1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8047 Of 2018
(@ C.A.Diary No.34810/2015)
COL. IVS GAHLOT ...APPELLANT(S)
VERSUS
UNION OF INDIA AND ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed questioning the
judgment dated 20.07.2015 of Armed Forces Tribunal,
Principal Bench, Delhi by which O.A. No. 428/2013
filed by the appellant has been dismissed. The
appellant was commissioned in the army in Armed
Forces Medical Services (AFMC) on 06.04.1984,
received his promotion to the rank of Colonel with
effect from 01.01.2007. On 15.11.2011 the appellant
was considered for promotion to the rank of Brigadier
2
by Promotion Board (Medical) but could not be
selected for promotion. Appellant had filed a
statutory complaint against the nonpromotion by the
Board. The competent authority duly examined the
statutory complaint and by decision dated 08.04.2013
granted partial redress by expunsion of the entire
assessment of the SRO in CR 2010. On 19.06.2013,
appellant was considered for promotion by Review
Promotion Board (Medical) but could not be selected.
Being aggrieved by nonpromotion, appellant filed
O.A.No.428/2013. The O.A. has been dismissed by the
Armed Forces Tribunal vide judgment dated 20.07.2015
aggrieved by said judgment this appeal has been
filed.
2. The appellant's case before the Tribunal was
that in his consideration for promotion he was denied
marks for Ph.D. degree in Anthropology (Science)
awarded to him by Berhampur University in 1998. He
further questions non granting of any mark for his
Post Graduate training qualification obtained from
G.S.V.M. Medical College, Kanpur and further no marks
3
were awarded on his Master degree in Personnel
Management in 2005 obtained from Pune University. The
Tribunal although accepted the claim of grant of mark
for Master degree in Personnel Management but
rejected the claim of the appellant for grant of any
mark for Ph.D. degree as well as Post Graduate
training in Pediatrics.
3. Shri Yashank P. Adhyaru, learned senior advocate
appearing for the appellant contends that the Ph.D.
degree awarded by Berhampur University, which
university was competent to award Ph.D. degree, was
fully entitled to be awarded marks by Promotion Board
(Medical). He submits that the grant of Ph.D. degree
was not dependent on any recognition by Medical
Council of India. Relying on a letter dated
15.12.2017 addressed by Government of India to the
Director (Medical), Central Organisation ECHS, Delhi
Cantt., where it has been clarified that Medical
Council of India has informed that recognition of
Ph.D. degree does not come under the purview of
Medical Council of India, it is submitted that the
4
denial of marks to the appellant was illegal. He
further submits that Post Graduate training obtained
from a recognised medical institution by the
appellant was also entitled to be awarded marks. He
further submits that the promotion policy which was
earlier issued in the year 2004 could not have been
reviewed before five years as was contemplated by
policy dated 14.01.2004. The amendment of policy by
subsequent policy dated 22.05.2006 was not valid. He
submits that had the appellant been granted the marks
by Promotion Board (Medical) on the aforesaid two
counts he would have surely been promoted to the rank
of Brigadier. Non promotion had adversely affected
him which needs to be redressed by this Court.
4. Learned counsel appearing for Union of India
refuting the above submission contends that Ph.D.
degree obtained by appellant by Berhampur University
is not recognised by Medical Council of India as per
Medical Council of India Act, 1956, hence, no error
has been committed by the Promotion Board (Medical)
5
in not rewarding any marks to the appellant. It is
further contended that the Post Graduate Training
which is relied by the appellant is also not training
of any integrated course obtained by the appellant
after taking study leave, nor any certificate of
passing the training course has been filed by the
appellant to make him eligible to award of any mark
on the Post Graduate training. He submits that
promotion policy can be changed from time to time and
there was no error in modification of the promotion
policy in the year 2006.
5. We have considered the submissions of the
learned counsel for the parties and perused the
records.
6. The right to be considered for promotion in
accordance with the rules for promotion is right of
every officer and employee. In the present case there
is no denial that appellant was considered by
Promotion Board (Medical) on 15.11.2011 and
6
thereafter again by Review Promotion Board (Medical)
on 19.06.2013. Appellant's case is that had he been
granted one mark each for the Ph.D. degree and Post
Graduation training course, he could have been
definitely in the list of promoted officer and denial
of marks on aforesaid two counts was illegal. The
Tribunal committed error in not considering the above
claim in accordance with law.
7. We need to first consider the promotion policy
under which the appellant's claim was considered. The
consideration of each officer has to be in accordance
with the promotion policy as in existence and
applicable to Armed Forces Officers (Medical). The
promotion policy dated 14.01.2004 is brought on
record as Annexure A5.
8. In the present case, we are concerned with
paragraphs 11, 12 and last line of paragraph 18.
Paragraph 11 deals with allocation of marks on
different qualifications. Two year full time training
program is mentioned as item No.(d) in table of the
7
qualifications. It is useful to extract the aforesaid
item No.(d) of the aforesaid table:
“Qualifications: Officers in possession
of the following academic will be awarded
marks, as mentioned against each:
1 Qualification Marks
(d) Twoyear full time
training program during
study leave in
India/Abroad in a
medical field from an
institution/university
recognized by a
statutory body
2
”
9. Paragraph 12 refers to various academic
achievements which includes Doctor of
Philosophy(Ph.D.) which is to the following effect:
“12. Marks will be awarded for possessing
any one of the academic achievements as
given below:
(a) Master of Chirurgery(M.Ch.) 3
(b) Doctorate in Medicine(DM) 3
(c) Doctor of Philosophy(Ph.D) 3
(d) Diplomate of National Board 3
(DNB)(SuperSpeciality subject)
(e) Two years training during study 3
leave in a specialized field
8
of medical sciences/certificate
of training from an institute/
university recognized by a
statutory body.
Note: If an officer is having more than
one of the abovementioned
qualifications, marks for only one
qualification will be credited.”
10. The above policy was issued on 14.01.2004 and in
paragraph 18 following was stipulated "the policy
will be reviewed after five years".
11. The above policy was amended by Order dated
22.05.2006 heading of which itself mentioned
"amendment to promotion policy dated 14th January
2004:AFMS Officers.”
12. Amendments were made in paragraph 11 and
paragraph 12 which are relevant in the present case.
For existing paragraph 11, new paragraph 11 was
substituted which provided in clause (d) that for
"twoyear full time structured training program
during study leave in India/Abroad in a medical field
9
from an institution/university recognized by a
statutory body, one mark shall be allocated. For
existing paragraph 12, new paragraph was substituted
which is to the following effect:
“12. Officers in possession of any one of
the following academic achievements will be
awarded one (1) mark.
(a) Master of Chirugury(M.Ch) recognized by
MCI
(b) Doctorate in Medicine(DM) recognized by
MCI
(c) Doctor of Philosphy(Ph.D) recognized by
MCI
(d) Diplomate of National Board(DNB)
(Superspeciality subject)”
13. At the outset, we may consider the submission
raised by the appellant that since the policy dated
14.01.2004 contemplated that the policy will be
reviewed after five years, there was no occasion for
the review of the policy after two years only. There
cannot be any dispute that it is the authority of the
employer to frame promotion policy for promotion of
its officers and employees. When an employer has
power to frame policy it has inherent power to change
10
the policy from time to time. This Court in Hardev
Singh Vs. Union of India and another, (2011) 10 SCC
121 laid down that it is always open to an employer
to change its policy in relation to giving promotion
to the employees. The above case was also a case of
promotion of officers of Indian Army. A new promotion
policy dated 31.12.2008 with regard to promotion was
issued changing the criteria for promotion where in
place of value judgment weightage were to be given on
different aspects, repelling the challenge to new
policy following was laid down in paragraphs 25 & 26,
which is to the following effect:
“25. In our opinion, it is always open to
an employer to change its policy in
relation to giving promotion to the
employees. This Court would normally not
interfere in such policy decisions. We
would like to quote the decision of this
Court in Virender S.Hooda Vs. State of
Haryana, (1999) 3 SCC 696 where this
Court had held in para 4 of the judgment
that:
"4....When a policy has been declared
by the State as to the manner of
filling up the post and that policy is
declared in terms of rules and
instructions issued to the Public
Service Commission from time to time
11
and so long as these instructions are
not contrary to the rules, the
respondents ought to follow the same.”
26.Similarly, in Balco Employees' Union
Vs. Union of India, (2002) 2 SCC 333 it
has been held that a court cannot strike
down a policy decision taken by the
Government merely because it feels that
another policy would have been fairer or
wiser or more scientific or logical. It
is not within the domain of the court to
weigh the pros and cons of the policy or
to test the degree of its beneficial or
equitable disposition.”
14. The stipulation in the policy dated 14.01.2004
that policy will be reviewed after five years was in
no manner a fetter on right of the Government to
review the policy as and when occasion arose. There
was no statutory restriction on the Government from
reviewing the policy even before five years. We fully
approve the view of the Tribunal that the policy
dated 14.01.2004 could have rightly been amended in
the year 2006.
15. Furthermore, the earlier policy was issued on
14.01.2004 and in accordance with the appellant, it
could have been reviewed only after five years.
12
Admittedly the appellant came for consideration by
the Promotion Board on 15.11.2011 i.e. much after
five years from the issue of the policy on
14.01.2004. At the time when appellant was considered
the amendment dated 22.05.2006 was in force. An
officer has to be considered in accordance with the
policy as prevalent at the time of his consideration.
Hence, we do not find any error in consideration of
the claim of the appellant as per the amended policy
dated 22.05.2006.
16. Now, we come to the claim of the appellant on the
basis of Ph.D. degree obtained from Berhampur
University in Anthropology (Science). Berhampur
University like any other university as per
University Grants Commission Act, 1956 was fully
competent to institute any degree including Ph.D.
degree. In the policy which was issued on 14.01.2004,
on any Ph.D. degree a candidate was eligible for
grant of three marks. Amendment made by Order dated
22.05.2006 the eligibility has been restricted to
"Doctor of Philosophy(Ph.D.) recognised by Medical
13
Council of India". No exception can be taken to the
amendment by which only those Ph.D. degrees are
eligible for one mark which are recognised by Medical
Council of India. There is a rational for
restricting the award of marks only on those Ph.D.
degrees which are recognised by the Medical Council
of India. Medical Council of India recognises
medical degrees awarded by different universities and
institutions under the Medical Council of India Act,
1956. The Promotion Policy dated 22.05.2006 is for
promoting officers belonging to Armed Forces Medical
Services (AFMS), hence restricting the award of marks
to those Ph.D., which have been recognised by Medical
Council of India has object and purpose.
17. Learned counsel for the appellant had submitted
that the Medical Council of India does not recognise
any Ph.D. degree for which he has placed reliance on
the letter dated 15.12.2017 addressed by the
Government of India, Ministry of Health & Family
Welfare to the Director (Medical), Central
Organisation ECHS, Delhi Cantt. This Court on
14
06.04.2018 directed the respondent to obtain
instructions with regard to the aforesaid letter
dated 15.12.2017. By letter dated 15.12.2017
addressed to the appellant, a copy of reply received
from the Medical Council of India dated 07.12.2017
was forwarded. A Joint Secretary to Medical Council
of India issued the letter dated 07.12.2017 which is
to the following effect:
“The Secretary to the
Govt. of India,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi
Kind Atten:Sh.D.V.K.Rao, Under
Secretary(MEI)
Subject: Recognition of Ph.D. Degree
request of Col. Indra Veer Singh Gahlot
– Regarding
Sir,
Please refer to your letter
No.Z.20015/15/2015MEI(FST143472) dated
01.11.2017, on the subject noted above.
In this regard, this is to inform
you that the matter with regard to
recognition of Ph.D. Degree does not come
under the purview of Medical Council of
India.
Yours faithfully
Sd/xxxxx
15
(Dr. Rajendra Wabale)
Joint Secretary”
18. Learned counsel for the respondent has referred
to Indian Medical Council Act, 1956. Section 11 of
the Medical Council of India Act pertains to
recognition of medical qualifications granted by
universities or medical institutions in India.
Section 11 is as follows:
“11.Recognition of medical
qualifications granted by Universities
or medical institutions in India.
(1) The medical qualifications granted by
any University or medical insitution in
India which are included in the First
Schedule shall be recognised medical
qualifications for the purposes of this
Act.
(2) Any University or medical institution
in India which grants a medical
qualification not included in the First
Schedule may apply to the Central
Government to have such qualification
recognised, and the Central Government,
after consulting the Council, may, by
notification in the Official Gazette,
amend the First Schedule so as to include
such qualification therein, and any such
notification may also direct that an
entry shall be made in the last column of
the First Schedule against such medical
qualification declaring that it shall be
16
a recognised medical qualification only
when granted after a specified date.”
19. Section 11 of the Act refers to the First
Schedule. The heading of the First Schedule is
"recognized medical qualifications granted by
universities or medical institutions in India". The
First Schedule contains list of various universities
or medical institutions of India which contains a
column "recognised medical qualifications". Berhampur
University is also one of the universities mentioned
in the Schedule. The perusal of Schedule A indicates
that although various medical degrees have been
mentioned in the column "recognised medical
qualifications" but qualification of Ph.D. in
Anthropology(Science) is not included in the
recognised medical qualifications for Berhampur
University.
20. Learned counsel for the appellant referring to
the letter dated 15.12.2017 read with letter dated
07.12.2017 of the Medical Council of India contends
17
that since Medical Council of India does not
recognise Ph.D. Degree, Ph.D. Degree awarded by
Berhampur University could not have been ignored.
Section 11 of the Medical Council of India Act, 1956,
as noticed above, provides for recognition of medical
qualifications granted by universities or medical
institutions in India in First Schedule to the Act
contains list of universities and medical
institutions. Berhampur University is also one of the
universities, which finds place in the First
Schedule. Various medical courses of Berhampur
University find place in the First Schedule but there
is no mention of any Ph.D. degree. The list of
recognised medical courses of Berhampur University is
as follows:
University or
Medical
Institution
Recognised
Medical
Qualification
Abbreviation for
Registration
Berhampur
University
Bachelor of
Medicine and
Bachelor of
Surgery
Diploma in
Orthopaedics
M.B.B.S.,
Berhampur
D.Orth.,
Berhampur
18
Diploma in Child
Health
Doctor of
Medicine
(Physiology)
Master of Surgery
(Orthopaedics)
Doctor of
Medicine
(Paediatrics)
Master of Surgery
(General Surgery)
Doctor of
Medicine (General
Medicine)
Doctor of
Medicine
(Pharmacology)
Doctor of
Medicine
(Pathology)
Master of Surgery
(Anatomy)
Master of Surgery
(E.N.T.)
Doctor of
Medicine
(Forensic
Medicine and
Toxicology)
D.C.H., Berhampur
M.D. (Physiology)
M.S.
(Orthopaedics)
M.D.
(Paediatrics)
M.S. (General
Surgery)
M.D. (General
Medicine)
M.D.
(Pharmacology)
M.D. (Pathology)
M.S. (Anatomy)
M.S. (E.N.T.)
M.D. (Forensic,
Medicine and
Toxicology)
19
Doctor of
Medicine (Social
and Preventive
Medicine)
Doctor of
Medicine
(Anaesthesiology)
Doctor of
Medicine
(Obstetrics and
Gynaecology)
Doctor of
Medicine
(Microbiology)
Doctor of
Medicine
(Dermatology,
M.D. (S.P.M.)
(M.K.C.G.)
Medical College,
Berhampur granted
from 1121974).
M.D. (Anaes.)
M.D. (Obst. And
Gynae)
(This shall be a
recognised
qualification
when granted in
or after 1975)
M.D.
(Microbiology)
(This shall be a
recognized
medical
qualification
when granted by
Berhampur
University in
respect of the
students being
trained at
M.K.C.G. Medical
College,
Berhampur, Orissa
on or after
1990.)
M.D. (D.V.L.)
(This shall be a
recognized
20
Venerology and
Leprosy)
medical
qualification
when granted by
Berhampur
University in
respect of
students being
trained at
M.K.C.G. Medical
College,
Berhampur, Orissa
on or after
1991.)
21. Whereas with regard to various medical
institutions like All India Institute of Medical
Sciences and Sree Chitra Thirunal Institute for
Medical Science and Technology, Thiruvananthapura,
there are mention of various Ph.D. courses. It is
useful to refer to relevant extract from First
Schedule with regard to the few Ph.D. courses
recognised in All India Institute of Medical Sciences
and Sree Chitra Thirunal Institute for Medical
Science and Technology, Thiruvananthapura, which are
as follows:
21
University or
Medical
Institution
Recognised
Medical
Qualification
Abbreviation for
Registration
All India
Institute of
Medical Sciences
Doctor of
Philosophy
(Anatomy)
Doctor of
Philosophy
(Biochemistry)
Doctor of
Philosophy
(Microbiology)
Doctor of
Philosophy
(Pathology)
Doctor of
Philosophy
(Physiology)
and 38 other
fields.
Ph.D. (Anat.)
Ph.D. (Biochem.)
Ph.D. (Micro.)
Ph.D. (Patho.)
Ph.D.
(Physiology)
Sree Chitra
Thirunal
Institute for
Medical Science
and Technology,
Thiruvananthapura
Doctor of
Philosophy
(Biochemistry)
Doctor of
Philosophy
(Microbiology)
Doctor of
Philosophy
(Pathology)
Ph.D. (Biochem.)
Ph.D. (Micro.)
Ph.D. (Patho.)
22. There being Ph.D. degree courses recognized for
22
medical institutions in the First Schedule of the
Medical Council of India Act, 1956, we cannot find
any fault in the restriction imposed by policy dated
22.05.2006 restricting award of marks only to the
Ph.D. degrees recognized by Medical Council of India.
Coming to the letter dated 15.12.2017 which in turn
refers to the letter dated 07.12.2017 of Medical
Council of India, the letter mentions that
recognition of Ph.D. degree does not come under the
purview of Medical Council of India. The Medical
Council of India in its First Schedule recognizes
medical courses which also contains various Ph.D.
courses. It may be true that Ph.D. degree awarded to
a candidate needs no recognition from the Medical
Council of India but for the purposes of this case,
the marks can be claimed by a candidate in promotion
only when the Ph.D. course is recognized by Medical
Council of India. Thus the letter dated
15.12.2017/07.12.2017 cannot help the appellant in
the present case. Moreover, any communication issued
by Joint Secretary of Medical Council of India cannot
23
be given any precedence on the clear statutory
provisions contained in Section 11 read with First
Schedule of Medical Council of India Act, 1956.
23. Now, we come to the Post Graduate training
program on which the appellant is also claiming
allocation of marks. Two year full time training
program to be eligible for award of one mark required
to fulfill following conditions:
a) full time structured training program.
b) during study leave in India/abroad.
c) in a medical field from an
institution/university recognised
by statutory body.
24. The appellant has filed certificate as Annexure
A1 dated 11.12.1995 issued by Professor and Head,
Department of Pediatrics, G.S.V.M. Medical College,
Kanpur, which is to the following effect:
“ Department of Pediatrics
Children's hospital: G.S.V.M. Medical
College: Kanpur – 208002
24
Dated:11.12.1995
CERTIFICATE
Certified that Indra Veer Singh Gahlot
had been working in Pediatrics from
March, 1991 till November, 1993. The
Department of pediatrics is recognized
for M.D. Pediatrics and Diploma Courses.
The department is maintaining studentteacher
ratio of 1:1 including Dr. Indra
Veer Singh Gahlot. During the period of
stay of Dr. Gahlot, Prof.G.P.Mathur was
the Head of the Department.
During the period of his stay, Dr.
Gahlot was doing emergency duties
independently. He had chances to perform
exchangeblood transfusions in the
premature Baby Nursery. He also
participated in the P.G.teaching
programme.
Sd/(Illegible)
Sarla Mathur
Prof.& Head”
25. The above certificate does not indicate that
appellant completed full time structured training
programme.
26. The appellant contended that he was granted
permission to attend the training program but there
25
is no material to indicate that he was granted two
years study leave to join two years structured
training program. The certificate dated 11.12.1995 as
claimed by appellant does not fulfill the essential
conditions as laid down in paragraph 11 of the Order
dated 22.05.2006 to make appellant eligible for one
mark. We thus do not find any error in the Promotion
Board (Medical) not allocating one mark for two years
training program. Armed Forces Tribunal did not
commit any error in rejecting the above claim also.
We thus do not find any error in the judgment of
Armed Forces Tribunal warranting interference by this
Court in exercise of jurisdiction under Article 136
of the Constitution of India.
27. The Civil Appeal is dismissed.
..........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
AUGUST 06,2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8047 Of 2018
(@ C.A.Diary No.34810/2015)
COL. IVS GAHLOT ...APPELLANT(S)
VERSUS
UNION OF INDIA AND ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed questioning the
judgment dated 20.07.2015 of Armed Forces Tribunal,
Principal Bench, Delhi by which O.A. No. 428/2013
filed by the appellant has been dismissed. The
appellant was commissioned in the army in Armed
Forces Medical Services (AFMC) on 06.04.1984,
received his promotion to the rank of Colonel with
effect from 01.01.2007. On 15.11.2011 the appellant
was considered for promotion to the rank of Brigadier
2
by Promotion Board (Medical) but could not be
selected for promotion. Appellant had filed a
statutory complaint against the nonpromotion by the
Board. The competent authority duly examined the
statutory complaint and by decision dated 08.04.2013
granted partial redress by expunsion of the entire
assessment of the SRO in CR 2010. On 19.06.2013,
appellant was considered for promotion by Review
Promotion Board (Medical) but could not be selected.
Being aggrieved by nonpromotion, appellant filed
O.A.No.428/2013. The O.A. has been dismissed by the
Armed Forces Tribunal vide judgment dated 20.07.2015
aggrieved by said judgment this appeal has been
filed.
2. The appellant's case before the Tribunal was
that in his consideration for promotion he was denied
marks for Ph.D. degree in Anthropology (Science)
awarded to him by Berhampur University in 1998. He
further questions non granting of any mark for his
Post Graduate training qualification obtained from
G.S.V.M. Medical College, Kanpur and further no marks
3
were awarded on his Master degree in Personnel
Management in 2005 obtained from Pune University. The
Tribunal although accepted the claim of grant of mark
for Master degree in Personnel Management but
rejected the claim of the appellant for grant of any
mark for Ph.D. degree as well as Post Graduate
training in Pediatrics.
3. Shri Yashank P. Adhyaru, learned senior advocate
appearing for the appellant contends that the Ph.D.
degree awarded by Berhampur University, which
university was competent to award Ph.D. degree, was
fully entitled to be awarded marks by Promotion Board
(Medical). He submits that the grant of Ph.D. degree
was not dependent on any recognition by Medical
Council of India. Relying on a letter dated
15.12.2017 addressed by Government of India to the
Director (Medical), Central Organisation ECHS, Delhi
Cantt., where it has been clarified that Medical
Council of India has informed that recognition of
Ph.D. degree does not come under the purview of
Medical Council of India, it is submitted that the
4
denial of marks to the appellant was illegal. He
further submits that Post Graduate training obtained
from a recognised medical institution by the
appellant was also entitled to be awarded marks. He
further submits that the promotion policy which was
earlier issued in the year 2004 could not have been
reviewed before five years as was contemplated by
policy dated 14.01.2004. The amendment of policy by
subsequent policy dated 22.05.2006 was not valid. He
submits that had the appellant been granted the marks
by Promotion Board (Medical) on the aforesaid two
counts he would have surely been promoted to the rank
of Brigadier. Non promotion had adversely affected
him which needs to be redressed by this Court.
4. Learned counsel appearing for Union of India
refuting the above submission contends that Ph.D.
degree obtained by appellant by Berhampur University
is not recognised by Medical Council of India as per
Medical Council of India Act, 1956, hence, no error
has been committed by the Promotion Board (Medical)
5
in not rewarding any marks to the appellant. It is
further contended that the Post Graduate Training
which is relied by the appellant is also not training
of any integrated course obtained by the appellant
after taking study leave, nor any certificate of
passing the training course has been filed by the
appellant to make him eligible to award of any mark
on the Post Graduate training. He submits that
promotion policy can be changed from time to time and
there was no error in modification of the promotion
policy in the year 2006.
5. We have considered the submissions of the
learned counsel for the parties and perused the
records.
6. The right to be considered for promotion in
accordance with the rules for promotion is right of
every officer and employee. In the present case there
is no denial that appellant was considered by
Promotion Board (Medical) on 15.11.2011 and
6
thereafter again by Review Promotion Board (Medical)
on 19.06.2013. Appellant's case is that had he been
granted one mark each for the Ph.D. degree and Post
Graduation training course, he could have been
definitely in the list of promoted officer and denial
of marks on aforesaid two counts was illegal. The
Tribunal committed error in not considering the above
claim in accordance with law.
7. We need to first consider the promotion policy
under which the appellant's claim was considered. The
consideration of each officer has to be in accordance
with the promotion policy as in existence and
applicable to Armed Forces Officers (Medical). The
promotion policy dated 14.01.2004 is brought on
record as Annexure A5.
8. In the present case, we are concerned with
paragraphs 11, 12 and last line of paragraph 18.
Paragraph 11 deals with allocation of marks on
different qualifications. Two year full time training
program is mentioned as item No.(d) in table of the
7
qualifications. It is useful to extract the aforesaid
item No.(d) of the aforesaid table:
“Qualifications: Officers in possession
of the following academic will be awarded
marks, as mentioned against each:
1 Qualification Marks
(d) Twoyear full time
training program during
study leave in
India/Abroad in a
medical field from an
institution/university
recognized by a
statutory body
2
”
9. Paragraph 12 refers to various academic
achievements which includes Doctor of
Philosophy(Ph.D.) which is to the following effect:
“12. Marks will be awarded for possessing
any one of the academic achievements as
given below:
(a) Master of Chirurgery(M.Ch.) 3
(b) Doctorate in Medicine(DM) 3
(c) Doctor of Philosophy(Ph.D) 3
(d) Diplomate of National Board 3
(DNB)(SuperSpeciality subject)
(e) Two years training during study 3
leave in a specialized field
8
of medical sciences/certificate
of training from an institute/
university recognized by a
statutory body.
Note: If an officer is having more than
one of the abovementioned
qualifications, marks for only one
qualification will be credited.”
10. The above policy was issued on 14.01.2004 and in
paragraph 18 following was stipulated "the policy
will be reviewed after five years".
11. The above policy was amended by Order dated
22.05.2006 heading of which itself mentioned
"amendment to promotion policy dated 14th January
2004:AFMS Officers.”
12. Amendments were made in paragraph 11 and
paragraph 12 which are relevant in the present case.
For existing paragraph 11, new paragraph 11 was
substituted which provided in clause (d) that for
"twoyear full time structured training program
during study leave in India/Abroad in a medical field
9
from an institution/university recognized by a
statutory body, one mark shall be allocated. For
existing paragraph 12, new paragraph was substituted
which is to the following effect:
“12. Officers in possession of any one of
the following academic achievements will be
awarded one (1) mark.
(a) Master of Chirugury(M.Ch) recognized by
MCI
(b) Doctorate in Medicine(DM) recognized by
MCI
(c) Doctor of Philosphy(Ph.D) recognized by
MCI
(d) Diplomate of National Board(DNB)
(Superspeciality subject)”
13. At the outset, we may consider the submission
raised by the appellant that since the policy dated
14.01.2004 contemplated that the policy will be
reviewed after five years, there was no occasion for
the review of the policy after two years only. There
cannot be any dispute that it is the authority of the
employer to frame promotion policy for promotion of
its officers and employees. When an employer has
power to frame policy it has inherent power to change
10
the policy from time to time. This Court in Hardev
Singh Vs. Union of India and another, (2011) 10 SCC
121 laid down that it is always open to an employer
to change its policy in relation to giving promotion
to the employees. The above case was also a case of
promotion of officers of Indian Army. A new promotion
policy dated 31.12.2008 with regard to promotion was
issued changing the criteria for promotion where in
place of value judgment weightage were to be given on
different aspects, repelling the challenge to new
policy following was laid down in paragraphs 25 & 26,
which is to the following effect:
“25. In our opinion, it is always open to
an employer to change its policy in
relation to giving promotion to the
employees. This Court would normally not
interfere in such policy decisions. We
would like to quote the decision of this
Court in Virender S.Hooda Vs. State of
Haryana, (1999) 3 SCC 696 where this
Court had held in para 4 of the judgment
that:
"4....When a policy has been declared
by the State as to the manner of
filling up the post and that policy is
declared in terms of rules and
instructions issued to the Public
Service Commission from time to time
11
and so long as these instructions are
not contrary to the rules, the
respondents ought to follow the same.”
26.Similarly, in Balco Employees' Union
Vs. Union of India, (2002) 2 SCC 333 it
has been held that a court cannot strike
down a policy decision taken by the
Government merely because it feels that
another policy would have been fairer or
wiser or more scientific or logical. It
is not within the domain of the court to
weigh the pros and cons of the policy or
to test the degree of its beneficial or
equitable disposition.”
14. The stipulation in the policy dated 14.01.2004
that policy will be reviewed after five years was in
no manner a fetter on right of the Government to
review the policy as and when occasion arose. There
was no statutory restriction on the Government from
reviewing the policy even before five years. We fully
approve the view of the Tribunal that the policy
dated 14.01.2004 could have rightly been amended in
the year 2006.
15. Furthermore, the earlier policy was issued on
14.01.2004 and in accordance with the appellant, it
could have been reviewed only after five years.
12
Admittedly the appellant came for consideration by
the Promotion Board on 15.11.2011 i.e. much after
five years from the issue of the policy on
14.01.2004. At the time when appellant was considered
the amendment dated 22.05.2006 was in force. An
officer has to be considered in accordance with the
policy as prevalent at the time of his consideration.
Hence, we do not find any error in consideration of
the claim of the appellant as per the amended policy
dated 22.05.2006.
16. Now, we come to the claim of the appellant on the
basis of Ph.D. degree obtained from Berhampur
University in Anthropology (Science). Berhampur
University like any other university as per
University Grants Commission Act, 1956 was fully
competent to institute any degree including Ph.D.
degree. In the policy which was issued on 14.01.2004,
on any Ph.D. degree a candidate was eligible for
grant of three marks. Amendment made by Order dated
22.05.2006 the eligibility has been restricted to
"Doctor of Philosophy(Ph.D.) recognised by Medical
13
Council of India". No exception can be taken to the
amendment by which only those Ph.D. degrees are
eligible for one mark which are recognised by Medical
Council of India. There is a rational for
restricting the award of marks only on those Ph.D.
degrees which are recognised by the Medical Council
of India. Medical Council of India recognises
medical degrees awarded by different universities and
institutions under the Medical Council of India Act,
1956. The Promotion Policy dated 22.05.2006 is for
promoting officers belonging to Armed Forces Medical
Services (AFMS), hence restricting the award of marks
to those Ph.D., which have been recognised by Medical
Council of India has object and purpose.
17. Learned counsel for the appellant had submitted
that the Medical Council of India does not recognise
any Ph.D. degree for which he has placed reliance on
the letter dated 15.12.2017 addressed by the
Government of India, Ministry of Health & Family
Welfare to the Director (Medical), Central
Organisation ECHS, Delhi Cantt. This Court on
14
06.04.2018 directed the respondent to obtain
instructions with regard to the aforesaid letter
dated 15.12.2017. By letter dated 15.12.2017
addressed to the appellant, a copy of reply received
from the Medical Council of India dated 07.12.2017
was forwarded. A Joint Secretary to Medical Council
of India issued the letter dated 07.12.2017 which is
to the following effect:
“The Secretary to the
Govt. of India,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi
Kind Atten:Sh.D.V.K.Rao, Under
Secretary(MEI)
Subject: Recognition of Ph.D. Degree
request of Col. Indra Veer Singh Gahlot
– Regarding
Sir,
Please refer to your letter
No.Z.20015/15/2015MEI(FST143472) dated
01.11.2017, on the subject noted above.
In this regard, this is to inform
you that the matter with regard to
recognition of Ph.D. Degree does not come
under the purview of Medical Council of
India.
Yours faithfully
Sd/xxxxx
15
(Dr. Rajendra Wabale)
Joint Secretary”
18. Learned counsel for the respondent has referred
to Indian Medical Council Act, 1956. Section 11 of
the Medical Council of India Act pertains to
recognition of medical qualifications granted by
universities or medical institutions in India.
Section 11 is as follows:
“11.Recognition of medical
qualifications granted by Universities
or medical institutions in India.
(1) The medical qualifications granted by
any University or medical insitution in
India which are included in the First
Schedule shall be recognised medical
qualifications for the purposes of this
Act.
(2) Any University or medical institution
in India which grants a medical
qualification not included in the First
Schedule may apply to the Central
Government to have such qualification
recognised, and the Central Government,
after consulting the Council, may, by
notification in the Official Gazette,
amend the First Schedule so as to include
such qualification therein, and any such
notification may also direct that an
entry shall be made in the last column of
the First Schedule against such medical
qualification declaring that it shall be
16
a recognised medical qualification only
when granted after a specified date.”
19. Section 11 of the Act refers to the First
Schedule. The heading of the First Schedule is
"recognized medical qualifications granted by
universities or medical institutions in India". The
First Schedule contains list of various universities
or medical institutions of India which contains a
column "recognised medical qualifications". Berhampur
University is also one of the universities mentioned
in the Schedule. The perusal of Schedule A indicates
that although various medical degrees have been
mentioned in the column "recognised medical
qualifications" but qualification of Ph.D. in
Anthropology(Science) is not included in the
recognised medical qualifications for Berhampur
University.
20. Learned counsel for the appellant referring to
the letter dated 15.12.2017 read with letter dated
07.12.2017 of the Medical Council of India contends
17
that since Medical Council of India does not
recognise Ph.D. Degree, Ph.D. Degree awarded by
Berhampur University could not have been ignored.
Section 11 of the Medical Council of India Act, 1956,
as noticed above, provides for recognition of medical
qualifications granted by universities or medical
institutions in India in First Schedule to the Act
contains list of universities and medical
institutions. Berhampur University is also one of the
universities, which finds place in the First
Schedule. Various medical courses of Berhampur
University find place in the First Schedule but there
is no mention of any Ph.D. degree. The list of
recognised medical courses of Berhampur University is
as follows:
University or
Medical
Institution
Recognised
Medical
Qualification
Abbreviation for
Registration
Berhampur
University
Bachelor of
Medicine and
Bachelor of
Surgery
Diploma in
Orthopaedics
M.B.B.S.,
Berhampur
D.Orth.,
Berhampur
18
Diploma in Child
Health
Doctor of
Medicine
(Physiology)
Master of Surgery
(Orthopaedics)
Doctor of
Medicine
(Paediatrics)
Master of Surgery
(General Surgery)
Doctor of
Medicine (General
Medicine)
Doctor of
Medicine
(Pharmacology)
Doctor of
Medicine
(Pathology)
Master of Surgery
(Anatomy)
Master of Surgery
(E.N.T.)
Doctor of
Medicine
(Forensic
Medicine and
Toxicology)
D.C.H., Berhampur
M.D. (Physiology)
M.S.
(Orthopaedics)
M.D.
(Paediatrics)
M.S. (General
Surgery)
M.D. (General
Medicine)
M.D.
(Pharmacology)
M.D. (Pathology)
M.S. (Anatomy)
M.S. (E.N.T.)
M.D. (Forensic,
Medicine and
Toxicology)
19
Doctor of
Medicine (Social
and Preventive
Medicine)
Doctor of
Medicine
(Anaesthesiology)
Doctor of
Medicine
(Obstetrics and
Gynaecology)
Doctor of
Medicine
(Microbiology)
Doctor of
Medicine
(Dermatology,
M.D. (S.P.M.)
(M.K.C.G.)
Medical College,
Berhampur granted
from 1121974).
M.D. (Anaes.)
M.D. (Obst. And
Gynae)
(This shall be a
recognised
qualification
when granted in
or after 1975)
M.D.
(Microbiology)
(This shall be a
recognized
medical
qualification
when granted by
Berhampur
University in
respect of the
students being
trained at
M.K.C.G. Medical
College,
Berhampur, Orissa
on or after
1990.)
M.D. (D.V.L.)
(This shall be a
recognized
20
Venerology and
Leprosy)
medical
qualification
when granted by
Berhampur
University in
respect of
students being
trained at
M.K.C.G. Medical
College,
Berhampur, Orissa
on or after
1991.)
21. Whereas with regard to various medical
institutions like All India Institute of Medical
Sciences and Sree Chitra Thirunal Institute for
Medical Science and Technology, Thiruvananthapura,
there are mention of various Ph.D. courses. It is
useful to refer to relevant extract from First
Schedule with regard to the few Ph.D. courses
recognised in All India Institute of Medical Sciences
and Sree Chitra Thirunal Institute for Medical
Science and Technology, Thiruvananthapura, which are
as follows:
21
University or
Medical
Institution
Recognised
Medical
Qualification
Abbreviation for
Registration
All India
Institute of
Medical Sciences
Doctor of
Philosophy
(Anatomy)
Doctor of
Philosophy
(Biochemistry)
Doctor of
Philosophy
(Microbiology)
Doctor of
Philosophy
(Pathology)
Doctor of
Philosophy
(Physiology)
and 38 other
fields.
Ph.D. (Anat.)
Ph.D. (Biochem.)
Ph.D. (Micro.)
Ph.D. (Patho.)
Ph.D.
(Physiology)
Sree Chitra
Thirunal
Institute for
Medical Science
and Technology,
Thiruvananthapura
Doctor of
Philosophy
(Biochemistry)
Doctor of
Philosophy
(Microbiology)
Doctor of
Philosophy
(Pathology)
Ph.D. (Biochem.)
Ph.D. (Micro.)
Ph.D. (Patho.)
22. There being Ph.D. degree courses recognized for
22
medical institutions in the First Schedule of the
Medical Council of India Act, 1956, we cannot find
any fault in the restriction imposed by policy dated
22.05.2006 restricting award of marks only to the
Ph.D. degrees recognized by Medical Council of India.
Coming to the letter dated 15.12.2017 which in turn
refers to the letter dated 07.12.2017 of Medical
Council of India, the letter mentions that
recognition of Ph.D. degree does not come under the
purview of Medical Council of India. The Medical
Council of India in its First Schedule recognizes
medical courses which also contains various Ph.D.
courses. It may be true that Ph.D. degree awarded to
a candidate needs no recognition from the Medical
Council of India but for the purposes of this case,
the marks can be claimed by a candidate in promotion
only when the Ph.D. course is recognized by Medical
Council of India. Thus the letter dated
15.12.2017/07.12.2017 cannot help the appellant in
the present case. Moreover, any communication issued
by Joint Secretary of Medical Council of India cannot
23
be given any precedence on the clear statutory
provisions contained in Section 11 read with First
Schedule of Medical Council of India Act, 1956.
23. Now, we come to the Post Graduate training
program on which the appellant is also claiming
allocation of marks. Two year full time training
program to be eligible for award of one mark required
to fulfill following conditions:
a) full time structured training program.
b) during study leave in India/abroad.
c) in a medical field from an
institution/university recognised
by statutory body.
24. The appellant has filed certificate as Annexure
A1 dated 11.12.1995 issued by Professor and Head,
Department of Pediatrics, G.S.V.M. Medical College,
Kanpur, which is to the following effect:
“ Department of Pediatrics
Children's hospital: G.S.V.M. Medical
College: Kanpur – 208002
24
Dated:11.12.1995
CERTIFICATE
Certified that Indra Veer Singh Gahlot
had been working in Pediatrics from
March, 1991 till November, 1993. The
Department of pediatrics is recognized
for M.D. Pediatrics and Diploma Courses.
The department is maintaining studentteacher
ratio of 1:1 including Dr. Indra
Veer Singh Gahlot. During the period of
stay of Dr. Gahlot, Prof.G.P.Mathur was
the Head of the Department.
During the period of his stay, Dr.
Gahlot was doing emergency duties
independently. He had chances to perform
exchangeblood transfusions in the
premature Baby Nursery. He also
participated in the P.G.teaching
programme.
Sd/(Illegible)
Sarla Mathur
Prof.& Head”
25. The above certificate does not indicate that
appellant completed full time structured training
programme.
26. The appellant contended that he was granted
permission to attend the training program but there
25
is no material to indicate that he was granted two
years study leave to join two years structured
training program. The certificate dated 11.12.1995 as
claimed by appellant does not fulfill the essential
conditions as laid down in paragraph 11 of the Order
dated 22.05.2006 to make appellant eligible for one
mark. We thus do not find any error in the Promotion
Board (Medical) not allocating one mark for two years
training program. Armed Forces Tribunal did not
commit any error in rejecting the above claim also.
We thus do not find any error in the judgment of
Armed Forces Tribunal warranting interference by this
Court in exercise of jurisdiction under Article 136
of the Constitution of India.
27. The Civil Appeal is dismissed.
..........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
AUGUST 06,2018.
