TMI Blog1983 (3) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... ners suffered the same discriminatory treatment The petition is not in a representative capacity. Petitioners assert that the decision in this group of petitions would affect roughly 147 other officers. Petitioners held post graduate qualifications in different branches of medical science and some of them held an approved wholetime appointment in a recognised civil hospital for a period of six months or more prior to being commissioned in AMC. There is a provision for giving the benefit of ante- dating the commission for varying periods, if the commissioned officer at the time of entry fulfils prescribed qualification. The earliest available reference is to Army Instruction No. 31/S/48 dated August 16, 1948 which provided as under: (a) An officer who has held an approved wholetime appointment in a recognised civil hospital for a period of six months or mole will be eligible for an ante date of six months. (b) A candidate will be eligible for the grant of an ante-date not exceeding six months if he, at the time of selection, is in possession of a post graduate Diploma in any branch of medical science recognised by the Indian Medical Council, provided that the candidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amended Army Instruction No. 78 of 78 which became effective from April 1, 1978 to those commissioned officers who had requisite post graduate qualifications when they were commissioned prior to April 1, 1978, is grossly discriminatory and the choice of date is arbitrary It is alleged that those officers who had post graduate qualification at the time of being commissioned in AMC whether they were commissioned prior to 1.4.78 or thereafter for the purpose of conditions of service and treatment from one homogenous class and by the arbitray choice of date, this homogenous class is divided to pick and choose arbitrarily for the benefit of longer period of ante-dating the commission and the classification is not based on any intelligible differentia and if there be any, it does not have any rational nexus to the objects sought to be achieved. It is further alleged that the choice of date for granting the benefit being thoroughly arbitrary and is not explainable on ally rational hypothesis and therefore, on these grounds. the denial of benefit of extended period of ante- dating to those who were commissioned prior to 1.4.78 is discriminatory and it is a denial of an equality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld give them an underserved advantage of jumping over a number of senior officers and the promotional prospect of many such persons would be adversely affected. The note at the foot of the Army Instruction No. 78 of 78 was explained by saying that since by the impugned Army Instruction the maximum period of ante-dating the commission is revised to 2-1/2 years, if those just above the marginal line meaning those who were commissioned shortly prior to 1.4.78, if not protected, would be adversely affected by those entering just after the date and would score a march over the earlier entrants and to protect them, it was provided that the seniority of officers who joined with PG. qualification during the 1/2 years prior to 1.4.78, will be protected by grant of requisite antedate so that they do not become junior to officers who have joined later with equivalent P.G. qualifications. It was said that there is rationale behind the note and it is incorrect to say that limited retrospective effect is given to the impugned Army Instruction No. 78 of 78. At the outset, it is necessary to clear the ground by understanding what constitutes ante-dating the commission. It appears that the basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April 1, 1978 with the marginal adjustment to avoid any undeserved benefit being given to the later entrants over earlier entrants to be adjusted as set out in the note appended to the impugned Army Instruction. It was however, strenuously urged that this benefit of ante-dating was admissible at the time of appointment because it was an incentive and not a benefit being conferred for all those who have already entered AMC. This submission is borne out by the language of the relevant Army Instruction. Let us turn to the Army Instruction dated August 16, 1948. Para (b) which is relevant for the present purpose provided that 'A candidate will be eligible for the grant of ar. ante-date not exceeding 6 months if he, at the time of selection is in possession of a post graduate Diploma etc.' The words 'at the time of selection' clearly connotes the stage when benefit is admissible and reveals the object underlying the benefit of ante-dating. Similarly para 6(b) of Ar r y Instruction No. 74 of 76 dated September 18, 1976 clearly provides that 'a candidate will be eligible for the grant of an ante-date not exceeding 12 months if he, at the time of appointment is in po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of extending this benefit of ante-dating the commission. It is well known those who pursue study for higher qualification in any branch of medicine after acquiring the graduate degree had to put in formerly two years and now nearly three years in acquiring post graduate qualification. If the employer meaning the Union Government would get the benefit of person who has put in 2 to 3 years of advanced learning and training and is, therefore better equipped, he or she must be compensated in some measure. There would be qualitative difference in the service rendered by a graduate entrant and an entrant with post graduate qualification. The time, money and energy expended in acquiring higher qualification is sought to be compensated by grant of ante-dating benefit, therefore the benefit of ante-dating was devised and has been in vogue. Obviously, this benefit is to be given at the time of entering service. The recognition for the time, money and energy spent by an entrant with postgraduate qualification, compared to a graduate who enters AMC because of this minimum eligibility qualification is implicit in devising this benefit of ante-dating the commission. If the Union Government wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of approximately 4,400 commissioned officers of AMC, there are about 154 commissioned officers who were commissioned after having acquired post-graduate qualification. As against this there are about 1227 officers of the AMC who acquired post- graduate qualification while in service. The quality of service rendered by both having identical qualification would not be materially different, and yet in the case of first, the benefit of ante-dating the commission is extended by the relevant Army Instruction while in the case of latter, no such benefit is given. This clearly establishes that the benefit of antedating the commission is to b? made available only to those who had acquired post graduate qualification before being commissioned into the AMC. The recepient of the benefit gets seniority over earlier entrants and the seniority is determined, in the absence of another rule from the date of entry in the service or cadre. The seniority so acquired will enable such persons to be considered for promotion earlier than those over whom they score a march by ante-dating the commission. It is thus abundantly clear that the benefit of ante-dating the commission is available only at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain date denying the same benefit to those who had already entered AMC prior to that date, has the pernicious tendency to divide a homogenous class based on arbitrary criterion and not relatable to any intelligible differentia one has to remember that an employer has a right to grant incentive for attracting better qualified persons to the service offered by the employer. If the incentive is devised with a view to offering inducement to those wavering whether to enter a certain service or, not, it is difficult to accept that such incentive should also be extended to those who have already entered service and have already taken full advantage of the benefit available at the time of entering service. In this case, it is clearly. made out that the benefit of enlarged period 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 postgraduate qualification. Those who were already in service and had that benefit once, cannot be heard to say that this new incentive should be retrospectively enforced so as to give them the same benefit. It is difficul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative. The next question is does this incentive divide a homogeneous class ? In the matter of incentive offered at the time of entering the service, there is no question of a homogeneous class. The new comers may become members of the class after being commissioned. They are outside the cadre before entrance. They do not belong to the class of existing members of the AMC. They derive the benefit of ante-dating simultaneously with becoming a member of AMC. They do not get any benefit denied to others after becoming the members as benefit of ante-dating is available at the time of appointment. There may be an enlargement of the cadre. There would be retirements. Recruitment and retirement are a continuous process. Those who are recruited at the relevant time will have to satisfy the conditions for recruitment then in force and would be entitled to the n benefits that may be available to the new entrants. If the principle canvassed for on behalf of the petitioners is taken to the logical end, it would lead to a startling result. Suppose a rule is now made that only persons with post graduate qualification would be qualified for being commissioned in AMC, can anyone contend that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that the note under the impugned amended Army Instruction is violative of Art. 14 or Art. 16. It was next contended that the Third Pay Commission recommended that doctors entering service of the Union of India with post-graduate qualifications should be suitably recompensated for the time spent in acquiring these qualifications. It was urged that this recommendation was implemented in Central Government Health Service and it is this recomtnendation which has promoted the Union of India to enlarge the period of ante-dating. It was urged that by limiting the benefit only to those who would be commissioned on or after April 1, 1971, the respondents are guilty of according discriminatory treatment in the matter of public employment, and it is violative of Article 16 of the Constitution. Reliance was placed on Purshotam Lal and others v. Union of India Anr (2)., wherein this Court held that when a Pay Commission snakes recommendations and the Government accepts the same, it is hound to implement the recommendations in respect of all Government employees. And if it does not implement the report regarding some employees only it commits a breach of Arts. 14 and 16 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ching the matter A from that angle, would not violate any constitutional mandate. The next contention is that if giving the petitioners benefit of enlarged period of ante-dating would unsettle a settled seniority list, the respondents have already given limited retrospectivity to the revised benefit by providing in the note to the impugned Army Instruction 78/78 that: The seniority officers who joined with PG qualifications during 1-112 years prior to 1.4.78 will be protected by grant of requisite ante-date so that they do not become junior to officers who have joined later with equivalent PG qualifications. It was urged that the provision in the note would benefit some of those who joined with PG qualifications even prior to April l, 1978 in a limited way, and thus its retrospective operation is implicit in the note. There is no merit in this contention. In fact the provision demonstrably establishes fair play in action. An illustration would expose the fallacy underlying the submission. 'A' joined with PG qualification and six months full time service on 31st March, 1978, 'B' joined with the same qualification and eligibility on April 2nd, 1978. Both are whol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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