MAJOR N C SINGHAL Vs. DIRECTOR GENERAL ARMED FORGES MEDICAL SERVICES NEW DELHI

JUDGEMENT

(1.) THIS appeal, by special leave, is directed against a judgment of the Delhi High Court , passed in appeal from the order of a learned single Judge of that Court partially allowing a writ petition filed by the appellant.

(2.) THE appellant, while holding medical licentiate qualification ,was taken in the Army Medical Service as an Emergency Commissioned Officer in the rank of Lieutenant on 14/12/1943. He functioned as commissioned officer for a period of three years, ten months and 26 days, and was relieved on 10/11/1947. He was again taken as a Short Service Commissioned officer on 1/06/1950, and served in that capacity for a period of 3 years, 5 months and 17 days, and he was relived on 17/11/1953, Thus the total period of his full commissioned service, both as Emergency and as Short Service Commissioned Officer, came to 7 years, 4 months and 13 days. In the year 1954, it was decided to form a reserve of medical officers to be called 'A.M.C. Reserve' and Army Instruction No. I/S dated 27/05/1954, was issued by the Government of India for that purpose. According to the instruction, the A.M.C. Reserve was divided into our classes, 'A', 'B' 'C' and 'X' Reserve Officers. Class 'C' comprised specialist officers liable to report for colour service within 60 days. THE appellant was recruited in the class 'C' service of specialists. Paragraph (13) of the Army Instruction provided that officers of the AMC Reserve service, when called for training or colour service were to receive the same pay and allowances as laid down for regular officers of the A.M.C. of the corresponding rank in the New Pay Code for the duration of training or colour service. It further provided that for the released Emergency Commissioned and Short Service Commissioned officers appointed to the Reserve, the previous full pay commissioned service would count for pay. On 1/08/1958, the appellant was granted a Reserve Commission in Class 'C' in the rank of Substantive Major under the terms and conditions of the army Instruction. THEreafter, the appellant was called to colour service, which, for all practical purposes, means whole time active service, and he reported for duty on 22/01/1963, and served from that date as a specialist in ophthalmology. As a reserve candidate, before being recalled to colour service, he had remained on training for a total period of one month. Adding the period of one month, the appellant had to his credit, "full pay commissioned service" of 7 years, 5 months and 13 days on the date of his reporting for colour service.

(3.) THE appellant's case in THE writ petition was that he was entitled to reckon his total previous full pay commissioned service for "ante-date" without any deduction for fixing his pay and rank and that THE respondents should be directed to do so. The Learned Single Judge directed THE respondents to give THE petitioner THE benefit of ante-date of 6 years, 11 months and 13 days for THE purpose of promotion. The appellant filed a Letters Patent appeal to a Division Bench of THE Court. The Bench dismissed THE appeal. The Division Bench held that para 13 of THE Army Instruction No. I/S of 1954 which provided that full pay commissioned service will count for pay has been superseded by para 7 read with para 31 of Army Instruction No. 176 of 1965. The Court said that THE appellant had only medical licentiate qualification during THE period he served as an Emergency Commissioned and Short Service Commissioned Officer, and according to para 7 of Army Instruction No. 176 of 1965, THE previous commissioned service, less than two years, alone would count for pay and promotion. The Court furTHEr held that as permited by para 8 of that instruction, a period of 18 months should be added to appellant's reckonable service for pay due to his subsequently acquiring higher qualifications and taking a post-graduate diploma in ophthalmology. Thus, according to THE Court, THE appellant was entitled to THE benefit of para 8 of THE Army Instruction No. 176, but THEn, THEre was to be a deduction of two years from his previous full pay commissioned service for purposes of pay by virtue of para 7 read with para 31 which provided that in case of A. M. C. Reserve Officers recalled to colour service during THE emergency, THE Army Instruction No. 176 will take effect from 26/10/1962, In THE matter of ante-date for promotion, T. A., leave and pay.