1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8047 Of 2018 (@ C.A.Diary No.34810/2015)

COL. IVS GAHLOT ...APPELLANT(S)

VERSUS

UNION OF INDIA AND ORS.     ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

This appeal has been filed questioning the

judgment dated 20.07.2015 of Armed Forces Tribunal,

Principal Bench, Delhi by which O.A. No. 428/2013

filed by the appellant has been dismissed. The

appellant was commissioned in the army in Armed

Forces Medical Services (AFMC) on 06.04.1984,

received his promotion to the rank of Colonel with

effect from 01.01.2007. On 15.11.2011 the appellant

was considered for promotion to the rank of Brigadier

2

by Promotion Board (Medical) but could not be

selected for promotion. Appellant had filed a

statutory complaint against the non­promotion by the

Board. The competent authority duly examined the

statutory complaint and by decision dated 08.04.2013

granted partial redress by expunsion of the entire

assessment of the SRO in   CR 2010. On 19.06.2013,

appellant was considered for promotion by Review

Promotion Board (Medical) but could not be selected.

Being aggrieved by non­promotion, appellant filed

O.A.No.428/2013. The O.A. has been dismissed by the

Armed Forces Tribunal vide judgment dated 20.07.2015

aggrieved by said judgment this appeal has been

filed.

2. The appellant's case before the Tribunal was

that in his consideration for promotion he was denied

marks for Ph.D. degree in Anthropology (Science)

awarded to him by Berhampur University in 1998. He

further questions non granting of any mark for his

Post Graduate training qualification obtained from

G.S.V.M. Medical College, Kanpur and further no marks

3

were awarded on his Master degree in Personnel

Management in 2005 obtained from Pune University. The

Tribunal although accepted the claim of grant of mark

for Master degree in Personnel Management but

rejected the claim of the appellant for grant of any

mark for Ph.D. degree as well as Post Graduate

training in Pediatrics.  

3. Shri Yashank P. Adhyaru, learned senior advocate

appearing for the appellant contends that the Ph.D.

degree awarded by Berhampur University, which

university was competent to award Ph.D. degree, was

fully entitled to be awarded marks by Promotion Board

(Medical). He submits that the grant of Ph.D. degree

was not dependent on any recognition by Medical

Council of India. Relying on a letter dated

15.12.2017 addressed by Government of India to the

Director (Medical), Central Organisation ECHS, Delhi

Cantt., where it has been clarified that Medical

Council of India has informed that recognition of

Ph.D. degree does not come under the purview of

Medical Council of India, it is submitted that the

4

denial of marks to the appellant was illegal. He

further submits that Post Graduate training obtained

from a recognised medical institution by the

appellant was also entitled to be awarded marks. He

further submits that the promotion policy which was

earlier issued in the year 2004 could not have been

reviewed before five years as was contemplated by

policy dated 14.01.2004. The amendment of policy by

subsequent policy dated 22.05.2006 was not valid. He

submits that had the appellant been granted the marks

by Promotion Board (Medical) on the aforesaid two

counts he would have surely been promoted to the rank

of Brigadier. Non promotion had adversely affected

him which needs to be redressed by this Court.

4. Learned counsel appearing for Union of India

refuting the above submission contends that Ph.D.

degree obtained by appellant by Berhampur University

is not recognised by Medical Council of India as per

Medical Council of India Act, 1956, hence, no error

has been committed by the Promotion Board (Medical)

5

in not rewarding any marks to the appellant. It is

further contended that the Post Graduate Training

which is relied by the appellant is also not training

of any integrated course obtained by the appellant

after taking study leave, nor any certificate of

passing the training course has been filed by the

appellant to make him eligible to award of any mark

on the Post Graduate training. He submits that

promotion policy can be changed from time to time and

there was no error in modification of the promotion

policy in the year 2006.

5. We have considered the submissions of the

learned counsel for the parties and perused the

records.

6. The right to be considered for promotion in

accordance with the rules for promotion is right of

every officer and employee. In the present case there

is no denial that appellant was considered by

Promotion Board (Medical) on 15.11.2011 and

6

thereafter again by Review Promotion Board (Medical)

on 19.06.2013. Appellant's case is that had he been

granted one mark each for the Ph.D. degree and Post

Graduation training course, he could have been

definitely in the list of promoted officer and denial

of marks on aforesaid two counts was illegal.   The

Tribunal committed error in not considering the above

claim in accordance with law.

7. We need to first consider the promotion policy

under which the appellant's claim was considered. The

consideration of each officer has to be in accordance

with the promotion policy as in existence and

applicable to Armed Forces Officers (Medical). The

promotion policy dated 14.01.2004 is brought on

record as Annexure A­5.

8. In the present case, we are concerned with

paragraphs 11, 12 and last line of paragraph 18.

Paragraph 11 deals with allocation of marks on

different qualifications. Two year full time training

program is mentioned as item No.(d) in table of the

7

qualifications. It is useful to extract the aforesaid

item No.(d) of the aforesaid table:

“Qualifications: Officers in possession of the following academic will be awarded marks, as mentioned against each:­

1 Qualification Marks

(d) Two­year full time training program during study leave in India/Abroad in a medical field from an institution/university recognized by a statutory body

2

”

9. Paragraph 12 refers to various academic

achievements which includes Doctor of

Philosophy(Ph.D.) which is to the following effect:

“12. Marks will be awarded for possessing any one of the academic achievements as given below:­

(a) Master of Chirurgery(M.Ch.)        ­3

(b) Doctorate in Medicine(DM)          ­3

(c) Doctor of Philosophy(Ph.D)         ­3

(d) Diplomate of National  Board       ­3    (DNB)(Super­Speciality subject)

(e) Two years training during study    ­3   leave in a specialized field

8

 of medical sciences/certificate        of training from an institute/

  university recognized by a    statutory body.

Note: ­ If an officer is having more than one of the above­mentioned qualifications, marks for only one qualification will be credited.”

10. The above policy was issued on 14.01.2004 and in

paragraph 18 following was stipulated  "the policy

will be reviewed after five years".

11. The above policy was amended by Order dated

22.05.2006 heading of which itself mentioned

"amendment to promotion policy dated 14th  January

2004:AFMS Officers.”

12. Amendments were made in paragraph 11 and

paragraph 12 which are relevant in the present case.

For existing paragraph 11, new paragraph 11 was

substituted which provided in clause (d) that for

"two­year full time structured training program

during study leave in India/Abroad in a medical field

9

from an institution/university recognized by a

statutory body, one mark shall be allocated. For

existing paragraph 12, new paragraph was substituted

which is to the following effect:

“12. Officers in possession of any one of the following academic achievements will be awarded one (1) mark.

(a) Master of Chirugury(M.Ch) recognized by MCI

(b) Doctorate in Medicine(DM) recognized by MCI

(c) Doctor of Philosphy(Ph.D) recognized by MCI

(d) Diplomate of National Board(DNB)       (Super­speciality subject)”

13. At the outset, we may consider the submission

raised by the appellant that since the policy dated

14.01.2004 contemplated that the policy will be

reviewed after five years, there was no occasion for

the review of the policy after two years only. There

cannot be any dispute that it is the authority of the

employer to frame promotion policy for promotion of

its officers and employees. When an employer has

power to frame policy it has inherent power to change

10

the policy from time to time. This Court in  Hardev

Singh Vs. Union of India and another, (2011) 10 SCC

121 laid down that it is always open to an employer

to change its policy in relation to giving promotion

to the employees. The above case was also a case of

promotion of officers of Indian Army. A new promotion

policy dated 31.12.2008 with regard to promotion was

issued changing the criteria for promotion where in

place of value judgment weightage were to be given on

different aspects, repelling the challenge to new

policy following was laid down in paragraphs 25 & 26,

which is to the following effect:

“25. In our opinion, it is always open to an employer to change its policy in relation to giving promotion to the employees. This Court would normally not interfere in such policy decisions. We would like to quote the decision of this Court  in  Virender  S.Hooda Vs.  State  of Haryana, (1999) 3 SCC 696  where this Court had held in para 4 of the judgment that:

 "4....When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time

11

and so long as these instructions are not contrary to the rules, the respondents ought to follow the same.”

26.Similarly, in  Balco Employees' Union Vs. Union of India, (2002) 2 SCC 333  it has been held that a court cannot strike down a policy decision taken by the Government merely because it feels that another policy would have been fairer or wiser or more scientific or logical. It is not within the domain of the court to weigh the pros and cons of the policy or to test the degree of its beneficial or equitable disposition.”

14. The stipulation in the policy dated 14.01.2004

that policy will be reviewed after five years was in

no manner a  fetter on right  of the Government to

review the policy as and when occasion arose. There

was no statutory restriction on the Government from

reviewing the policy even before five years. We fully

approve the view of the Tribunal that the policy

dated 14.01.2004 could have rightly been amended in

the year 2006.

15. Furthermore, the earlier policy was issued on

14.01.2004 and in accordance with the appellant, it

could have been reviewed only after five years.

12

Admittedly the appellant came for consideration by

the Promotion Board on 15.11.2011 i.e. much after

five years from the issue of the policy on

14.01.2004. At the time when appellant was considered

the amendment dated 22.05.2006 was in force. An

officer has to be considered in accordance with the

policy as prevalent at the time of his consideration.

Hence, we do not find any error in consideration of

the claim of the appellant as per the amended policy

dated 22.05.2006.

16. Now, we come to the claim of the appellant on the

basis of Ph.D. degree obtained from Berhampur

University in Anthropology (Science). Berhampur

University like any other university as per

University Grants Commission Act, 1956 was fully

competent to institute any degree including Ph.D.

degree. In the policy which was issued on 14.01.2004,

on any Ph.D. degree a candidate was eligible for

grant of three marks. Amendment made by Order dated

22.05.2006 the eligibility has been restricted to

"Doctor of Philosophy(Ph.D.) recognised by Medical

13

Council of India". No exception can be taken to the

amendment by which only those Ph.D. degrees are

eligible for one mark which are recognised by Medical

Council of India.   There is a rational for

restricting the award of marks only on those Ph.D.

degrees which are recognised by the Medical Council

of India.   Medical Council of India recognises

medical degrees awarded by different universities and

institutions under the Medical Council of India Act,

1956.   The Promotion Policy dated 22.05.2006 is for

promoting officers belonging to Armed Forces Medical

Services (AFMS), hence restricting the award of marks

to those Ph.D., which have been recognised by Medical

Council of India has object and purpose.     

17. Learned counsel for the appellant had submitted

that the Medical Council of India does not recognise

any Ph.D. degree for which he has placed reliance on

the letter dated 15.12.2017 addressed by the

Government of India, Ministry of Health & Family

Welfare to the Director (Medical), Central

Organisation ECHS, Delhi Cantt. This Court on

14

06.04.2018 directed the respondent to obtain

instructions with regard to the aforesaid letter

dated 15.12.2017. By letter dated 15.12.2017

addressed to the appellant, a copy of reply received

from the Medical Council of India dated 07.12.2017

was forwarded. A Joint Secretary to Medical Council

of India issued the letter dated 07.12.2017 which is

to the following effect:

“The Secretary to the Govt. of India, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi

Kind Atten:­Sh.D.V.K.Rao, Under Secretary(ME­I) Subject:  Recognition of Ph.D. Degree ­request of Col. Indra Veer Singh Gahlot – Regarding

Sir,  

 Please refer to your letter No.Z.20015/15/2015­ME­I(FST143472) dated 01.11.2017, on the subject noted above.

    In this regard, this is to inform you that the matter with regard to recognition of Ph.D. Degree does not come under the purview of Medical Council of India.

                        Yours faithfully Sd/­x­x­x­x­x

15

(Dr. Rajendra Wabale) Joint Secretary”

18. Learned counsel for the respondent has referred

to Indian Medical Council Act, 1956. Section 11 of

the Medical Council of India Act pertains to

recognition of medical qualifications granted by

universities or medical institutions in India.

Section 11 is as follows:

“11.Recognition of medical qualifications granted by Universities or medical institutions in India.­

(1) The medical qualifications granted by any University or medical insitution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Act.

(2) Any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be

16

a recognised medical qualification only when granted after a specified date.”

19. Section 11  of the Act refers to the First

Schedule. The heading of the First Schedule is

"recognized medical qualifications granted by

universities or medical institutions in India". The

First Schedule contains list of various universities

or medical institutions of India which contains a

column "recognised medical qualifications". Berhampur

University is also one of the universities mentioned

in the Schedule. The perusal of Schedule A indicates

that although various medical degrees have been

mentioned in the column "recognised medical

qualifications" but qualification of Ph.D. in

Anthropology(Science) is not included in the

recognised medical qualifications for Berhampur

University.  

20. Learned counsel for the appellant referring to

the letter dated 15.12.2017 read with letter dated

07.12.2017 of the Medical Council of India contends

17

that since Medical Council of India does not

recognise Ph.D. Degree, Ph.D. Degree awarded by

Berhampur University could not have been ignored.

Section 11 of the Medical Council of India Act, 1956,

as noticed above, provides for recognition of medical

qualifications granted by universities or medical

institutions in India in First Schedule to the Act

contains list of universities and medical

institutions. Berhampur University is also one of the

universities, which finds place in the First

Schedule. Various medical courses of Berhampur

University find place in the First Schedule but there

is no mention of any Ph.D. degree.   The list of

recognised medical courses of Berhampur University is

as follows:­

University or Medical Institution

Recognised Medical Qualification  

Abbreviation for Registration

Berhampur University

Bachelor of Medicine and Bachelor of Surgery

Diploma in Orthopaedics

M.B.B.S., Berhampur

D.Orth., Berhampur

18

Diploma in Child Health

Doctor of Medicine (Physiology)

Master of Surgery (Orthopaedics)

Doctor of Medicine (Paediatrics)

Master of Surgery (General Surgery)

Doctor of Medicine (General Medicine)

Doctor of Medicine (Pharmacology)

Doctor of Medicine (Pathology)

Master of Surgery (Anatomy)

Master of Surgery (E.N.T.)

Doctor of Medicine (Forensic Medicine and Toxicology)

D.C.H., Berhampur

M.D. (Physiology)

M.S. (Orthopaedics)

M.D. (Paediatrics)

M.S. (General Surgery)

M.D. (General Medicine)

M.D. (Pharmacology)

M.D. (Pathology)

M.S. (Anatomy)

M.S. (E.N.T.)

M.D. (Forensic, Medicine and Toxicology)

19

Doctor of Medicine (Social and Preventive Medicine)

Doctor of Medicine (Anaesthesiology)

Doctor of Medicine (Obstetrics and Gynaecology)

Doctor of Medicine (Microbiology)

Doctor of Medicine (Dermatology,

M.D. (S.P.M.) (M.K.C.G.) Medical College, Berhampur granted from 1­12­1974).

M.D. (Anaes.)

M.D. (Obst. And Gynae) (This shall be a recognised qualification when granted in or after 1975)

M.D. (Microbiology) (This shall be a recognized medical qualification when granted by Berhampur University in respect of the students being trained at M.K.C.G. Medical College, Berhampur, Orissa on or after 1990.)

M.D. (D.V.L.) (This shall be a recognized

20

Venerology and Leprosy)

medical qualification when granted by Berhampur University in respect of students being trained at M.K.C.G. Medical College, Berhampur, Orissa on or after 1991.)

21. Whereas with regard to various medical

institutions like All India Institute of Medical

Sciences and Sree Chitra Thirunal Institute for

Medical Science and Technology, Thiruvananthapura,

there are mention of various Ph.D. courses.   It is

useful to refer to relevant extract from First

Schedule with regard to the few Ph.D. courses

recognised in All India Institute of Medical Sciences

and Sree Chitra Thirunal Institute for Medical

Science and Technology, Thiruvananthapura, which are

as follows:­

21

University or Medical Institution

Recognised Medical Qualification  

Abbreviation for Registration

All India Institute of Medical Sciences

Doctor of Philosophy (Anatomy)

Doctor of Philosophy (Biochemistry)

Doctor of Philosophy (Microbiology)

Doctor of Philosophy (Pathology)

Doctor of Philosophy (Physiology)

and 38 other fields.

Ph.D. (Anat.)

Ph.D. (Biochem.)

Ph.D. (Micro.)

Ph.D. (Patho.)

Ph.D. (Physiology)

Sree Chitra Thirunal Institute for Medical Science and Technology, Thiruvananthapura

Doctor of Philosophy (Biochemistry)

Doctor of Philosophy (Microbiology)

Doctor of Philosophy (Pathology)

Ph.D. (Biochem.)

Ph.D. (Micro.)

Ph.D. (Patho.)

22.  There being Ph.D. degree courses recognized for

22

medical institutions in the First Schedule of the

Medical Council of India Act, 1956, we cannot find

any fault in the restriction imposed by policy dated

22.05.2006 restricting award of marks only to the

Ph.D. degrees recognized by Medical Council of India.

Coming to the letter dated 15.12.2017 which in turn

refers to the letter dated 07.12.2017 of Medical

Council of India, the letter mentions that

recognition of Ph.D. degree does not come under the

purview of Medical Council of India.   The Medical

Council of India in its First Schedule recognizes

medical courses which also contains various Ph.D.

courses. It may be true that Ph.D. degree awarded to

a candidate needs no recognition from the Medical

Council of India but for the purposes of this case,

the marks can be claimed by a candidate in promotion

only when the Ph.D. course is recognized by Medical

Council of India. Thus the letter dated

15.12.2017/07.12.2017 cannot help the appellant in

the present case. Moreover, any communication issued

by Joint Secretary of Medical Council of India cannot

23

be given any precedence on the clear statutory

provisions contained in Section 11 read with First

Schedule of Medical Council of India Act, 1956.  

23. Now, we come to the Post Graduate training

program on which the appellant is also claiming

allocation of marks.   Two year full time training

program to be eligible for award of one mark required

to fulfill following conditions:

a)    full time structured training program.

b)   during study leave in India/abroad.

c) in a medical field from an

institution/university     recognised

by statutory body.

24. The appellant has filed certificate as Annexure

A­1 dated 11.12.1995 issued by Professor and Head,

Department of Pediatrics, G.S.V.M. Medical College,

Kanpur, which is to the following effect:

“         Department of Pediatrics

Children's hospital: G.S.V.M. Medical College: Kanpur – 208002

24

                        Dated:11.12.1995

             CERTIFICATE

Certified that Indra Veer Singh Gahlot had been working in Pediatrics from March, 1991 till November, 1993. The Department of pediatrics is recognized for M.D. Pediatrics and Diploma Courses. The department is maintaining student­ teacher ratio of 1:1 including Dr. Indra Veer Singh Gahlot.  During the period of stay of Dr. Gahlot, Prof.G.P.Mathur was the Head of the Department.

     During the period of his stay, Dr. Gahlot was doing emergency duties independently. He had chances to perform exchange­blood transfusions in the premature Baby Nursery. He also participated in the P.G.teaching programme.

Sd/­(Illegible) Sarla Mathur Prof.& Head”

25. The above certificate does not indicate that

appellant completed full time structured training

programme.

26. The appellant contended that he was granted

permission to attend the training program but there

25

is no material to indicate that he was granted two

years study leave to join two years structured

training program. The certificate dated 11.12.1995 as

claimed by appellant does not fulfill the essential

conditions as laid down in paragraph 11 of the Order

dated 22.05.2006 to make appellant eligible for one

mark. We thus do not find any error in the Promotion

Board (Medical) not allocating one mark for two years

training program. Armed Forces Tribunal did not

commit any error in rejecting the above claim also.

We thus do not find any error in the judgment of

Armed Forces Tribunal warranting interference by this

Court in exercise of jurisdiction under Article 136

of the Constitution of India.

27. The Civil Appeal is dismissed.

..........................J. ( A.K. SIKRI )

..........................J.     ( ASHOK BHUSHAN )

NEW DELHI, AUGUST 06,2018.