Case: Union Of India  Vs. K.P. Singh

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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. The moot question for our consideration is: whetherthe medical doctors serving as Commissioned Officers in Armed Forces are covered by the Ministry ofResolution dated 30th August 2008 or Ministry ofResolution dated 29th August 2008?t issue is conclusively answered by the Tribunal in Col.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.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.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:this Court should itself examine the gamut of arguments regarding applicability of DACP Scheme even to Doctors serving as Commissioned Officers in AMCCadre. 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.