Indian legal tangle a blast from the past

Why should the 50% of military recruits be given a special weightage? Should not all entrants into the DSS (Deputy Superintending Surveyor) 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 Engineers. They are commissioned officers with service of 3 to 6 years before coming into the Survey which needs, not raw engineers, but men 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."
Posted by Navdeep / Maj Navdeep Singh at 4:54 AM 16 comments

False statements are made by the Union of India by misleading their own counsel and then unethical appeals are filed if the case still goes against the Govt. The observations of the Hon’ble Supreme Court in Urban Improvement Trust Bikaner Vs Mohan Lal on 30 October 2009 were apt :

“It is a matter of concern that such frivolous and unjust litigation by governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice”

Even way back in 1973, the Hon’ble Supreme Court had this to say in Dilbagh Jarry Vs UOI while quoting the Kerala High Court :

“The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.”

That was 1973, this is 2010, but sadly, the story remains the same. Mr Moily, are you there???
Posted by Navdeep / Maj Navdeep Singh