Holding

The DACP Scheme is not applicable to doctors serving as commissioned officers in the Army Medical Corps; the matter must be reheard by the Armed Forces Tribunal.

Summary

The Union of India appealed against two Armed Forces Tribunal (AFT) orders granting the Dynamic Assured Career Progression (DACP) Scheme to doctors serving as commissioned officers in the Army Medical Corps (AMC). The respondents argued that DACP, approved for civilian doctors, should also apply to AMC officers, relying on a 2011 AFT decision in Col. Sanjeev Sehgal’s case. The Supreme Court held that the factual record before the Tribunal was incomplete and that the DACP Scheme was intended only for civilian medical personnel, not for commissioned officers governed by the Army, Navy and Air Force Acts. Consequently, the Court found that the earlier Tribunal direction could not be read to extend DACP to AMC officers and remanded the matter for fresh de novo consideration. The Court set aside the Tribunal’s orders and directed the parties to file affidavits and pleadings before the Tribunal, while disposing of the writ petition with liberty to intervene.

Issues considered

The applicability of the Dynamic Assured Career Progression (DACP) Scheme to doctors serving as commissioned officers in the Army Medical Corps.
Whether the 2011 Armed Forces Tribunal decision in Col. Sanjeev Sehgal’s case is binding on the present appeals (res judicata).
Whether the Ministry of Defence’s resolution of 30 August 2008 excludes DACP for AMC commissioned officers.
Whether the Supreme Court can revisit the question of DACP applicability despite earlier dismissal of a civil appeal.

Legislation cited

Subjects

DACPDynamic Assured Career ProgressionArmy Medical CorpsCommissioned OfficersArmed Forces TribunalRes judicataPay CommissionPromotionPay and Allowances RegulationsMinistry of Defence

Judgment

(2017] t S.C.R. 492

A UNION OF INDIA AND ORS.
v.
K.P. SINGH AND ANR.
(Civil Appea!No.3798 of2015)
JANUARY 12, 2017
B
[A.M. KHANWILKAR AND DR. D.Y. CHANDRACHUD, JJ.)
Armed Forces - Dynamic Assured Career Progression Scheme
(DACP) - Applicability of. to medical doctors engaged as
Commissioned Officers in Army Medical Crops-AMC Cadre -
Doctors of AMC, with more than 20 years of commissioned/Group-
c A Gaze/led service - Applications by doctors seeking DACP before
the Armed Forces Tribunal - Tribunal allowed the applications
relying on the decision dated 18'" July 2011 in the Original
Application seeking similar relief. wherein the tribunal had held
that there was no denial that the DACP Scheme is equally applicable
D to AMC Cadre and had directed the department ta.issue instructions
for implementation of the DACP.Scheme - On appeal, held: Correct
factual position was not brought to the notice of the tribunal and
also this Court, in the Appeal against the decision of the tribunal -
However, considering the far reaching financial and structural
ramifications for the Defence Forces and in larger public interest,
E it is essential to examine the applicability of DACP Scheme to
Commissioned Officers of Armed Forces - 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
F doctors working in AMC Cadre, it would result in an anomalous
situation - Since the other Commissioned Officers working on the
same rank would not be enlitled for DACP considering the service
conditions of the Commissioned Officers governed by respective
Acts - Further, the 6'" Pay Commission has not expressly
recommended applieation of DACP Scheme to Commissioned
G Officers in AMC Cadre - Direction to issue instructions for the
implementation of DACP scheme would have lo be construed to
mean that the authorities must act in accordance with lmv and extend
DACP scheme even to the Commissioned Officers of AMC Cadre, if
permissible in law and nothing more - Thus, the respective OAs
H remanded to tribunal for reconsideration afresh.
492
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 493

Disposing of the appeals and writ petition, the Court A
HELD: t.t On a fair reading of the decision in *Co/. Sanjeev
Sehgal passed by t.he Tribunal dated t8" July 2011, all that it
records is that there was no denial that the Dynamic Assured
Career Progression Scheme (DACP) is equally applicable to AMC
Cadre. Further, the Scheme has already been implemented in B
civil departments except in the Armed Forces. On that basis, the
tribunal issued adirection to the Department to issue instructions
for implementation of the DACP Scheme in the light of the Office
Memorandum dated 29'' October 2008 issued by the Ministry of
Health & Family Welfare, dated ts•• November 2008 issued by
the Ministry of Finance and dated 27'' November 2008 issued by c
the Ministry of Defence. [Para 111 [513-A-CJ
t.2 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 D
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. The
Commissioned Officers are governed by Army Instructions
74/t976. Their promotion in AMC Cadre up to the rank of Captain, E
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 F
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 G
medical doctors are concerned, the Government has already
extended DACP Scheme in terms of Circular issued by the
Ministry of Defence dated ts•• January 2009. The fact that no
express denial was stated in the plea!lings filed before the tribunal
cannot be construed as admission of the Department to extend
H
494 SUPREME COURT REPORTS [2017] I S.C.R.

A 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
B
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 previons Pay
Commission reports maintained that distinction while making
recommendations, as has been done by the 6th Pay Commission.
c The 6'h Pay Commission has not expressly recommended
application of DACP Scheme to Commissioned Officers in AMC
Cadre. While it has limited that recommendation to civilian
employees it has not done so to doctors generally. [Para 12) [513-
E; 514-E-F, H; 515-A-F)
D 1.3 The observation made in Col. S(lnjeev Se/ig(I/ case would
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 Annexures attached with the Original Application. That
direction would have to be construed to mean that the authorities
E
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 23" September 2011 observed that no
substantial question of law of general/public importance arose
F 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 instant appeals by the Government and
in particular by the Ministry of Defence are not concluded nor
G
have they attained finality. On this finding, it may not be necessary
to dilate on the possibility of an inaccurate reply affidavit having
been filed before the tribunal to oppose the Original Application
of Col. S(lnjeev Se/ig(I/ or for that matter the circumstances in
which the appropriate Authority was inclined to implement DACP
H scheme qua Commissioned Officers in Armed Forces. It is
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 495

possible that office note in that behalf was prepared on an A
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. However, it is left open
to the department to proceed against the concerned officers who
were responsible for creating such confusion and for filing an
B
inaccurate affidavit and for not bringing on record entire material
relevant for deciding the principal question. [Para 13) [515-G-H;
516-A-D)
1.4 The appellants have relied on the Office Memorandum
dated 29" August, 2008 issued by the Ministry of Finance and
the resolution issued by the Ministry of Defence dated 30'' August, c
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. Since the
tribunal has not either in the case of Col. Stmjeev Seliga/ case or D
in the impugned decision examined all these aspects on its merits,
it is deemed 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 Seliga/ case or the dismissal of appeal against that
decision by this Court on 23'' September, 2011. It is said so E
because the direction issued by the tribunal in the case of Col.
Sanjeev Seliga/ 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. F
The said controversy has far-reaching structural ramifications to
theArmed Forces besides financial implications and the possibility
of a discrimination within the cadre. This requires deeper
consideration. For that reason, this Court during the pendency
of these appeals permitted the appropriate authority to examine
the entire matter and take a necessary decision. Pursuant to that G
liberty, the Deputy Secretary (Medical) of the Ministry of Defence,
Government of India, has informed of the decision of the
Government vide communication dated 13" January, 2016 to the
Chairman, Chiefs of Staff Committee (COSC). It would be open
to tbe respondents in the appeals to question the correctness H
496 SUPREME COURT REPORTS [2017] 1 S.C.R.

A thereof in the remanded proceedings. This .would provide an
opportunity .to bot.h sides to pursue their pleas and also facilitate
the tr.ibunal to examine the correctness of the position and answer
th~,matters in issue appropriately. [Para 14] (516-F-G; 517-A-E]

1.5 The grievance of the respondents in the appeals that
B 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 is not accepted. Instead, liberty is given to both
sides to file further pleadings and place on record any further
documents before the tribunal. (Para 15] [517-G]
c
1.6 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. The respondents (original
D applicants) would be free to file a response to that affidavit. [Para
16] (517-H; 518-A]
. 1. 7 The writ petition filed under Article 32 of the
Constitution are disposed of with liberty to the writ petitioner to
either intervene in the remanded proceedings before the tribunal
E 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. The order(s)
passed by the tribunal in the respective appeals are set aside
and instead the respective Original Applications are remanded
F to the tribunal for reconsideration of the entire matter de novo.
[Paras 17, 18] [518-B-D]
Col. Sanjeev Sehgal 0.A. No. 488 of 2011 Armed
Forces Tribunal - referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3 798 of
G 2015.
From the Judgment and Order dated 17.04.2014 of the Armed
Forces Tribunal, Regional Bench, Chandimandir in Original Application
No. 178 of2014
WITH
H C.A.No. 3799of2015
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 497

W. P. (C) No. 957 of2014 .. · A
Maninder Singh, ASG., Purvish Jitendra Malkan, Pradeep Kumar
Yadav, Ashutosh Yadav, Ms. Manju Sharma Jetley, R. Balasubramania,
Nalin Kohli, Prabhas Bajaj, Amarjeet Singh, Ms. Sadhna Sandhu, M.K.
Maroria, B. V. Balaram Das, Dev.endra Singh, Anant K. Vatsya, Apurav
Singhal, Narsingh Narain Rai, Advs. for the appearing parties. B
The Judgment of the Court wap delivered by
A.M. KHANWILKAR, J. I. 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 oflndia, with more than 20 years of commissioned/ c
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
ForcAs Tribunal at New Delhi, by way of an Original Application D
contending that they were entitled to receive Dynamic Assured Career
Prog;·ession 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 E
medical officers/doctors who are commissioned officers of the Armed
ForcAs.
3. An Original Application seeking sim':~. relief was filed by one
Col. Sanjeev Seltgal' . The same was allowed by the Tribunal vide
order dated 18" July 2011. In that case, the Tribunal had noted the F
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
a
take 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: G
"Heard tlte learned counsel for tlte botlt the parties and
perused the documents including Annexures 1,2 and 3.

.
' 0.A. No. 488 of 2011 before the Armed Forces Tribunal at Chandigarh
H
498 SUPREME COURT REPORTS (2017] 1 S.C.R.

A 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 bes/ known to them and the matter is hinging
for the last about three years. This is clearly detrimental
B
tc 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
c directed lo issue instructions for the implementation of
the DACP Scheme in the light of Annex11res A-I 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
D 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
E 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 concemed
respondents to the 4'' financial upgradation of grade pay of Rs. I 0,000/
- under the DACP Scheme. The original application filed by the
respondents in C.A. No. 3798 of2015, was allowed by the Armed Forces
F Tribunal at New Delhi, being 0.A. 178 of 2014, on l 7'h April, 2014.
Similarly, the Original Application No. 108 of2014 filed by the respondents
in C.A. No. 3799of2015 was allowed videorderdated 9m April, 2014.
The department has assailed these orders in the respective appeals.
5. When the present appeals were pending for consideration, the
G petitioner in companion W.P. No. 957 of2014 approached this Court
praying for the following relief:
i. "Issue a mandamus for direction lo the respondents
thereby to implement the recommendations of 6•• Pay
Commission from the date of issuance of Official
H
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 499
[A.M. KHANWILKAR, J.]

Memorandum (OM) dated 29.10.2008 issued by the A
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". B
6. It is an admitted position that the decision of the Armed Forces
Tribunal, Chandigarh Bench in the case of Col. Sanjeev Seliga/ (supra)
was assailed by the appellants by way of Civil Appeal D.No. 14342 of
2013 before this Court. That was, however, summarily dismissed atthe
preliminary hearing stage on 23"' September, 2013 by the Bench presided c
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/ D
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
admilted on 13'" April, 2015 after due consideration, by a Bench of two E
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 liber!Y 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
F
dated 11lhDecember,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
formnl decision has been taken at the highest level in the Ministry of
Defence, Government of India which has been communicated to the G
Chairman, Chiefs of Staff Committee (COSC) vide letter dated 13'"
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:
500 SUPREME COURT REPORTS [2017] I S.C.R.

A "Annexure A-3
No. 101112010-D(Medical)
Government of India
Ministry of Defence

B Sena Bhavan, New Delhi-110011
Dated the 13'' January\ 2016
To,
The Chairman,
Chiefs of Staff Commillee (COSC),
COSC Secretariat,
c 263D, South Block,
New Delhi.
Subject: Recommendations of the COSC regarding Dynamic
Assured Career Progression (DACP) Scheme in
respect of Defence Forces Personnel.
D Sir,
l am directed to refer to the le lier No. Cl702616tt CPCIVol.
Ill dated 25.8.2015 of the Chairman, Chiefs of Staff Committee
(COSC) 011 the above noted subject, and to say that as
requested in the aforesaid le/ler, the case was given an
opportunity to present the 'Case of the Services for grant of
E
DACP Scheme to all Defence Forces Officers alongwilh the
Armed Forces Medical Servich (AFMS) Officers before the
H-:m 'ble Raksha Mantri on 08.01.2016. In the presentaiion
made by the COSC, it was stated that ihe DACP Scheme, as
rt'commended by the 6'' Central Pay Commission (CPCJ in
F para 3.6 of its report, {s applicable td AFMS doc/ors also.
The COSC also referred to para 12 oflhe Resolution No.Jiii
2008-IC dated 29. 08.2008, wherein, it has been slated that
the DACP &heme for doctors will be extended uplo Senior
·Administrative Grade (SAG) for Medical Doctors having 20
, 'years of regular service, or 7 years of regular service in the
0 Nun Functional Selec1i01i Grade (NFSGJ of Rs.87001- 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 ..'i:ourse of the prese'11tatio11, the COSC was
H informed that since separate reco111111e11datio11s were made by
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 501
[A.M. KHANWILKAR, J.]

the 6'• CPC for Defence Forces Personnel, the recommendation A
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,
B
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 granJ c
of same Grade Pay to all Defence Officers, as recommended
by the case 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,
D
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. E
as contained in Al 7411976 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 ofArmed
F
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 employmenl including promotions, pay structure
etc. for other civilian doctors appointed in other Departments/ G
Ministries of the Govt. of India are entirely di.fferell/. 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
H
502 SUPREME COURT REPORTS [2017] I S.C.R.

A 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
B
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 & FIV. Ministry of Railways, etc.
c (iv) In the present case, the doctors constituting AFMS
who are Commissioned Officers in the Indian Army, the Indian
Afr Force and the Indian Nal'e 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
D
civilian Gover11111e111 servants including doctors who are no/
commissioned officers in the Indian Army, rhe Indian Air Force
and the Indian Navy.
(v) The ex isling sanctioned hierarchy of promotion for
doctors joining the Indian Army, the Indian Air Force and
E the Indian Navy as commissioned officers is as under:
(a) Captain/Flight Lieutenanr/Lieu/enant
(b) Major/Squadron Leader/Lieutenant Commander -•
(c) Lieu/enant 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) Lieu/enant General/Air Marshal/Vice Admiral

(vi) As per existing Govt. orders issued by the Govt. ofIndia,
Ministry ofDefence, promotion in Army Medical Corps(AMC} upto
G the rank ofCaptain, Major and Lt. Col and their equivalents in the
Indian Navy and the Indian Air Force are by time scale subject to
meeling the laid down criteria and substantive promotion to the
ranks ofColonel, Brigadier, Major General and Lieu/enant 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
H
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 503
[A.M. KHANWILKAR, J.]

subject to the officer being found fit in all respects by appropriate A
selection board as approved by the competent authority.
(vii) In terms of para JO of Al 7411976, 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 ofDefence, Govt. of B
India in consultation with Department ofExpenditure, Ministry of
Finance.
(viii) It is evidentfi"om record that before the 5'" Central Pay
Commission, doctors belonging to Central Health Service, Railways
etc. had raised a grievance of stagnation, lack of promotional c
avenues etc. while dealing with terms and conditions ofservice and
pay and allowances of doctors serving in Central Health.Service
(CHS), the Railway Health Service and the Indian Ordnance
Factories Services, etc. the 5'" Central Pay Commission noted that
there was stagnation and lack ofproper promotional avenues for
such doctors in the aforesaid three services and as such, it D
recommended DACPfor them. Therefore.for the benefit ofdoctors
belonging to CHS, Railways, Indian Ordnance Factories Services-
the DACPwas recommended by the CPC onlyfor the civilian doctors
governed by the Ministry ofHealth & Family Welfare etc. in that
category. This benefit was not extended to commissioned officers E
serving as doctors in the three Services being governed by separate
norms including pay scales, promotions, etc. laid down by the
Ministry ofDefence. ·
(ix) It is also evidentft·om record that the Ministry ofDefence,
Government of India, vide letter dated 28.10.2005. conveyed the
sanction ofthe President to the reckonable commissioned service F
for promotion to the rank lieutenant Colonel and equivalent as 11
years andfor promotion to Colonel (Time Scale) as 24 years. Thus,
this letter was directed towards restructuring ofNon-Select Ranks in
commissioned officers cadre ofAFMS.
(.>) The above mentioned order dated 28.10.2005 was aimed
. at granting/aster promotions to the commissioned officers doctors G
constituting a separate class. The difference in promotional avenues
and hierarchical cadre, pay and allowances and other benefits of
AMC officers vis-a-vis civilian doctors is tabulated and shown as
below:
H
504 SUPREME COURT REPORTS [20 Ii'] I S.C.R.

A Doctors of AFMS as Civilian Doctors under the
Co1nn1issioned officers in the Central Health Schen1e etc.
Indian Army, the Indian Air
Force and the Indian Navv
Governing Ministry of Defence (MoD) Ministry of Hea/Jh & Fami~v
resolution issued vide No. I (3)/2008-D Welfare dated 30.10.2008
by the Govt. of (Pay/Services) dated issued pursuant to Ministry
B India 30.8.2008 of Finance resolution dated
29.8.2008
Service conditions AFMS doctors are Governn1ent by different set
Co1nn1issioned Officers in of ternis and conditions of
Military Uniforn1 and are service as applicable under
therefore part of Arn1ed the applicable rules such as
Forces. All the service Central Civil Services (CCS)
c conditions in the n1at1er of Rules etc. in respective
pay and a//0111ances and Health services.
service benefits applicable to
other army personnel dre
ann/icable to AFMS doctors.
Grade Pay (GP) ... .. Rs. 6, /001- After in1ple1'1enting the
Rs.6,6001- / ' / DACP schen1e Rs.5,4001-
D Rs.8,0001- ..... Rs. 6.6001-
Rs.8, 7001- Rs. 7. 600!- ..... Rs. I 0, 0001-
Rs.10,0001-
Rs.12,0001-
Promotional ii Captain/Flight After grant of DACP
Avenue/hierarchy Lieutenant/Lieutenant pron1otion avenues of
ii) Major/Squadron civilian doctors are:
E Leader/Lieutenant (i) Medical Officers
Con1mander (ii) Senior Medical Officers
iii) Lieutenant Colonel/Wing (iii) Chief Medical Officer
Co111111ander/Con1mander (iv) Chief Medical Officer
iv) Colonel/Group (NFSGJ
Captain/Captain (Navy) (v) SAG
'v) Brigadier/Air
F Con1modore/Con1n1odore
(Navy)
vi) Major General/Air Vice
Marshal/Rear Ad1niral
I
vii) Lieutenant General/Air
Marshal/Vice Ad111iral
viiiJDGAFMS
G Other sen·ice Military Service Pay@ Rest. No such allo-a·ancelbenefit is
benefits 60001- pm for all officers up available to civilian doctors
to the rank of Brig in dea/1 ~\·ith by the decisions of
addition to Gmde Pay, the Ministry of Health &
Outfit allowance, Kit Family Welfare.
Maintenance Alloii'ance,
Ration Money decided fron1
lin1e to time
H
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 505
[A.M. KHANWJLKAR, J.]

(.ri) It is evident from record that Armed Forces Personnel A
(Commissioned Officers) and Civilian Government employees are
two different classes, the Central Pay Commissions (CPC) make
separate recommendations for them. The 6'" CPC also made separate
recommendations with regard to 'Pay Scales of Defence Forces
Personnel' (Chapter 2.3) and 'Allowances & Conditions ofservice
of Defence Forces Personnel' (Chapter 4.10). Therefore, when B
the decisions wos to be taken by the Govt. of India, Ministry
of Defence with regard to recommendatio.ns of 6'" .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. c
(xii) A note was issued by the Department o/Expen.diture
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, D
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.
E
2. A point (ix) has been added in the Draft Resolution
regarding the enhanced Grade Pay for middle level officers
(from Captain/Equ. To Brigadierlequ).
3. In the annexure to the Resolution where revised pay scales
have been indicated, for the sake of clarity and understanding, F
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.
G
4. In the Annexure to the R~solution relating to Allowances
concessions & benefits and ~qnditions of service of Defence
Forcespersonnel, against iteni 8, point no.(ii) relating to grant
of Dynamic ACP to doctors has been deleted, as the same is
not applicable to doctors iii the Defence Forces ....... "
H
506 SUPREME COURT REPORTS [2017] I S.C.R.

A (xiii) The above-mentioned unambiguous pos1110n
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
B
mentioned in the eventual Resolution issued by the Ministry
of Defence, Govt. of India on 30.08.2008 implementing the
recommendations of the 6'h CPC.
(xiv) Therefore, as in the past, two separate Resolutions
were issued by the Government conveying the decisions on
c the recommendations of the 6'h CPC. One Resolution was
issued by the Ministry of Finance in respect of the Civilian
employees vide resolution No.I/112008-JC dated 29.8.2008
and another Resolution was issued by the Ministry of Defence
in respect of Armed Forces Personnel (including AFMS
D Commissioned Officers) vide No.1(30)12008-D (Pay/Services)
dated 30.08.2008.
(xv) The civilian doctors including civilian doctors in the
AFMS (other than Commissioned Officer~) are governed by
the Resolution dated 29.08.2008 issued by the Ministry of
E 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. civiliw_1 employees of the .Central Govt. in
Groups 'A', 'B ', 'C ', '!P including civilian doctors in the
F 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).

G (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
H
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 507
[A.M. KHANWILKAR, J.]

on various recommendations of the Commission in respect of A
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-11..... "
(xviii) Item No. 7 of Annexure-I and Item No. 7 of Annexure- B
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.
c
(xix) it is also clear from the recommendations made by
the 6'' 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 D
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 E
Civilian employees. In pursuance of this Resolution of Deptt.
Of Expenditure, Ministry of Finance, the Ministry of Health
& Family Welfare (Mio H&FW) vide their O.M No.A.450121
212008-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 F
O.M dated 29.10.2008 of Mb H&FW is applicable only in
respect of civilian doctors and not in respect of the AF.Ms
doctors, as the AFMS doctors are part and parcel of Armed
Forces Personnel.
(xx) However, for the civilian doctors of DGAFMS who G
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 H
508 SUPREME COURT REPORTS [2017] I S.C.R.

A 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
B
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
h<1ving at least 7 promotional positions in their respective
services i.e. Army, Navy and Air Force, having different pay
c 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
D 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 5'" and 6'"
Central pay Commissions.
E (xxii) The record of Court cases mentioned and sought to
be relied upon by the case 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
F the Hon 'ble Armed Forces Tribunal (AFT), Chandigarh Bench
while defending the OA filed by the Col. (Reid.} 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
G court cases decided by the Ld. AFT, Principal Bench, New
Dq/hi while defending the OAs filed by Col. (Retd.) Aja ma/
Singh Bhayal and Gp. Capt. (Retd.) K.P. Singh, again the true
and correct facts in this regard were not placed. before the
AFT.

H (xxiii) It is evident from the order dated 18. 7.2011 in 0.A.
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 509
[A.M. KHANWILKAR, J.]

No.488 of 2011 passed by Ld. AFT. In other words, the A
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.
(xx iv) When the above mentioned aspects came to be B
noticed, the mat/er was again examined and the case was
taken up with the Ld. Allorney General for India, who advised
the Govt. to file appeals before the Hon 'hie Supreme Court
of India in the two cases of Col. (Reid.) Ajamal Singh Bhayal
and Gp. Capt. (Reid.) K.P. Singh.
c
(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 doi:tors in the DGAFMS) to the doctors inducted as D
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 E
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 F
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 G
- 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
H
510 SUPREME COURT REPORTS (2017] I S.C.R.

A inevitably carries with it a huge possibility of creating an
irreversible imbalance in the working of the commissioned
o;]icers 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
B
three Services (approx. 70,000).
(xxviii) In fact, it is on record that because of these reasons
the case also inter a/ia, observed in its earlier communication
that grant of DACP to doctors in AFMS will adversely impact
intra-cadre DynamiCs iff respect of 70, 000 Commissioned
c 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
D 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 6'" [being the appropriate body} for
granting DACP to doctors recruited as Commissioned Officers
E in the three Services.
8. In view of the position slated above, it is clear !hat the
DACP Scheme as brought out in Mio 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 'hie Raksha Mantri.
Yours faithfully,
(D.K. Paliwal)
Deputy Secretary (Medical)"
G
8. The respondents in the two appeals and the petitioner in the
writ petitiDn, however contend that the decision of the Tribunal d11ted
l 8'h July, 2011 in the case of Col. Sanjeev Seitgal (supra) having attained
finality with the dismissal of the civil appeal preferred by the department
before this Court on 25'h September, 2013. it is not open to the department
H to contend to the contrary. Any new plea to be taken by department is
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 511
[A.M. KHANWILKAR, J.]

hit by the principles of resjudicata. Further, the department cannot be A
permitted to rely on new documents such as Memorandum dated 29"
August, 2008 and 30'h 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
B
review againstthe decision ofthis 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 22"' September, 2014. That has been duly approved by
the Defence Secretary, Shri R.K. Mathur on I O'h September, 2014 c
and finally by the then Defence Minister himself on l 3'h 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 confir111ed by the Supreme Court. It is contended that
D
consequent to the decision of the Supreme Court rejecting the appeal
preferred by the department in Col. Sehgal's case (supm), 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 E
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 Or;ginal Applications
filed by the respondents in the two appeals or m the previous round of
proceedings in the case of Col. Sanjeev Sehgal (supm).
F
9. The respondents have alo'.l 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 6" Pay Commission
does not expressly exclude the application of DACP Scheme to the
Doctors in the Armed Forces Medical Services (AFMS). On the other G
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 !he Central Government is
imperative. They further contend that there is no distinction made by
. the order dated 15" January, 2009 between the sub cadre of civilian H
512 SUPREME COURT REPORTS [2017) I S.C.R.

A 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
B
Army Medical Corps on the same terms as given to doctors in other sub
cadres oiAFMC vide order No.12017 /CMO/DGAFMS/DG-28/126/09/
D(Med.) dated 15'" January, 2009 and arrears be paid to them with 18
per cent interest per annum with effect from 29'h October, 2008. The
respondents and writ petitioners have also prayed for imposing exemplary
c 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 30'h August 2008 or
Ministry of Finance's Resolution dated 29'h August 2008? Secondly,
D whether that issue is conclusively answered by the Tribunal in Col.
Sellgal'!i case (supra)? The decision of the Tribunal as upheld by this
Court in the case of Col. Sanjeev Seliga/ (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
E bearing No.F.No.A-45012/2/08-CH-V dated 29'" October 2008 issued
by the Ministry of Health and Family Welfare, Government of India.
The saici 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
F 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
G taken at the appropriate level, necessary orders will be passed in due
course . .A.fter having noticed this contention of the department, the Tribunal
disposed of the Original Application vide order dated 18'" 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
H Civil Appeal D.No.1434/2013, which was dismissed at the preliminary
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 513
[A.M. KHANWILKAR, J.]

hearing stage on 23'' September 2013. The order passed by this Court A
has also been extracted hereinabove.
11. On a fair reading of the said decision of the Tribunal dated
l.8•h 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 B
Forc~s. 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 29'h October 2008 issued by the
Ministry of Health & Family Welfare, dated I 8'h November 2008 issued
by the Ministry of Finance and dated 27'h November 2008 issued by the
Ministry of Defence. c
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 D
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
E
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 Anned Forces. It is submitted
that the department intends to proceed against tl1c 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· F
equally applicable to AMC Cadr~. 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
G
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 6"' 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'h August 2008, H
s14 SUPREME COURT REPORTS [2017] I S.C.R.

A bearing No.1/1/08-IC made it explicitthat 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 ofFinance, Department of Expenditure,
Implementation Cell on 29'" August 2008 vide its communication made it
B
amply clear to the Ministry of Defence that the proposal regarding
implementation of the Government decision of pay revision qua Officers
of ArrneJ Forces for grant ofDACP 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
c accordingly, on 30" August 2008 issued a resolution extending the
benefits of other allowances (other than DAC.P) for the Commissioned
Officers in three Services as recommended by the 6" Pay Commission
and approved by the Government. In other words, the appropriate
authority had consciously not extended the benefit ofDACP Scheme to
Doctors who were Commissioned Officers in AMC Cadre. Further,
D
according to the appellants the recommendation of tlie 6•h Pay
Commission to grant DACP to Doctors was limited to Civilian Doctors
and not to Doctors who were Commissioned Officers in AMC Cadre.
The 6"' Pay Commission has provided a large number ofother allowances
to Commissioned Officers in AMC Cadre. It is stated that Armed
E 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
Commi~sioned Officers get the rank of:-
F
(i) Lt/Capt/Flight Lieutenant /Flying Officer
(ii) Captain/Major/Squadron Leader/Lt. Comdr.
(iii) Lt.Colonel/Wing Comdr./Comdr.
G (iv) Colonel/Group Capt/Capt.Navy
(v) Brigadier /AirCmdr./Cmdr.Navy
(vi) Major General/Air Vice Marshal/Rear Admiral
(vii) Lt.General/Air Marshal/Vice Admiral.
H Their promotion in AMC Cadre up to the rank of Captain, Major
UNION OF JNDIA AND ORS. v. K.P. SINGH AND ANR. 515
[A.M. KHANWILKAR, J.]

and Lt. Col. are by time scale subject to meeting the prescribed criteria A
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
B
·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 l 5'h January c
2009. The fact that no express denial was stated in the pleadings filed
befo1e 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 anomalo11s situatfon. For,.other Commissioned Officers working on
D
the same rank would not be entitled for DACP considering the service
conditfons 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 lie. 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 E
recommendations, as has been done by the 6th Pay Commission. The
6"' Pay Commission has not expressly recommended application ofDACP
Scheme to Conimissioned 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.
F
13. Reverting to the decision of the Tribunal in the case of Col.
~an}e~v Sel11:al (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 G
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 23" September201 I observed H
516 SUPREME COURT REPORTS [2017] I S.C.R. ·

A 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
B
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
affidavil 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
c 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
D
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
E 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 b~ possible to answer the matters in issue. The appellants have
relied on the Office Memorandum dated 29'" August, 2008 issued by the
Ministry of Finance and the resolution issued by the Ministry of Defence
F
dated JO•h August, 2008. The former Office Memorandum including the.
Office Noting on the file at different levels, prima facie, indicates that
there wa5 a clear exclusion ofappl icabil ity ofDACP Scheme to Doctors
working as Commissioned Officers in AMC Cadre. In addition, our
attention has been invited to the reference made to the 6'" Pay Commission
G and the specific recommendation made by the 6'" Pay Commission for
civilian doctors and separate recommendations for the Commissioned
Officers ofAMC 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
H
UNION OF INDIA AND ORS. v. K.P. SINGH AND ANR. 517
[A.M. KHANWILKAR, J.]

being influenced by the observations made in the order passed in case of A
Col. Sanjeev Sehgal (supra) or the dismissal of appeal against that
decision by this Court on23"' 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
B
accordance with law, on the question of applicability ofDACP Scheme
even to the Doctors working as Commissioned Officers in AMC Cadre.
As noted in the earlier part ofthe 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 c
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
D
of Defence, Government of India, has informed of the decision of the
Government vi de communication dated J3 1h 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 E
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
F
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 G
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 H
518 SUPREME COURT REPORTS [2017] l S.C.R.

A 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.
B 1i. 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.
c
18. Accordingly, we partly allow the two appeals preferred by
Union oflndia 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.
D
19. Needless to observe, the Tribunal may decide all the remanded
original applications or any furtheroriginal application on the same subject
matter a,ialogously to avoid any conflicting decision and multiplicity of
proceedings.

E 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 Origina!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
F
terms with no order as to costs.
Nidhi Jain Appeals and Wric Pecition disposed of.

G

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