why DACP Scheme cannot be extended to Doctors engaged as Commissioned Officers in AMC Cadre. =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. 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. 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. 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.

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. 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 Sehgal[1] . 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 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 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:

“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;

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

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 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 13th 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,
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 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
(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
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 |Civilian Doctors under |
| |officers in the Indian Army, the |the Central Health Scheme|
| |Indian Air Force and the Indian |etc. |
| |Navy | |
|Governing |Ministry of Defence (MoD) vide |Ministry of Health & |
|resolution |No.1(3)/2008-D (Pay/Services) |Family Welfare dated |
|issued by |dated 30.8.2008 |30.10.2008 issued |
|the Govt. of| |pursuant to Ministry of |
|India | |Finance resolution dated |
| | |29.8.2008 |
|Service |AFMS doctors are Commissioned |Government by different |
|conditions |Officers in Military Uniform and |set of terms and |
| |are therefore part of Armed |conditions of service as |
| |Forces. All the service conditions|applicable under the |
| |in the matter of pay and |applicable rules such as |
| |allowances and service benefits |Central Civil Services |
| |applicable to other army personnel|(CCS) Rules etc. in |
| |are applicable to AFMS doctors. |respective Health |
| | |services. |
|Grade Pay |…..Rs.6,100/- |After implementing the |
|(GP) |Rs.6,600/- |DACP scheme Rs.5,400/- |
| |Rs.8,000/- |….. Rs.6,600/- |
| |Rs.8,700/- |Rs.7,600/- ….. |
| |Rs.10,000/- |Rs.10,000/- |
| |Rs.12,000/- | |
|Promotional |Captain/Flight |After grant of DACP |
|Avenue/hiera|Lieutenant/Lieutenant |promotion avenues of |
|rchy |Major/Squadron Leader/Lieutenant |civilian doctors are: |
| |Commander |Medical Officers |
| |Lieutenant Colonel/Wing |Senior Medical Officers |
| |Commander/Commander |Chief Medical Officer |
| |Colonel/Group Captain/Captain |Chief Medical Officer |
| |(Navy) |(NFSG) |
| |Brigadier/Air Commodore/Commodore |SAG |
| |(Navy) | |
| |Major General/Air Vice | |
| |Marshal/Rear Admiral | |
| |Lieutenant General/Air | |
| |Marshal/Vice Admiral | |
| |DGAFMS | |
|Other |Military Service Pay @ Rest. |No such allowance/benefit|
|service |6000/- pm for all officers up to |is available to civilian |
|benefits |the rank of Brig in addition to |doctors dealt with by the|
| |Grade Pay, Outfit allowance, Kit |decisions of the Ministry|
| |Maintenance Allowance, Ration |of Health & Family |
| |Money decided from time to time |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 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).

(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 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.

(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 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 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 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 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 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
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.

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
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 29th 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 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 6th 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 :-

(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 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 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 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 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 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
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 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.

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
———————–
[1]

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

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