available
to new entrants only will have the pernicious tendency of dividing a
G homogeneous class.
It was then contended that the selection of the date April I,
1978 is thoroughly arbitrary and has no national nexus to the objects
sought to ):le achieved ... Reliance was placed on Union of India &
H Anr. v M/s\Parameswaran. Match Works etc.(') In that case this Court

(!) [1975) 2 S.C.R. 573.
....
•
•
D.D. JOSHI v. UNION (Desai, J.) 463
''
quoted with approval the decision in Louisviile Gas Co. v. Alabama
Power Co., (') wherein it was observed that the choice of a date as a
basis for classification cannot always be dubbed as arbitrary even if
no particular reason is forthcoming for the choice unless it is shown
to be capricious or whimsical in the circumstances of the case. In the
present case, there is no division of a homogeneous class by the
choice of the date. The object underlying the benefit extended to the 8
new entrants determines the choice of date. Inducement for attrac-
ting fresh recruits from the market must come into force by a certain
date. The employer can legitimately determine, keeping in view the
demands of public service, from which date the document will be
available. In such a situation choice of date· is uot wholly arbitrary
· and has not the tendency to devide a homogeneous class. 'we see no c
classification amongst those who enter AMC after acquiring Post·
graduate qualification determined by length of ante-dating bene-
fit because each one at the relevant time obtained the advantage of
ante-dating as it was then fo force. There is no differential treat-
ment. There is no division of a homogeneous class. The distinct
0
possibility is that if petitioner's contention is accepted there would be
vertical splitting of a homogeneous class. It is therefore, difficult to
accept the contention that the note under the impugned atnended
Army Instruction ·is violative of Art. 14 or Art. 16.

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

A commits a breach of Arts. 14 and 16 of the Constitution. It is diffi·
cult to appreciate how this decision would help the petitioners.
The benefit \!If ante-dating was devised long before the recom- ~· ...
mendations of the Third Pay Commission were formulated and each
petitioner got the benefit consistent with . the Army Instruction in
force at the time of being commissioned in the AMC A subsequent
8 enlargement of the period, not pursuant to the recommendation of
the Pay Commission and held out as an inducement for recruitment
from the market cannot be claimed as a matter of right by those
who have already availed of the benefit on earlier occasion.

c 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
D
A.V.R. Siddhanti &Ors.('). We again fail to see how this decision helps
the petitioners. The fallacy underlying the submission is that this
benefit of enlarged period of arite-dating is claimed as a condition of
service uniformally applicable to all persons qualifying for the same
ignoring the conditions under which it can be claimed. The conten-
E tion overlooks the basic condiiion 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 ex··
tended to those who had entered more than 25 years ago, the
F inducement so offered would adversely affect a large number of
persons who need not be subjected to unfair treatment for no fault
of theirs. There are hundreds of officers, in all 1227, who are hol
ding post graduate qualifications today, may be having acquired the
same after joining service but there being )lo qualitative difference
in the service rendered by them and those who entered with PG
G qualification, way-back in 1948 or 1949 or 1953, if the contention is
accepted the petitioners would score a march over others having
now the same qualificatiolJ tllereby giving th~ . p~titioners an 11nfair

H
(1) [1974) 3 S C.R. 207.
D.D. JOSHI v. (Desai, !,) 465

advantage which ought not to be given, if approaching the matter
from that angle. would not violate any constitutional mandate.
J
The next contention is that if giving the petitioners benefit of
enlarged period of ante-dating would unsettle :a settled seniority list,
the respondents have already given limited retrospectivity to the revi-
sed benefit by providing in the note to the impugned Army Instruc- B
tion 78/78 that : "The seniority officers who joined with PG qualifi-
cations during 1-1 /2 years prior to 1.4. 78 will be protected by grant
of requisite ante-date so that they 'do not become junior to officers
who have joined later with equivalent PG qualifications." It was
urged that the provision in the note would benefit. some of those who
joined with PG qualifications even prior to April I, 1978 in a limited c
· way, and thus its retrospective operation is implicit in the note.
There is no merit in this contention. In fact the provision
demonstrably establishes fair. play in action. An illustr~tion would
...J
expose the fallacy underlying the submission. 'A' joined with PG
qualification and six months full time service on 3 lst 'March, 1978,
D
'B' joined with the same qualification and eligibility on April 2nd,
1978. Both are wholly similarly situated. •A' would get ante-date
benefit of 1·1/2 years and 'B' would qualify for 2! years. 'B' tbongh
a later entrant with same qualifications would score a march over
'A'. This would be extremely unfair. To protect such cases, it is
provided that those who joined with PG qualifications during 1-1/2 E
~-
years prior to April 1, 1978 will be protected by giving of requisite
ante·date to protect their seniority over later entrants who qualified
for larger period of ante-dating. It is idle to contend that limited
retrospectivity is given to impugned Army Ia.truction. It is in fact
a case of marginal adjustment showing fair play in action.
F
On behalf of the respondents, it was urged that if the
contention of the petitioners is accepted which could compel the
first respondent to re-settle the seniority list, those over whom peti·
tioners and those similarly situated would score a march should have
been impleaded as respondents and in their absence, no. relief can be
G
given to them. We would not accept this conter.tion for two
reasons : (i) that the decision in General Manager, South Central
Railway Socundrabad etc. would permit us to negative the contention,
this being not a case of individual claim or claim of seniority by one ·
person against specified others, but a question of interpretation of a H
provision and which interpretation could be given because it would
be \ljl)ding on the f!ni()l! of India, \h~ presence of q\b~rs is 1111n~~~~"'
466 SUPREME COURT REPORTS [1983] 2 s.c.R.

sary. Union of India would have merely to give effect to the deci-
sion of this Court. Therefore, the absence of those who may by
our interpretation be adversely affected in the facts and circumstan-
ces of the case need not be necessarily here and if the relief could
have been granted, the same would not have been denied on the
8 ground that proper parties were not before the court. But the second
reason why we should not examine this contention is that we are not
inclined to grant any relief and the matter ends there.

Having examined the matter from all angles, we find no subs·
tance in the contentions raised on behalf of the peiitioners and there-
c fore all the petitions are dismissed with no order as to costs.

S.R. Petition dismissed.