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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3798 OF 2015

Union of India and Ors.                                       … Appellants

            Versus

K.P. Singh and Anr.       … Respondents  

WITH

C.A.No.3799/2015 AND W.P. NO. 957 OF 2014

J U D G M E N T

A.M. KHANWILKAR, J.

The respondents in the aforementioned two appeals and the

petitioner in the companion writ petition served as officers of Army

Medical Corps, a Medical Service, under the Government of India,

with more than 20 years of commissioned/Group-A gazette service.

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The Army Medical Corps is a cadre of Doctors serving in the Army,

Navy and Air Force.  It is an organized medical service of Central

Government.   

2. The respondents  in  the  two appeals  approached the  Armed

Forces Tribunal at  New Delhi,  by way of  an Original  Application

contending  that  they  were  entitled  to  receive  Dynamic  Assured

Career Progression as per the DACP Scheme, as approved by the

Central  Government.   Even the writ  petitioner in the companion

writ petition has sought similar relief. He has prayed for a direction

against  the Central  Government to implement the DACP scheme

even  in  relation  to  the  medical  officers/doctors  who  are

commissioned officers of the Armed Forces.   

3. An Original Application seeking similar relief was filed by one

Col. Sanjeev Sehgal1 . The same was allowed by the Tribunal vide

order dated 18th July 2011.  In that case, the Tribunal had noted

the stand of the department (appellants) that the matter regarding

1

 O.A. No. 488 of 2011 before the Armed Forces Tribunal at Chandigarh

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implementation of DACP scheme qua the doctors in AMC was still

under  examination.  Further,  the  appropriate  Authority  was

expected to take a decision in that behalf after examining the issue

in due course.  The Tribunal, however, proceeded to dispose of the

said Original Application in the following terms:  

“Heard the learned counsel for the both the parties and perused the documents including Annexures 1,2 and 3.  

There is no denial that the DACP Scheme is equally applicable to AMC Cadre.  The scheme has already been implemented  in  several  Departments.   However,  the same has not been implemented in the Armed Forces for the  reasons  best  known  to  them  and  the  matter  is hinging for  the last  about  three years.   This is  clearly detrimental to the interest of the AMC officers.  It ought to have been implemented much earlier by the Ministry of Defence and the concerned authorities of Armed Forces.

In  the facts  and circumstances,  the  Respondents are directed to issue instructions for the implementation of the DACP Scheme in the light of  Annexures A-1 A-2 and  A-3  attached  with  the  application  within  three months from the date of receipt of copy of this order.  

With  the  above  direction,  this  application  stands disposed of”.   

This decision became final  consequent to  the dismissal  of  Civil

Appeal filed by the Department before this Court.

4. Relying  on  the  said  decision,  the  Tribunal  allowed  the  two

Original Applications filed by the respondents in the aforementioned

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appeals.  The  Tribunal  also  directed  the  department  to  issue

instructions for implementation of the DACP Scheme and by placing

the concerned respondents to the 4th financial upgradation of grade

pay  of  Rs.  10,000/-  under  the  DACP  Scheme.   The  original

application filed by the respondents in C.A. No. 3798 of 2015, was

allowed by the Armed Forces Tribunal at New Delhi, being O.A. 178

of 2014, on 17th April, 2014.  Similarly, the Original Application No.

108 of 2014 filed by the respondents in C.A. No. 3799 of 2015  was

allowed  vide  order  dated   9th April,  2014.  The  department  has

assailed these orders in the respective appeals.  

5.  When the present appeals were pending for consideration, the

petitioner  in  companion  W.P.  No.  957  of  2014  approached  this

Court praying for the following relief:    

i. “Issue  a  mandamus  for  direction  to  the  respondents thereby  to  implement  the  recommendations  of  6th Pay Commission  from  the  date  of  issuance  of  Official Memorandum   (OM)  dated  29.10.2008  issued  by  the Government  of  India,  Ministry  of  Health  and  Family Welfare,  CHS  division,  in  Army  Medical  Corps  (AMC) within a specific time;

ii. Pass any such other order(s) as deemed fit and proper to secure the ends of justice”.

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6. It  is  an  admitted  position  that  the  decision  of  the  Armed

Forces Tribunal,  Chandigarh Bench in the  case of  Col.  Sanjeev

Sehgal  (supra) was  assailed  by  the  appellants  by  way  of  Civil

Appeal D.No. 14342 of 2013 before this Court.  That was, however,

summarily  dismissed  at  the  preliminary  hearing  stage  on  23rd

September, 2013 by the Bench presided by Justice T.S. Thakur  (as

he then was).  The order reads thus:

“Heard.

Apart  from  the  fact  that  there  is  an  inordinate delay  of  589  days  in  the  filing  of  this  application  for grant of leave, we see no substantial question of law of general/public  importance  arises  for  our  consideration. The prayer  for  leave to  appeal  is  accordingly  declined and the application dismissed”.  

7. Nonetheless the present appeals and writ petition came to be

admitted on 13th April, 2015 after due consideration, by a Bench of

two learned Judges of which Justice T.S. Thakur (as he then was)

was a member.  Further, when the appeals and writ petition were

pending and heard on different dates, the appellants were granted

liberty to file further affidavits.  Keeping in mind the stand taken by

the department, this Court (presided by Chief Justice T.S.Thakur as

he then was) vide order dated 11th December, 2015 permitted the

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appropriate  Authority  to  revisit  the  matter  afresh  and  take  a

decision as may be advised. Indeed, that was without prejudice to

the rights and contentions of the parties in the present proceedings.

Pursuant to the liberty granted by this Court, a formal decision has

been  taken  at  the  highest  level  in  the  Ministry  of  Defence,

Government  of  India  which  has  been  communicated  to  the

Chairman, Chiefs of Staff Committee (COSC) vide letter dated 13 th

January, 2016.  We deem it apposite to reproduce the said letter in

its entirety inasmuch as the department has reiterated the same

stand in the two appeals as also to oppose the writ petition.  The

same reads thus:

“  Annexure A-3

No. 10/1/2010-D(Medical) Government of India Ministry of Defence

Sena Bhavan, New Delhi-110011 Dated the 13th January, 2016

To, The Chairman, Chiefs of Staff Committee (COSC), COSC Secretariat, 263D, South Block, New Delhi.

Subject:  Recommendations  of  the COSC regarding Dynamic Assured  Career  Progression  (DACP)  Scheme  in respect of Defence Forces Personnel.

Sir,

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I  am  directed  to  refer  to  the  letter  No.C/7026/6tt CPC/Vol. III dated 25.8.2015 of the Chairman, Chiefs of Staff Committee (COSC) on the above noted subject, and to say that as requested in the aforesaid letter, the COSC was given an opportunity to present the case of  the Services for grant  of DACP Scheme to  all  Defence  Forces  Officers  alongwith  the Armed  Forces  Medical  Services  (AFMS)  Officers  before  the Hon’ble  Raksha  Mantri  on  08.01.2016.  In  the  presentation made by the COSC, it was stated that the DACP Scheme, as recommended  by  the  6th Central  Pay  Commission  (CPC)  in para 3.6 of its report, is applicable to AFMS doctors also. The COSC  also  referred  to  para  12  of  the  Resolution No.1/1/2008-IC  dated  29.08.2008,  wherein,  it  has  been stated that  the  DACP Scheme for  doctors  will  be  extended upto Senior Administrative Grade (SAG) for Medical Doctors having  20  years  of  regular  service,  or  7  years  of  regular service  in  the  Non  Functional  Selection  Grade  (NFSG)  of Rs.8700/- grade pay in PB-4 and that all the medical doctors whether belonging to organized services or holding isolated posts will be covered by the DACP Scheme.  2. During the course of the presentation, the COSC was informed that since separate recommendations were made by the 6th CPC for Defence Forces Personnel, the recommendation made in para 3.6 is not applicable to the AFMS doctors as they are part  and parcel  of  the Defence Forces.  The COSC was also informed that the Resolution dated 29.08.2008 of the  Ministry  of  Finance,  Department  of  Expenditure  is applicable only in respect of civilian government employees, as  clearly  stated  in  para  1  of  the  said  Resolution  and therefore,  the  recommendation  made  in  para  12  thereof  is applicable in respect of civilian doctors and not in respect of the AFMS doctors.  3. Further,  the  relevant  aspects  for  grant  of  DACP  to Armed Forces  Medical  Services  (AFMS)  officers,  as  also  for grant  of  same  Grade  Pay  to  all  Defence  Officers,  as recommended  by  the  COSC  have  also  been  considered carefully.  4. Upon  such  consideration,  the  first  significant  aspect which  has  clearly  emerged  is  that  the  DACP  is  not  at  all applicable  to  Commissioned  Officers  serving  as  doctors  in AFMS Cadre,  for  more  than one  reason which  are  set  out herein below:

(i) As  per  existing  Govt.  orders  commissioned officers  serving  as  doctors  belonging  to  AFMS  constitute  a separate class in themselves. They have a separate treatment

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with regard to recruitment procedure, appointment, terms and conditions  of  their  employment  including  promotions,  pay structure etc. as contained in AI 74/1976 issued by the Govt. of  India,  Ministry  of  Defence.  Being  commissioned  officers they are employed in the Indian Army, the Indian Air Force and the Indian Navy, i.e., Army, Navy & Air Force. They are unlike other civilian doctors serving in Directorate General of Armed Forces Medical Services (DGAFMS), who do not become commissioned officers  and for  whom separate  Govt.  orders exist regarding their terms and conditions of service.  

(ii) Similarly,  the  procedure  of  appointment,  terms and  conditions  of  employment  including  promotions,  pay structure  etc.  for  other  civilian  doctors  appointed  in  other Departments/Ministries  of  the  Govt.  of  India  are  entirely different.  These  civilian  doctors  form/constitute  a  separate class.  Their  service  conditions  etc.  are  dealt  with  by  the respective Ministries like Ministry of Health & Family Welfare, Ministry  of  Railways,  Ministry  of  Home Affairs  in  cases  of doctors  in  Para  Military  Forces  like  Border  Security  Force, Central Reserve Police Force etc. and are governed by CCS Rules etc.  

(iii) Therefore, doctors who are commissioned officers in AFMS in the Indian Army,  the Indian Air  Force and the Indian Navy form a separate class.  The successive Central Pay Commissions have also dealt with them separately, in the recommendations  made  by  them  to  Govt.  of  India.  The recommendations  are  also  made  by  the  Central  Pay Commissions  providing  separately  for  the  civilian  doctors dealt with by other Ministries/Departments such as Ministry of Health & FW. Ministry of Railways, etc.  

(iv) In  the  present  case,  the  doctors  constituting AFMS who are Commissioned Officers in the Indian Army, the Indian Air Force and the Indian Nave are to be governed by the  resolution/decision  taken  by  the  Ministry  of  Defence, Govt.  of  India  on  30.08.2008  and  not  by  the resolution/decision  dated  29.08.2008  by  the  Ministry  of Finance  dealing  with  all  civilian  Government  servants including doctors who are not  commissioned officers in the Indian Army, the Indian Air Force and the Indian Navy.  (v) The  existing  sanctioned  hierarchy  of  promotion  for doctors joining the Indian Army, the Indian Air Force and the Indian Navy as commissioned officers is as under: (a) Captain/Flight Lieutenant/Lieutenant (b) Major/Squadron Leader/Lieutenant Commander (c) Lieutenant Colonel/Wing Commander/Commander

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(d) Colonel/Group Captain/Captain(Navy) (e) Brigadier/Air Commodore/Commodore(Navy) (f) Major General/Air Vice Marshal/Rear Admiral (g) Lieutenant General/Air Marshal/Vice Admiral

(vi) As per existing Govt. orders issued by the Govt. of  India,  Ministry  of  Defence,  promotion  in  Army  Medical Corps(AMC) upto the rank of Captain, Major and Lt. Col and their equivalents in the Indian Navy and the Indian Air Force are by time scale subject to meeting the laid down criteria and substantive  promotion  to  the  ranks  of  Colonel,  Brigadier, Major General and Lieutenant General and their equivalents in the Indian Navy and Indian Air Force will be by ‘selection’ to fill the vacancies authorized from time to time subject to the officer being found fit in all respects by appropriate selection board as approved by the competent authority.  

(vii) In  terms  of  para  10  of  AI  74/1976,  officers granted  permanent  commission  in  the  Army Medical  Corps will receive pay and allowances at such rates and under such conditions  as  are  laid  down  in  Pay  and  Allowances Regulations for Officer of the Army, as amended from time to time by the Ministry of Defence, Govt. of India in consultation with Department of Expenditure, Ministry of Finance.  

(viii) It  is  evident  from  record  that  before  the  5th Central Pay Commission, doctors belonging to Central Health Service, Railways etc. had raised a grievance of stagnation, lack of promotional avenues etc. while dealing with terms and conditions  of  service  and  pay  and  allowances  of  doctors serving in Central Health Service (CHS), the Railway Health Service and the Indian Ordnance Factories Services, etc. the 5th Central Pay Commission noted that there was stagnation and lack of proper promotional avenues for such doctors in the aforesaid three services and as such, it recommended DACP for  them.  Therefore,  for  the  benefit  of  doctors  belonging  to CHS, Railways, Indian Ordnance Factories Services-the DACP was recommended by the CPC only for the civilian doctors governed by the Ministry of Health & Family Welfare etc. in that category. This benefit was not extended to commissioned officers  serving  as  doctors  in  the  three  Services  being governed  by  separate  norms  including  pay  scales, promotions, etc. laid down by the Ministry of Defence.  

(ix) It is also evident from record that the Ministry of Defence, Government of India, vide letter dated 28.10.2005, conveyed  the  sanction  of  the  President  to  the  reckonable commissioned  service  for  promotion  to  the  rank  lieutenant Colonel  and  equivalent  as  11  years  and  for  promotion  to

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Colonel  (Time  Scale)  as  24  years.  Thus,  this  letter  was directed  towards  restructuring  of  Non-Select  Ranks  in commissioned officers cadre of AFMS.  

(x) The  above  mentioned  order  dated  28.10.2005 was aimed at granting faster promotions to the commissioned officers doctors constituting a separate class. The difference in promotional  avenues  and  hierarchical  cadre,  pay  and allowances and other benefits of AMC officers vis-à-vis civilian doctors is tabulated and shown as below:

Doctors  of  AFMS as  Commissioned officers  in  the  Indian  Army,  the Indian  Air  Force  and  the  Indian Navy

Civilian Doctors under the Central Health Scheme etc.

Governing resolution issued  by the  Govt.  of India

Ministry  of  Defence  (MoD)  vide No.1(3)/2008-D  (Pay/Services) dated  30.8.2008

Ministry  of  Health  & Family  Welfare  dated 30.10.2008  issued pursuant  to  Ministry  of Finance  resolution  dated 29.8.2008

Service conditions

AFMS  doctors  are  Commissioned Officers in Military Uniform and are therefore  part  of  Armed Forces.  All the service conditions in the matter of  pay and allowances and service benefits  applicable  to  other  army personnel  are  applicable  to  AFMS doctors.

Government  by  different set of terms and conditions of  service  as  applicable under the applicable rules such  as  Central  Civil Services (CCS) Rules etc. in respective Health services.  

Grade  Pay (GP)

…..Rs.6,100/- Rs.6,600/- Rs.8,000/- Rs.8,700/- Rs.10,000/- Rs.12,000/-

After  implementing  the DACP  scheme  Rs.5,400/- ….. Rs.6,600/- Rs.7,600/-  ….. Rs.10,000/-

Promotional Avenue/hier archy

(i) Captain/Flight Lieutenant/Lieutenant  

(ii) Major/Squadron Leader/Lieutenant Commander

(iii) Lieutenant  Colonel/Wing Commander/Commander

(iv) Colonel/Group Captain/Captain (Navy)

(v) Brigadier/Air Commodore/Commodore (Navy)

After  grant  of  DACP promotion  avenues  of civilian doctors are:  

(i) Medical Officers (ii) Senior  Medical

Officers (iii) Chief  Medical

Officer (iv) Chief  Medical

Officer (NFSG) (v) SAG

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(vi) Major  General/Air  Vice Marshal/Rear Admiral

(vii) Lieutenant  General/Air Marshal/Vice Admiral

(viii) DGAFMS Other service benefits

Military Service Pay @ Rest. 6000/- pm for all officers up to the rank of Brig in addition to Grade Pay, Outfit allowance,  Kit  Maintenance Allowance,  Ration  Money  decided from time to time  

No such allowance/benefit is  available  to  civilian doctors  dealt  with  by  the decisions of the Ministry of Health & Family Welfare.  

(xi) It  is  evident  from  record  that  Armed  Forces Personnel  (Commissioned Officers)  and Civilian Government employees  are  two  different  classes,  the  Central  Pay Commissions  (CPC)  make  separate  recommendations  for them. The 6th CPC also made separate recommendations with regard to ‘Pay Scales of Defence Forces Personnel’ (Chapter 2.3)  and  ‘Allowances  &  Conditions  of  service  of  Defence Forces  Personnel’  (Chapter  4.10).  Therefore,  when  the decisions was to be taken by the Govt. of India, Ministry of Defence with regard to recommendations of  6th Central Pay Commission regarding grant of pay and allowances etc. to the defence personnel, the draft resolution was examined by the Department of Expenditure, Ministry of Finance.  

(xii) A note was issued by the Department of Expenditure on 29.08.2008  making  it  abundantly  clear  that  the recommendation of Dynamic ACP has nothing to do with the doctors inducted as commissioned officers in the Indian Army, the  Indian  Air  Force  and  the  Indian  Navy  by,  inter  alia, observing as under:

“Ministry  of  Defence  may  please  refer  to  Draft  Resolution regarding  implementation  of  the  Government’s  decision  on Pay  Commission’s  recommendations  relating  to  Officers  of Defence Forces for vetting before issue.  

2. A  point  (ix)  has  been  added  in  the  Draft  Resolution regarding the enhanced Grade Pay for middle level  officers (from Captain/Equ. To Brigadier/equ.).  

3. In the annexure to  the Resolution where revised pay scales  have  been  indicated,  for  the  sake  of  clarity  and understanding,  MOD  may  like  to  put  two  tables simultaneously  one  containing  the  recommendations  of  the

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Sixth  CPC  and  the  other  showing  final  decision  of  the Government in this regard. Similar tables have been put in this  Ministry’s  resolution  relating  to  civilian  Government employees.  

4. In the Annexure to the Resolution relating to Allowances concessions & benefits and conditions of service of Defence Forces personnel, against item 8, point no.(ii) relating to grant of Dynamic ACP to doctors has been deleted, as the same is not applicable to doctors in the Defence Forces…….”

(xiii) The  above-mentioned  unambiguous  position incorporated in para 4 of the note dated 29.08.2008 of the Department  of  Expenditure to  the effect  that  DACP Scheme has  nothing  to  do  and  is  not  applicable  to  doctors (Commissioned Officers)  in the Indian Army,  the Indian Air Force  and  the  Indian  Navy,  and  was  accordingly  not mentioned in the eventual Resolution issued by the Ministry of Defence,  Govt.  of  India  on  30.08.2008  implementing  the recommendations of the 6th CPC.  

(xiv) Therefore,  as  in  the  past,  two  separate  Resolutions were issued by the Government conveying the decisions on the  recommendations  of  the  6th CPC.  One  Resolution  was issued by the Ministry of Finance in respect of the Civilian employees vide resolution No.1/1/2008-IC dated 29.8.2008 and another Resolution was issued by the Ministry of Defence in  respect  of  Armed  Forces  Personnel  (including  AFMS Commissioned Officers) vide No.1(30)/2008-D (Pay/Services) dated 30.08.2008.  

(xv) The  civilian  doctors  including  civilian  doctors  in  the AFMS (other than Commissioned Officers) are governed by the Resolution  dated  29.08.2008  issued  by  the  Ministry  of Finance, Dept. of Expenditure read with the Circular by the Ministry of Health & Family Welfare dated 30.10.2008.  

(xvi) As per  Govt.  orders the Resolution dated 29.08.2008 deals only with the civilian employees of the Central Govt. in Groups  ‘A’,  ‘B’,  ‘C’,  ‘D’  including  civilian  doctors  in  the DGAFMS  (other  than  Commissioned  Officers).  The  DACP Scheme for doctors in the Resolution dated 29.08.2008 dealt in para 12 is  only with regard to  civilian doctors including civilian  doctors  in  the  DGAFMS  (other  than  Commissioned Officers).

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(xvii) The  Resolution  of  the  Ministry  of  Defence  dated 30.08.2008 is  for  Defence  personnel  including  doctors  who are appointed as ‘Commissioned Officers’. Para 5 of the said resolution  of  the  Ministry  of  Defence  dated  30.08.2008  is reproduced as under;-

“…..5.The  decisions  taken  by  the  Government accordingly on various recommendations of the Commission in respect  of  officers  of  Armed  Forces  are  indicated  in  the statement at  Annexure-I to this resolution. The existing pay scales of  Officers of  the Armed Forces are indicated in the Statement at Annexure-II…..”

(xviii) Item No.7 of Annexure-I and Item No.7 of Annexure-IB appended to the Resolution of the Ministry of Defence dated 30.08.2008 providing separately for the pay for AMC Officers and  also  payment  of  various  allowances  for  the  doctors working as commissioned officers in the Armed Forces.  

(xix) it is also clear from the recommendations made by the 6th CPC in para 3.6.7 of  its Report  that  ‘the DACP Scheme recommended  by  5”  Central  Pay  Commission  for  different streams of doctors should be extended to all doctors including those working in isolated posts. The promotions under DACP for  other  categories  of  doctors  will  be  guided by the  same conditions as applied in case of doctors working in Central Health  Scheme”  is  in  respect  of  the  Civilian  Government employees. Accordingly, the same was mentioned in para 12 of the Resolution dated 29.08.2008 issued by the Deptt. Of Expenditure, Ministry of Finance which was in respect of the Civilian employees. In pursuance of this Resolution of Deptt. Of Expenditure, Ministry of Finance, the Ministry of Health & Family  Welfare  (M/o  H&FW)  vide  their  O.M. No.A.45012/2/2008-CHS.V dated 29.10.2008 extended the DACP Scheme to  all  medical  doctors,  whether  belonging  to organized services or holding isolated posts. Thus, it is clear that  the O.M. dated 29.10.2008 of  Mb H&FW is applicable only in respect  of  civilian doctors and not in respect  of  the AFMS doctors, as the AFMS doctors are part  and parcel of Armed Forces Personnel.  

(xx) However, for the civilian doctors of DGAFMS who are not  commissioned  Officers,  Ministry  of  Defence  issued  a Circular  dated  15.01.2009  making  available  for  them  the benefit  of  DACP  Scheme.  As  per  existing  orders  civilian doctors (who are not the Commissioned Officers) working as General Duty Medical Officers and Teaching Sub-Cadre in the

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DGAFMS are always dealt with and provided for with same service conditions/benefits which are decided in relation to other civilian doctors in Central Government services by the respective  authorities  such as  Ministry  of  Health  & Family Welfare, Railways, Ordnance Factories etc. and their service conditions decided by the Ministry of Defence, Govt. of India for the commissioned officers constituting AFMS Cadre.  

(xxi) The doctors inducted as Commissioned Officers in the Indian Army, the Indian Air Force and the Indian Navy having at least 7 promotional positions in their respective services i.e. Army, Navy and Air Force, having different pay scales etc. – have no concern whatsoever with the terms and conditions of service of  the civilian doctors.  As demonstrated above,  this distinction  between  the  category  of  doctors  working  as commissioned officers in the Indian Army, the Indian Air Force and the Indian Navy governed by the norms laid down by the Ministry  of  Defence  and  the  civilian  doctors  governed  by Ministry  of  Health  &  Family  Welfare,  Railways  etc.  –  has always  been  well  appreciated  and  acknowledged  by  the successive Pay Commissions including the 5th and 6th Central pay Commissions.  

(xxii) The record of Court cases mentioned and sought to be relied  upon  by  the  COSC  nowhere  reveals  that  the above-mentioned clear and unambiguous distinction between these two categories of doctors, i.e. commissioned officers in the Indian Army, the Indian Air Force and the Indian Navy and  civilian  doctors  were  properly disclosed/placed/explained  to  the  Hon’ble  Armed  Forces Tribunal  (AFT),  Chandigarh  Bench  while  defending  the  OA filed by the Col. (Retd.) Sanjeev Sehgal for implementation of DACP Scheme for AFMS officers. These facts were also not placed before the Hon’ble Supreme Court  in Civil  Appeal  D No.14342 of 2013. In the two subsequent court cases decided by the Ld. AFT, Principal Bench, New Delhi while defending the  OAs  filed  by  Col.(Retd.)  Ajamal  Singh Bhayal  and Gp. Capt.(Retd.) K.P. Singh, again the true and correct facts in this regard were not placed before the AFT.  

(xxiii) It  is  evident  from the  order  dated  18.7.2011 in  O.A. No.488  of  2011  passed  by  Ld.  AFT.  In  other  words,  the inapplicable  Resolution  dated  29.8.2008  was  placed  and relied upon in O.A. No.488 of 2011 and the correct Resolution dated 30.08.2008 of the Ministry of Defence applicable in that case was not placed before the Ld. AFT.

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(xxiv) When the above mentioned aspects came to be noticed, the matter was again examined and the case was taken up with the Ld. Attorney General for India, who advised the Govt. to file appeals before the Hon’ble Supreme Court of India in the two cases of Col.(Retd.) Ajamal Singh Bhayal and Gp. Capt. (Retd.) K.P. Singh.  

(xxv) Therefore, the official records of the Govt. clearly establish  and  demonstrate  that  doctors  belonging  to  two different  categories/classes  are  treated  and  provided  for separately.  It  would  therefore  not  be  permissible  to  grant benefit  of  DACP  (meant  for  civilian  doctors  including  the civilian doctors in the DGAFMS)  to  the doctors inducted as Commissioned  Officers  in  the  Indian  Army,  the  Indian  Air Force and the Indian Navy.  

(xxvi) The issue of grant of DACP Scheme with higher Grade  Pay  to  doctors  and  higher  Grade  Pay  to  other commissioned officers of the three Services as recommended by  the  COSC  is  not  only  impermissible  but  also  has  far reaching  serious  huge  financial  and  other  structural ramifications for the Defence Forces.

(xxvii) The impermissible demand [by creating a confusion by not placing correct facts] for making available the benefit of DACP Scheme meant  only for  civilian doctors  including the civilian  doctors  in  the  DGAFMS to  the  doctors  inducted  as Commissioned  Officers  in  the  Indian  Army,  the  Indian  Air Force and the Indian Navy who are dealt with and provided for by the decisions of the Ministry of Defence, Govt. of India – has a potential of creating serious issues in the Indian Army, the  Indian  Air  Force  and  the  Indian  Navy  having  7 promotional  avenues  for  doctors  inducted  as  commissioned officers  and  are  at  par  with  the  other  non-doctors commissioned  officers  in  the  Armed  Forces.  Such  an impermissible demand also inevitably carries with it a huge possibility of creating an irreversible imbalance in the working of the commissioned officers in all the Indian Army, the Indian Air Force and the Indian Navy in that, the hitherto existing same yardstick for doctors inducted as commissioned officers and non-doctor  commissioned  officers  in  various  Arms and Services in all the three Services (approx. 70,000).  

(xxviii) In  fact,  it  is  on  record  that  because  of  these reasons  the  COSC  also  inter  alia,  observed  in  its  earlier communication that  grant  of  DACP to  doctors in AFMS will adversely impact intra-cadre Dynamics in respect of 70,000

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Commissioned Officers. The COSC had also stated that the implementation of DACP should necessarily be in consonance with Service ethos and should subscribe and not upset the well established command and control structure.  

7. It is reiterated that in view of the above mentioned clear distinction  between  two  different  classes  of  doctors  i.e. Commissioned Officers in the AFMS and civilian doctors [not in the class of Commissioned Officers], there was never any recommendation by the 6th [being the appropriate  body]  for granting DACP to doctors recruited as Commissioned Officers in the three Services.  

8. In view of the position stated above, it is clear that the DACP  Scheme  as  brought  out  in  M/o  H&FW  O.M.  dated 29.10.2008,  is  not  applicable  for AFMS doctors working as Commissioned Officers in the three Services and therefore, the same had not been and cannot be extended to them.  

9. This  issues  with  the  approval  of  Hon’ble  Raksha Mantri.  

Yours faithfully,

     (D.K. Paliwal)          Deputy Secretary (Medical)”  

8. The respondents in the two appeals and the petitioner in the

writ  petition,  however  contend  that  the  decision  of  the  Tribunal

dated 18th July, 2011 in the case of  Col. Sanjeev Sehgal (supra)

having  attained  finality  with  the  dismissal  of  the  civil  appeal

preferred by the department before this Court on 25th September,

2013, it is not open to the department to contend to the contrary.

Any new plea to be taken by department is hit by the principles of

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res judicata.  Further, the department cannot be permitted to rely

on new documents such as Memorandum dated 29th August, 2008

and 30th August, 2008 which were never pressed into service in the

earlier  proceedings,  that  the  department  has  acquiesced  in  the

decision in Col. Sehgal’s case (supra) consequent to the dismissal

of the appeal against that decision by this Court, by not preferring

any review against the decision of this Court.  Also because, after

the  decision  of  the  Supreme  Court  in  the  case  of  Col.  Sehgal

(supra), the department took positive steps and decided to act upon

the direction given by the Tribunal – as is manifest from the office

note prepared by Shri  D.K.  Paliwal  dated 22nd September,  2014.

That has been duly approved by the Defence    Secretary,  Shri  R.K.

Mathur on 10th September, 2014 and finally by the then Defence

Minister  himself  on  13th September,  2014.   With  the  change  of

Government, it is urged that it is not open to the new Government

or the new Defence Minister to take a different view of the matter

and more so in violation of the direction issued by the Tribunal and

confirmed by the Supreme Court.  It is contended that consequent

to the decision of the Supreme Court rejecting the appeal preferred

by  the  department  in  Col.  Sehgal’s  case  (supra),  the  direction

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given  by  the  Tribunal  (Chandigarh  Bench)  stood  merged  on  the

principle of doctrine of merger.  Therefore, the decision now taken

by the present establishment is in the teeth of the decision of the

Supreme  Court.   It  is  submitted  that  the  appeals  filed  by  the

department are not maintainable and in any case the department

cannot be permitted to rely on documents which were not part of

the  record before  the  Tribunal  when such a plea was not  taken

before the Tribunal either in the Original Applications filed by the

respondents  in  the  two  appeals  or  in  the  previous  round  of

proceedings in the case of Col. Sanjeev Sehgal (supra).   

9. The  respondents  have  also  invited  our  attention  to  the

incorrect  certification  given  by  the  advocate  on  record  that  no

additional facts, new documents or grounds have been taken in the

appeal.   On merits,  it is contended that the recommendation made

by  the  6th Pay  Commission  does  not  expressly  exclude  the

application of  DACP Scheme to the Doctors in the Armed Forces

Medical Services (AFMS).  On the other hand,  it is wide enough to

include them.  Therefore, extending benefit of DACP to Doctors in

AMC  as  has  been  granted  to  other  doctors  in  organized  and

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unorganized  sectors    in  the  Central  Government  is  imperative.

They further contend that there is no distinction made by the order

dated 15th January, 2009 between the sub cadre of civilian doctors

and  doctors  belonging  to  the  cadre  of  regular  Armed  Forces.

Similarly, even the 6th Pay Commission makes no such distinction.

In any case, such a discrimination is not permissible in law.  They

further  submitted  that  the  appeals  filed  by  the  department  are

devoid  of  merits  and  deserve  to  be  dismissed;  and  instead  a

direction be given to the department to give the benefit of the DACP

Scheme to doctors in the Army Medical Corps on the same terms as

given  to  doctors  in  other  sub  cadres  of  AFMC  vide  order

No.12017/CMO/DGAFMS/DG-2B/126/09/D(Med.)  dated  15th

January,  2009  and  arrears  be  paid  to  them  with  18  per  cent

interest  per  annum   with  effect  from  29th October,  2008.   The

respondents  and  writ  petitioners  have  also  prayed  for  imposing

exemplary costs on the department for pursuing untenable pleas.

10. The  moot  question  for  our  consideration  is:   whether  the

medical doctors serving as Commissioned Officers in Armed Forces

are  covered  by  the  Ministry  of  Defence’s  Resolution  dated  30th

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August 2008 or Ministry of Finance’s Resolution dated 29th August

2008? Secondly, whether that issue is conclusively answered by the

Tribunal  in  Col.  Sehgal’s  case  (supra)?  The  decision  of  the

Tribunal  as  upheld  by  this  Court  in  the  case  of  Col.  Sanjeev

Sehgal  (supra),  was  in  the  context  of  the  relief  claimed  for

implementation of the Dynamic Assured Career Progression Scheme

(DACP)  as  approved  by  the  Central  Government.  In  that  case

reliance was placed on para 3 of the Office Memorandum bearing

No.F.No.A-45012/2/08-CH-V  dated  29th October  2008  issued  by

the Ministry of  Health and Family Welfare,  Government of  India.

The  said  proceeding  was  contested  by  the  department.   The

Tribunal noted the contents of the reply filed by the Department to

oppose the said Original Application,  wherein it was admitted that

Government of  India,  Ministry of  Health and Family Welfare has

implemented  the  DACP Scheme in  respect  of  Officers  of  Central

Health Services and Medical/Dental Doctors in Central Government

respectively.   The  Tribunal  also  noted  the  stand  taken  by  the

Department  that  the  said  scheme  in  Defence  has  not  been

implemented  and  the  matter  is  under  consideration  at  various

levels before military authorities and depending on the decision to

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be taken at the appropriate level, necessary orders will be passed in

due course. After having noticed this contention of the department,

the Tribunal disposed of the Original Application vide order dated

18th July 2011, the relevant portion whereof has been extracted in

the opening part of this judgment.  That decision was challenged

before this Court by way of Civil  Appeal D.No.1434/2013, which

was dismissed at the preliminary hearing stage on 23rd September

2013.  The  order  passed  by  this  Court  has  also  been  extracted

hereinabove.  

11.  On a fair reading of the said decision of the Tribunal dated

18th July 2011, all that it records is that there was no denial that

the DACP scheme is equally applicable to AMC Cadre. Further, the

Scheme has already been implemented in civil departments except

in the Armed Forces. On that  basis, the Tribunal issued a direction

to the Department to issue instructions for implementation of the

DACP Scheme in the light of  the Office Memorandum dated 29th

October 2008 issued by the Ministry of Health & Family Welfare,

dated 18th November 2008 issued by the Ministry of Finance and

dated 27th November 2008 issued by the Ministry of Defence.

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12. According to the respondents (in the aforementioned appeals),

therefore,  it  is  not  open  to  the  department  to  contend  to  the

contrary or take any position which would inevitably result in over

reaching the decision of this Court which has attained finality.  The

appellants,  on the other  hand,  contend that  the factual  position

recorded by the Tribunal is contrary to the official record, which,

however, was not placed before the Tribunal or before this Court.

In that, the correct factual position was not brought to the notice of

the Tribunal and also this Court, in the Civil Appeal filed before this

Court  against  the  decision  of  the  Tribunal.  Nevertheless,

considering the far reaching financial and structural ramifications

for the Defence Forces and in larger public interest, it is essential to

examine the core issue about the applicability of DACP Scheme to

Commissioned Officers of  Armed Forces. It  is submitted that the

department intends to proceed against the officials responsible for

filing such inaccurate and deficient pleadings – which entailed in

recording a finding that there was no denial that the DACP scheme

is  equally  applicable  to  AMC  Cadre.  There  is  ample

contemporaneous  record  to  indicate  that  the  Scheme  was  made

applicable  only  to  Civilian  Doctors  and  not  to  Commissioned

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Officers serving in AMC Cadre. It is not a case of the department

approbating and reprobating, but a case of an inaccurate plea being

taken  before  the  Tribunal  which  led  to  the  said  finding.  If  the

officials responsible for filing such pleadings, in the departmental

action are found to have done it intentionally, it would be a case

bordering on fraud.  The recommendation made in respect of the

DACP scheme by the 6th Pay Commission was limited to Civilian

Doctors (not in respect of Commissioned Officers in three Services).

Besides the resolution passed by the Ministry of Finance dated 29 th

August  2008,  bearing  No.1/1/08-IC  made  it  explicit  that  DACP

scheme was applicable only in respect of civilian employees in the

organized  and  unorganized  sectors  employed  by  the  Central

Government as also in the All India Services and to Chairpersons or

Members  of  regulatory  bodies.  Besides  the  said  resolution,  the

Ministry  of  Finance,  Department  of  Expenditure,  Implementation

Cell  on 29th August 2008 vide its  communication made it  amply

clear  to  the  Ministry  of  Defence  that  the  proposal  regarding

implementation  of  the  Government  decision  of  pay  revision  qua

Officers  of  Armed Forces  for  grant  of  DACP to  Doctors  who are

Commissioned Officers in AMC Cadre has been deleted as the same

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is not applicable to the Doctors in the Defence Forces. The Ministry

of  Defence accordingly,  on 30th August  2008 issued a resolution

extending the benefits of other allowances (other than DACP) for the

Commissioned Officers in three Services as recommended by the 6 th

Pay Commission and approved by the Government. In other words,

the appropriate authority had consciously not extended the benefit

of  DACP Scheme to Doctors who were Commissioned Officers  in

AMC  Cadre.  Further,  according  to  the  appellants  the

recommendation  of  the  6th Pay  Commission  to  grant  DACP  to

Doctors  was limited to Civilian Doctors and not to Doctors who

were  Commissioned  Officers  in  AMC  Cadre.   The  6th Pay

Commission has provided a large number of  other allowances to

Commissioned Officers  in AMC Cadre.    It  is  stated that  Armed

Forces Medical Services is a tri – service organization i.e. those who

are commissioned as Doctors can be employed in any of the three

services, namely (i) Indian Army, (ii) Indian Navy, and (iii) Indian Air

Force.  Commissioned Officers are governed by Army Instructions

74/1976.  It is submitted that doctors joining the three services as

Commissioned Officers get the rank of :-

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(i) Lt/Capt/Flight Lieutenant /Flying Officer

(ii) Captain/Major/Squadron Leader/Lt. Comdr.

(iii) Lt.Colonel/Wing Comdr./Comdr.

(iv) Colonel/Group Capt./Capt.Navy

(v)Brigadier /Air Cmdr./Cmdr.Navy

(vi) Major General/Air Vice Marshal/Rear Admiral

       (vii) Lt.General/Air Marshal/Vice Admiral.

Their promotion in AMC Cadre up to the rank of Captain, Major

and Lt.  Col.  are by time scale subject to meeting the prescribed

criteria  and  substantive  promotion  to  the  ranks  of  Colonel,

Brigadier, Major General and Lieutenant General is  by selection. As

per  para  10  of  Army  Instructions  74/1976,  officers  granted

permanent commission in the Army Medical Corps receive pay and

allowances  at  the   rates   laid  down  in  Pay  and  Allowances

Regulations for officers of the Army, as amended from time to time

by the Ministry  of  Defence,  Government  of  India  in  consultation

with Department of Expenditure, Ministry of Finance. On the other

hand, the Doctors serving in Ministry of Defence are categorized as

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civilian medical doctors.  In so far as civilian medical doctors are

concerned, the Government has already extended DACP Scheme in

terms  of  Circular  issued  by  the  Ministry  of  Defence  dated  15th

January 2009. The fact that no express denial was stated in the

pleadings  filed  before  the  Tribunal  cannot  be  construed  as

admission  of  the  Department  to  extend  DACP  even  to  doctors

working  in  AMC Cadre.  If  DACP Scheme is  extended to  doctors

working in AMC Cadre, it would result in an anomalous situation.

For, other Commissioned Officers working on the same rank would

not be entitled for DACP considering the service conditions of the

Commissioned Officers who are governed by the Army Act, 1950,

the Navy Act, 1957 and the Air Force Act, 1950 as the case may be.

A distinction has always been made between AMC Cadre and other

Medical Services in the Ministry of Defence. Even the previous Pay

Commission  reports  maintained  that  distinction  while  making

recommendations, as has been done by the 6th Pay Commission.

The  6th Pay  Commission  has  not  expressly  recommended

application  of  DACP  Scheme  to  Commissioned  Officers  in  AMC

Cadre, as can be discerned from the said report itself.  While it has

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limited that recommendation to civilian employees it has not done

so to doctors generally.

13. Reverting to the decision of the Tribunal in the case of  Col.

Sanjeev  Sehgal  (supra), in  our  opinion,  the  observation  made

therein will have to be construed in the context of the final direction

issued to the Department.  The authorities were directed to issue

instructions for the implementation of DACP scheme in the light of

Annexure A-1, A-2 and A-3 attached with the Original Application

within three months from the date of receipt of copy of the order.

That  direction  will  have  to  be  construed  to  mean  that  the

authorities  must  act  in  accordance  with  law  and  extend  DACP

scheme  even  to  the  Commissioned  Officers  of  AMC  Cadre,  if

permissible in law.  No more  and no less.  Therefore,  this  Court

whilst dismissing the Civil Appeal on 23rd September 2011 observed

that no substantial  question of  law of  general/public importance

arises for consideration. That decision cannot be given an expansive

meaning so as to be read that  de-hors the legal position,  DACP

scheme  be  extended  even  to  doctors  working  as  Commissioned

Officers in AMC Cadre. Thus understood, it must follow that the

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issues  raised  in  the  present  appeals  by  the  Government  and  in

particular by the Ministry of Defence are not concluded nor have

they attained finality. On this finding, it may not be necessary for

us to dilate on the possibility of an inaccurate reply affidavit having

been filed before the Tribunal to oppose the Original Application of

Col. Sanjeev Sehgal or for that matter the circumstances in which

the appropriate Authority was inclined to implement DACP scheme

qua  Commissioned  Officers  in  Armed  Forces.  It  is  possible  that

office note in that behalf was prepared on an erroneous assumption

that the Court has directed that the DACP scheme be implemented

even in the case of doctors working as Commissioned Officers in

Armed  Forces.  We,  however,  leave  it  open  to  the  department  to

proceed  against  the  concerned  officers  who  were  responsible  for

creating such confusion and for filing an inaccurate affidavit and for

not  bringing  on  record  entire  material  relevant  for  deciding  the

principal  question  about  the  entitlement  of  doctors  working  as

Commissioned Officers in AMC Cadre to receive DACP.

14. The next question is: whether this Court should itself examine

the gamut of  arguments regarding applicability  of  DACP Scheme

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even to Doctors serving as Commissioned Officers in AMC Cadre.

Indeed, the entire material has now been placed before us, on the

basis of which, it may be possible to answer the matters in issue.

The appellants have relied on the Office Memorandum dated 29th

August, 2008 issued by the Ministry of Finance and the resolution

issued by  the  Ministry  of  Defence  dated 30th August,  2008.  The

former Office Memorandum including the Office Noting on the file at

different  levels,  prima  facie,  indicates  that  there  was  a  clear

exclusion of applicability of DACP Scheme to Doctors working as

Commissioned Officers in AMC Cadre.  In addition, our attention

has been invited to the reference made to the 6th Pay Commission

and the specific recommendation made by the 6th Pay Commission

for  civilian  doctors  and  separate  recommendations  for  the

Commissioned Officers of AMC Cadre.  Since the Tribunal has not

either  in  the  case  of  Col.  Sanjeev  Sehgal  (supra) or  in  the

impugned decision examined all  these  aspects  on its  merits,  we

deem it appropriate to relegate the parties before the Tribunal for

reconsideration of the entire matter afresh without being influenced

by  the  observations  made  in  the  order  passed  in  case  of  Col.

Sanjeev Sehgal  (supra)  or  the  dismissal  of  appeal  against  that

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decision by this Court on 23rd September, 2011.  We say so because

we are of the considered opinion that the direction issued by the

Tribunal  in  the  case  of  Col.  Sanjeev  Sehgal  (supra) to  the

Department  for  issuing  instructions  was  obviously  to  decide  the

issue under consideration in accordance with law, on the question

of  applicability  of  DACP Scheme even to the Doctors working as

Commissioned Officers in AMC Cadre.  As noted in the earlier part

of  the  judgment,  controversy  has  far-reaching  structural

ramifications  to  the  Armed  Forces  besides  financial  implications

and the possibility of a discrimination within the cadre if additional

benefit was to be given only to Doctors working as Commissioned

Officers  in  AMC Cadre  and  not  to  other  Commissioned  Officers

working on the same rank. This requires deeper consideration.  For

that reason, this Court during the pendency of these appeals had

permitted the appropriate authority to examine the entire matter

and take a necessary decision. Pursuant to that liberty,  the Deputy

Secretary (Medical) of the Ministry of Defence, Government of India,

has  informed  of  the  decision  of  the  Government  vide

communication dated 13th January, 2016 to the Chairman, Chiefs

of  Staff  Committee  (COSC).   It  would  be  open  to  the  original

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applicants (respondents in the appeals) to question the correctness

thereof  in  the  remanded  proceedings.   This  would  provide  an

opportunity to both sides to pursue their pleas and also facilitate

the Tribunal to examine the correctness of the position and answer

the matters in issue appropriately.  

15. For the nature of order we propose to pass, it is unnecessary

to dilate further on the other contentions.  To do substantial and

complete  justice  to  the parties,  we leave  all  questions on merits

open to be considered by the Tribunal in the first instance. In other

words,  we  are  not  inclined  to  accept  the  grievance  of  the

respondents  in  the  appeals  that  the  appellants  should  not  be

permitted to rely  on new documents which were not  part  of  the

record before the Tribunal or for that matter incorrect declaration

and affidavit filed in support of the present appeals.  Instead, we

give  liberty  to  both  sides  to  file  further  pleadings  and  place  on

record any further documents before the Tribunal.  

16. The  appellants  must  file  a  comprehensive  affidavit

accompanied by all the relevant documents on which they would

like to place reliance to buttress the stand as to why DACP Scheme

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cannot be extended to Doctors engaged as Commissioned Officers

in AMC Cadre.  That affidavit be filed within four weeks from today.

The respondents (original applicants) will be free to file a response

to that affidavit within three weeks from the date of service of such

affidavit on them. The Tribunal may endeavour to dispose of the

remanded original applications expeditiously preferably within six

months of the completion of pleadings.  

17. As  regards  the  writ  petition  filed  under  Article  32  of  the

Constitution,  we  dispose  of  the  same  with  liberty  to  the  writ

petitioner to either intervene in the remanded proceedings before

the  Tribunal  or  to  file  a  fresh Original  Application  for  the  relief

claimed by him in the present writ petition, which can be decided

by  the  Tribunal  along  with  the  other  remanded  original

applications.

18. Accordingly,  we  partly  allow  the  two  appeals  preferred  by

Union of  India and thereby set  aside the order(s)  passed by the

Tribunal  in  the  respective  appeals  and  instead  remand  the

respective Original Applications to the Tribunal for reconsideration

of the entire matter de novo.

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19. Needless to observe, the Tribunal may decide all the remanded

original applications or any further original application on the same

subject  matter  analogously  to  avoid  any conflicting decision and

multiplicity of proceedings.   

20. We  grant  liberty  to  the  original  applicant(s)  to  amend  the

pleadings, if so advised, including to ask for further relief. In that

event, however, the Tribunal will give opportunity to the appellants

(respondents in the Original Application(s)) to file a response to the

amended pleadings and further relief, as the case may be.  

21. Both the appeals and writ petition are disposed of in the above

terms with no order as to costs.

………………………………….J. (A.M.Khanwilkar)

………………………………….J. (Dr.D.Y.Chandrachud)

New Delhi, Dated: 12th January, 2017