Central Administrative Tribunal - Bangalore
Dr M G Shivakumar Babu vs Employees State Insurance Corporation ... on 6 February, 2025
1
OA.No.170/00283/2024,
OA.No.170/00251/2024 &
OA.No.170/00488/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00283/2024,
ORIGINAL APPLICATION NO.170/00251/2024
AND
ORIGINAL APPLICATION NO.170/00488/2022
ORDER RESERVED ON 28.01.2025
DATE OF ORDER: 06.02.2025
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
ORIGINAL APPLICATION NO.170/00283/2024
1. Dr. R. Narasimha Murthy,
Since deceased by his LR (wife)
Smt. Latha Narasimha Murthy,
Aged 57 years,
Residing at No. 915,
3rd Main 'D' Block
2nd Stage Rajajinagar,
Bengaluru 560 010
2. Dr. M. Srinivasaiah, 65 years,
S/o Late Sri Mudlappa,
Retired Chief Medical Officer (NFSG)
ESIC, Model Hospital,
Rajajinagar,
Bengaluru: 560 010
kavya shree k
kavya CAT,
Bangalore
shree k2025.02.10
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OA.No.170/00283/2024,
OA.No.170/00251/2024 &
OA.No.170/00488/2022/CAT/BANGALORE
Residing at No: 13,
4th 'D' Cross,
Rajanna Layout,
Mallasandra,
Bengaluru 560 057
3. Dr. G.A. Latha, 65 years,
W/o of Sri B.R. Satyan,
Retired Chief Medical Officer (NFSG)
ESIC, Model Hospital,
Rajajinagar,
Bengaluru 560 010
Residing at No: 281,
12th Main, NTI Layout,
Vidyaranyapura,
Bengaluru 560 097
4. Dr. Lakshmi Narayana N. 65 years,
S/o Sri Narayana Swamy P,
Retired Chief Medical Officer (NFSG)
ESIC, Model Hospital,
Rajajinagar,
Bengaluru 560 010
Residing at No: 299,
'Mathruchaya' 11th Block,
2nd 'F' Main Road,
2nd Stage, Nagarabhavi,
Bengaluru 560 072
5. Dr. Mayadevi Damodar Khoday,
Aged 58 years,
W/o Sri Sarvottam Swamy,
Chief Medical Officer (NFSG)
ESI Hospital Peenya,
Bengaluru 560 058,
Residing at No: 118/A,
24th Cross, 2nd Block,
Rajajinagar,
Bengaluru 560 010
kavya shree k
kavya CAT,
Bangalore
shree k2025.02.10
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OA.No.170/00283/2024,
OA.No.170/00251/2024 &
OA.No.170/00488/2022/CAT/BANGALORE
6. Dr. Salma A. Jabeen, 52 years,
W/o Dr. H.T. Hussain,
Chief Medical Officer (NFSG)
Presently working as State Medical Officer
At Regional Office, ESIC
No: 10, Binnyfields, Binnypet,
Bengaluru: 560 023
Residing at No. 178/1,
6th Main Road,
2nd Block, R.T. Nagar,
Bengaluru 560 032 .... Applicants
(By Shri P.A. Kulkarni, Advocate)
Vs.
1. Union of India
By its Secretary,
Department of Labour and Employment,
No. 110, Shrama Shakti Bhavan,
Rafi Marg, New Delhi 110 001
2. Employees State Insurance Corporation
Panchadeep Bhavan, CIG Marg,
New Delhi 110 002
To be represented by its Chairman
3. The Director General,
Employees State Insurance Corporation
Panchadeep Bhavan, CIG Marg,
New Delhi 110 002
4. Medical Commissioner (Administration),
Employees State Insurance Corporation
Panchadeep Bhavan, CIG Marg,
New Delhi 110 002 ...Respondents
(By Shri N. Amaresh, Senior Panel Counsel)
kavya shree k
kavya CAT,
Bangalore
shree k2025.02.10
16:27:25+05'30'
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OA.No.170/00283/2024,
OA.No.170/00251/2024 &
OA.No.170/00488/2022/CAT/BANGALORE
ORIGINAL APPLICATION NO.170/00251/2024
1. Dr. M.G. Shivakumar Babu, 61 years,
S/o Late Sri T. Gangaiah,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital,
Rajajinagar,
Bengaluru 560 010.
2. Dr. S.T. Rajappa, 64 years,
S/o Sri Thimmaiah,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital,
Rajajinagar,
Bengaluru 560 010.
3. Dr. P. Sandhya, 63 years,
D/o Sri R. Puttaiah,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital,
Rajajinagar,
Bengaluru 560 010.
4. Dr. Prabhu Das, 64 years,
S/o Sri Esaiah,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital,
Rajajinagar,
Bengaluru 560 010.
5. Dr. Nagaraj A Kagali, 62 years,
S/o late Sri A.T. Kagali,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital, Rajajinagar,
Bengaluru 560 010.
kavya shree k
kavya CAT,
Bangalore
shree k2025.02.10
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OA.No.170/00283/2024,
OA.No.170/00251/2024 &
OA.No.170/00488/2022/CAT/BANGALORE
6. Dr. Ashok Kumar, 62 years,
S/o Sri A.K. Auppukuttan,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital,
Rajajinagar, Bengaluru 560 010.
7. Dr. T. Narayanaswamy, 62 years,
S/o Sri Thimma Shetty,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital,
Rajajinagar,
Bengaluru 560 010.
8. Dr. T.V. Giri, 61 years,
S/o Sri T.V. Venkateshaiah,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital,
Rajajinagar,
Bengaluru 560 010.
9. Dr. T.S. Muralidhar, 59 years,
S/o Sri T.M. Sathyanarayan Shetty,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital,
Rajajinagar,
Bengaluru 560 010.
10. Dr. H.C. Kumar, 52 years,
S/o late Sri H. Chandrashekar,
Chief Medical Officer (NFSG)
Employees State Insurance Corporation,
Model Hospital, Rajajinagar,
Bengaluru 560 010. .... Applicants
(By Shri P.A. Kulkarni, Advocate)
kavya shree k
kavya CAT,
Bangalore
shree k2025.02.10
16:27:25+05'30'
6
OA.No.170/00283/2024,
OA.No.170/00251/2024 &
OA.No.170/00488/2022/CAT/BANGALORE
Vs.
1. Union of India
By its Secretary,
Department of Labour and Employment,
No. 110, Shrama Shakti Bhavan,
Rafi Marg, New Delhi 110 001
2. Employees State Insurance Corporation
Panchadeep Bhavan, CIG Marg,
New Delhi 110 002
To be represented by its Chairman
3. The Director General,
Employees State Insurance Corporation
Panchadeep Bhavan, CIG Marg,
New Delhi 110 002
4. Medical Commissioner (Administration),
Employees State Insurance Corporation
Panchadeep Bhavan, CIG Marg,
New Delhi 110 002 ...Respondents
(By Shri N. Amaresh, Senior Panel Counsel)
ORIGINAL APPLICATION NO.170/00488/2022
Dr. M.G. Shivakumar Babu,
S/o Late Sri T. Gangaiah,
Age: 57 years,
Chief Medical Officer
Employees State Insurance Corporation,
Model Hospital, Rajajinagar,
Bengaluru 560 010. .... Applicant
(By Shri P.A. Kulkarni, Advocate)
kavya shree k
kavya CAT,
Bangalore
shree k2025.02.10
16:27:25+05'30'
7
OA.No.170/00283/2024,
OA.No.170/00251/2024 &
OA.No.170/00488/2022/CAT/BANGALORE
Vs.
1. Union of India
By its Secretary,
Department of Labour and Employment,
No. 110, Shrama Shakti Bhavan,
Rafi Marg, New Delhi 110 001
2. Employees State Insurance Corporation
Panchadeep Bhavan,
CIG Marg, New Delhi 110 002
To be represented by its Director General
3. The Director General,
Employees State Insurance Corporation
Panchadeep Bhavan, CIG Marg,
New Delhi 110 002
4. Medical Commissioner (Administration),
Employees State Insurance Corporation
Panchadeep Bhavan, CIG Marg,
New Delhi 110 002
5. DEAN,
ESIC MC Post Graduate Institute
& Medical Science Research (PGIMSR)
Model Hospital, Rajajinagar,
Bengaluru 560 010.
6. Medical Superintendent,
Employees State Insurance Corporation,
Model Hospital,
Rajajinagar, 2nd Block,
Bengaluru 560 010 ...Respondents
(By Shri N. Amaresh, Senior Panel Counsel)
kavya shree k
kavya CAT,
Bangalore
shree k2025.02.10
16:27:25+05'30'
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OA.No.170/00283/2024,
OA.No.170/00251/2024 &
OA.No.170/00488/2022/CAT/BANGALORE
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
Since common and akin issues are involved, all these matters are clubbed together, heard and disposed of by this common order.
2. OA No. 283/2024 is taken as the lead case. Facts as narrated by the applicants in the said OA No. 283/2024 are as under:
The applicants were working as Insurance Medical Officers in the Employees State Insurance (ESI) Medical Service of the Labour Department of State of Karnataka up to 01.04.2003 and were working at ESI Hospital, Rajajinagar, Bengaluru. In terms of the agreement reached between Government of Karnataka and ESI Corporation of Government of India, ESI Hospital, Rajajinagar was handed over by Government of Karnataka to ESI Corporation, Government of India with effect from 01.04.2003 and the staff members working in the hospital were given the option of joining the ESIC or returning to the Government of Karnataka service.
Those who decided to join ESIC were further required to opt to Institutional or All India Seniority in terms of the terms and kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 9 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE conditions laid down for absorption by the ESIC. All the applicants herein (applicant No. 1 since deceased on 16.02.2022 represented by his LR) at that point of time found it feasible to opt for Institutional Seniority. Applicants 2, 3 and 4 herein while working as Chief Medical Officer (Non-Functional Selection Grade) [CMO (NFSG)] at ESIC Model Hospital, Rajajinagar have retired from service with effect from 30.06.2022, 30.06.2023 and 31.12.2022, respectively. Applicants 5 and 6 are still in service in CMO (NFSG) at the respective ESI organizations. As per the policy decision of the ESI Corporation taken in 174th meeting of ESIC held on 29.05.2018, absorbed employees are required to be placed in one common All India Seniority/gradation list of CMO (NFSG) with effect from 01.06.2018. However, vide memorandum dated 21.09.2023 ESIC came out with draft gradation/seniority list in respect of Medical Officers in CMO (NFSG) of General Duty Medical Officer (GDMO) sub-cadre in pay level 13 as on 31.08.2023 without including the names of the absorbed doctors like applicants herein. Not considering the individual objections submitted by the applicants, final gradation list/seniority list dated 16.04.2024 has been issued by the competent authority. Being kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 10 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE aggrieved, the applicants have preferred OA No. 283/2024 seeking the following reliefs:
a) Quash the impugned order bearing File No: A-
24014/12/2023-Med-VI, dated 16.04.2024, Annexure-A8, passed by Director General, ESIC New Delhi, Respondent No. 3 herein.
b) Direct the respondents to re-do the seniority list of CMO (NFSG) of GDMO Sub-cadre in pay level 13 showing the position as on 01.06.2018 by including the names of the applicants based on their respective date of entry into that grade as evidenced by the ESIC Headquarters New Delhi order No: 23/2020 in No: U-11/11/(21 No.)/2012/DPC (Med.) dated 04.12.2020 Ann-A3 and then to update the same showing the position as on 31.08.2023 replacing the impugned seniority list Ann-A8.
c) Consequently, to work out the entitlement of applicants' benefit under DACP and to extend all consequential benefits including the monetary benefits as per the entitlement under the DACP scheme.
d) Pass such other order or direction that this Hon'ble Tribunal may deem it fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity."
3. The reliefs claimed in OA No. 283/2024 and OA No. 251/2024 are almost identical but the relief claimed in OA No. 488/2022 filed by Dr. M.G. Shivakumar Babu, Applicant No. 1 in OA No. 251/2024, reads thus:
kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 11 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE "a) Direct the respondents to forthwith publish the All-India seniority list of CMO NFSG scale Doctors in ESIC showing the position as on 01.06.2018 and consequential review of promotions in SAG scale for the purpose of identifying applicant's eligibility date of entry into SAG scale on par with his compares who entered that position from 29.10.2008 as evidenced by the seniority list of SAG Doctors published on 30.08.2022 as at Ann-A10.
b) Direct further the respondents to update the final All- India seniority list of SAG Doctors published under No: A- 24013/3/2022-Med-VI dated 30.08.2022 Ann-A10 in the light of the relief (a) above.
c) Direct the respondents to grant consequential relief including the monetary benefits arising out of the grant of relief
(a) & (b) above.
d) Pass such other order or direction that this Hon'ble Tribunal may deem it fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity."
4. The main defence set up by the respondents in the said OA No. 488/2022 reads as under:
"(i) If the applicant wants to be considered for promotion to the post of Medical Commissioner at par with other Medical Officers who were placed in all India seniority, he should have opted for all India seniority in the initial stage itself. The service rules and the decision taken in the 174th meeting of ESIC cannot be moulded to suit the individual requirements of any employee as the same are applicable equally to all employees.
kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 12 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE
(ii) There is no requirement of seniority list for promotion to the post of IMO-I, CMO, CMO (NFSG) & CMO (SAG). As such seniority list is not maintained for IMO Grade-I, CMO & CMO (NFSG). The seniority list of SAG is maintained as per date of promotion in SAG Grade and that too with the limited purpose to assess the suitability of filling various administrative posts the charge of which is assigned to SAG level officers as per policy/rules in that regard."
In view of the final seniority list of CMO (NFSG) published by the respondents and the challenge made to the said seniority list by the applicant in OA No. 488/2022 along with the other applicants in OA No. 251/2024, the reliefs claimed in OA No. 488/2022 does not survive for consideration.
5. Learned counsel Shri P. A. Kulkarni representing the applicants submitted that with the approval of the agenda item No. 4 regarding All India Seniority of various State Government Medical Officers absorbed in ESIC on takeover of hospitals placed in 174th meeting of ESI Corporation, the authority is duty bound to include the names of the applicants in the final gradation/seniority list of the CMO (NFSG) with effect from 01.06.2018 onwards. Hence, in the impugned final seniority list notified on 16.04.2024 names of the applicants ought to have been included taking into kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 13 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE consideration the date of their entry into CMO (NFSG) as evidenced by the Headquarters order dated 04.12.2020. Non- inclusion of the names of the applicants is discriminatory. All doctors working under ESIC form one class and there cannot be any discrimination in the matter of career prospects pursuant to the policy decision taken in the 174th meeting.
6. Learned counsel further submitted that after taking the stand that there is no requirement to maintain All India Seniority List of CMO (NFSG) in OA No. 488/2022, for the first time, after the resolution of 174th meeting, ESIC comes out with a draft seniority list relating to Medical Officers in CMO (NFSG) with GDMO sub-cadre in pay level 13 with Grade Pay of Rs. 8700 as on 31.08.2023. In the said list, names of the present applicants were not included albeit resolution of 174th meeting mandates the same. As on 01.06.2018, all the applicants herein were in service and subsequent happenings like death/retirement as in case of Applicant Nos. 1 to 4 herein in OA No. 283/2024 cannot become a bar for inclusion of their names in the draft/final seniority list as and when published, showing their instant position in the remark column.
kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 14 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE Nextly, learned counsel argued that despite interim order of stay granted by this Tribunal in OA No. 251/2024 staying the impugned memorandum dated 16.04.2024 issued by the Respondent No. 3 which has been extended from time to time and the same is in operation, the respondents have proceeded to issue the promotion order dated 30.10.2024 on the basis of the impugned memorandum dated 16.04.2024. Referring to the same, learned counsel submitted that the said act of the authority in holding the DPC and notifying the consequential promotion list dated 30.10.2024 with only All India Seniority class of the CMO (NFSG) doctors when the issue is sub-judice before this Tribunal amounts to wilful disobedience of the interim order passed by this Tribunal. Accordingly, seeks for the reliefs claimed.
7. Learned counsel Shri N. Amaresh representing the respondents argued that the applicants herein are absorbed as Medical Officers in ESI Corporation from State Government. As per the terms and conditions of the absorption, absorbed Medical Officers opting for Institutional/State Seniority were to be kept posted in hospital and they were to be considered for promotions kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 15 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE upto the level of CMO only. Medical Officers who had opted for All India Seniority were liable to be transferred on All India basis and were to be considered for the post beyond CMO i.e., to the grades of NFSG and Senior Administrative Grade (SAG). With a view to grant equal opportunity of promotion upto NFSG and SAG level to all the absorbed Medical Offices, ESIC in 174th meeting approved the placement of individual in Institutional/State seniority under All India Seniority with effect from 01.06.2018. The Corporation also approved that the Medical Officer who had earlier opted for Institutional/State Seniority would be granted financial benefits of promotion under the Dynamic Assured Career Progression (DACP) Scheme from 01.06.2018 and notional benefits to the scales of NFSG and SAG under DACP Scheme from the date of their eligibility.
8. There is no instruction/rule position available for merging the State/Institute Seniority with All India Seniority of Medical Officers. The seniority of Medical Officers in the grade of CMO (NFSG) (level 13) has been prepared for granting them promotion to the post of CMO (SAG) (level 14) in pursuant to the kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 16 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE instructions of Ministry of Labour and Employment, Government of India for convening DPC. Similarly, separate seniority list of absorbed Medical Officers in the grade of CMO (NFSG) (level 13) is under preparation for granting them promotion to the post of CMO (SAG) (level 14). Seniority has no role to play in the NFSG cadre. It is neither required for promotion nor for any selection posts. The promotion of Medical Officers is given under DACP scheme upto SAG cadre without reference to vacancy position. The Medical Officers are required to complete the required period of service in the feeder post for promotion to the next level under DACP Scheme. Learned counsel also made an effort to take support from the order passed by this Tribunal in OA No. 173/2022, DD: 09.06.2023 (Dr. M Srinivasaiah and Ors vs Union of India and Ors.). Thus, justifying the action of the respondents in issuing final gradation/seniority list dated 16.04.2024 and the subsequent promotion order dated 30.10.2024, learned counsel seeks for dismissal of the OA. In reply, learned counsel for the applicant submitted that Writ Petition No. 21820/2023 filed against the said order is pending before the Hon'ble High Court of kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 17 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE Karnataka and the same relates to financial benefits of the applicants and not to their seniority or promotion.
9. We have carefully considered the submissions made by the learned counsel appearing for the parties and perused the material on record.
10. The points that arise for our consideration are:
1) Whether the impugned final gradation/seniority list dated 16.04.2024 issued by the competent authority Director General, ESIC, New Delhi signed by the Assistant Director (MA) whereby the names of absorbed Medical Officers are not included, is proper and justifiable?
2) Pursuant to the decision taken in 174th meeting of the ESIC held on 29.05.2018, whether the unified/integrated seniority list has to be maintained amongst the absorbed Medical Officers who opted for Institutional Seniority and the Medical Officers who opted for All India Seniority kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 18 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE while considering such medical officers for promotion under DACP Scheme with effect from 01.06.2018?
11. Both the points being inter-related, they are considered together for analysis. In terms of the approved minutes of 174th meeting of the ESI Corporation held on 29.05.2018, all the Medical Officers absorbed shall be placed under All India Seniority and their promotion upto CMO (NFSG) shall be done as per their eligibility in the light of the approved agenda. Relevant portion of the approved agenda is extracted hereunder for ready reference:
"3. There were 184 MOs, who opted for Institution/state seniority across all taken-over hospitals. Now, many of these Medical Officers have requested many times for grant of opportunity to change their option as they lost considerable promotional avenues post implementation of DACP w.e.f. 1.3.2008. A large number of representations have been from such employees through difference channels viz. direct representations, VIP references, public grievances on CPGRAMS etc. for grant of promotion to NFSG & SAG grades. Court cases have also been filed before different CATs against dismissal of such representations by ESIC citing conditions of Terms of Absorption read with option of individuals as grounds for non-grant of promotion to NFSG & SAG.
4. As explained above, placement of individual in Institutional/state seniority and grant of NFSG &SAG scales cannot go along as per approved terms and conditions. Therefore, in larger interest and in order to maintain best human resource practices of the Corporation, we can consider kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 19 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE these requests sympathetically for the reason that after implementation of Dynamic Assured Career Progression scheme in the year 2008 for medical officers of ESIC, as the promotions of NFSG & SAG levels were de-linked from the vacancies and also became time scale promotions. Now onwards ESIC will do away with the institutional/state seniority and each & every absorbed Medical Officer will be placed under All India seniority to have equal opportunity of being promoted to the scales of NFSG & SAG. Further in case, if any representations are received from any of the absorbed MOs to still place them in institutional/state seniority, the Corporation shall have no objection for their repatriation to their parent organization, if the respective State Government permits so. The employee remaining in the Corporation shall be liable for All India Transfer.
5. These absorbed employees will be placed in All India Seniority w.e.f. 1.6.2018. They will be granted financial benefits of DACP from 01.06.2018. However, they will be granted notional benefits of DACP from the date of its eligibility. The date of eligibility of DACP for a particular scale to be granted to these employees will be seen with reference to the guidelines already being followed in cases of other employees who originally opted for All India Seniority.
6. In view of the above, approval of the Corporation is sought for the following in respect of absorbed MOs who were previously placed in Institutional/state seniority:-
6.1 To allow all these MOs to be placed in one common All India Seniority List w.e.f. 1/6/2018.
6.2 To approve grant of promotional benefits to the scale of NFSG & SAG under DACP as a consequence of their placement in All India Seniority, if the same is otherwise admissible as per rules and subject to conditions stipulated in para 5 above."
(emphasis supplied) kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 20 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE
12. The aforesaid agenda being approved by the 174 th meeting of the ESI Corporation, absorbed Medical Officers who were previously placed in Institutional/State Seniority shall be placed in one common All India Seniority list with effect from 01.06.2018.
13. Office Memorandum dated 29.10.2008 has been issued by the Government of India, Ministry of Health and Family Welfare, CHS Division extending DACP scheme up to SAG Grade in respect of officers of Medical and Dental Doctors in the Central Government. The relevant paras of the said memorandum are extracted hereunder for ready reference:
"The matter for granting more incentives to the Medical/Dental Doctors in the Central Government has been under consideration of the Government of India for quite some time. The Government, while accepting the recommendations of 6th Pay Commission, has resolved in para 12 of the Resolution No. 1/1/2008-IC dated 29th August, 2008 that the Dynamic ACP Scheme for Doctors will be extended upto the Senior Administrative Grade (Grade Pay of Rs. 10000 in PB-4) to all Medical Doctors, whether belonging to Organized Services, or holding isolated posts. Accordingly, the president is pleased to extend the scheme of DACP upto SAG level (Grade Pay of Rs. 10,000 in Pay Band 4 Rs. 37400-67000) to all Medical/Dental Doctors in the Central Government, whether belonging to Organised Service or holding isolated posts.
kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 21 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE
2. The number of years of regular service required for upgradation to various grades upto SAG level under the DACP Scheme will be as under.
A. General Duty Medical/Dental Doctors appointed directly in the Grade Pay of Rs. 5400 in Pay Band-3.
Promotions under DACP Scheme No. of years of regular service
required for promotion
From To
Grade Pay Rs. Grade Pay Rs. 4 years in Grade Pay of Rs. 5400 PB-3 6600 in PB-3 5400 in PB-3 including service rendered in the pre-
revised scale of Rs. 8000- 13500 Grade Pay Rs. Grade Pay Rs. 5 years in Grade Pay of Rs. 6600 in PB-3 7600 in PB-3 6600 in PB-3 including service rendered in the pre-
revised scale of Rs. 10000- 15200 Grade Pay Rs. Grade Pay Rs. 4 years in Grade Pay of Rs. 7600 in PB-3 8700 in PB-4 7600 in PB-3 including service rendered in the pre-
revised scale of Rs. 12000- 16500 Pay Rs. 8700 in Grade Pay Rs. 7 years in Grade Pay of Rs. PB-4 10000 in PB-4 8700 in PB-4 including service rendered in the pre-
revised scale of Rs. 14300- 18300 or 20 years of regular service."
14. Similarly, OM dated 29.10.2008 has been issued by the Government of India, Ministry of Health and Family Welfare, CHS Division insofar as various sub cadres of Central Health Service and Dental Doctors under the Ministry of Health and Family kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 22 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE Welfare is concerned. The promotions under DACP scheme is enumerated as under:
"A. GDMO Sub-Cadre
Promotions under DACP Scheme No. of years of regular service
required for promotion
From To
Medical SMO (Grade 4 years in Grade Pay of Rs.
Officers (Grade Pay Rs. 6600 5400 in PB-3 including Pay Rs. 5400 in PB-3) service rendered in the pre-
PB-3) revised scale of Rs. 8000-
13500
SMO (Grade CMO (Grade 5 years in Grade Pay of Rs.
Pay Rs. 6600 in Pay Rs. 7600 6600 in PB-3 including PB-3) in PB-3) service rendered in the pre-
revised scale of Rs. 10000- 15200 CMO (Grade CMO (NFSG) 4 years in Grade Pay of Rs. Pay Rs. 7600 in (Grade Pay Rs. 7600 in PB-3 including PB-3) 8700 in PB-4) service rendered in the pre-
revised scale of Rs. 12000- 16500 CMO (NFSG) SAG Grade 7 years in Grade Pay of Rs. (Pay Rs. 8700 (Grade Pay Rs. 8700 in PB-4 including in PB-4) 10000 in PB-4) service rendered in the pre-
revised scale of Rs. 14300- 18300 or 20 years of regular service."
In terms of the said OMs of even date 29.10.2008, for promotion of CMO (Grade Pay of Rs. 7600 in PB-3) to CMO (NFSG)(Grade Pay Rs. 8700 in PB-4) under DACP scheme, 4 years in Grade Pay of Rs. 7600 in PB-3 including service rendered in the pre-revised scale kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 23 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE of Rs.12000-16500 is the required criteria for promotion. For promotion from CMO (NFSG) (Grade Pay Rs. 8700 in PB-4) to SAG Grade (Grade Pay Rs. 10000 in PB-4), 7 years in Grade Pay of Rs. 8700 in PB-4 including service rendered in the pre- revised scale of Rs. 14300-18300 or 20 years of regular service is the criteria.
15. In view of the aforesaid, the relevant criteria of 7 years in Grade Pay of Rs. 8700 in PB-4 becomes significant for promotion of CMO (NFSG) to SAG Grade. The applicants herein - absorbed Medical Officers cannot be left out in preparing the gradation/seniority list, more particularly, in view of the decision taken by the 174th meeting allowing the absorbed Medical Officers to be placed in one common All India Seniority list with effect from 01.06.2018. Thus, the requirement was to prepare one unified/integrated gradation/seniority list. The stance of the respondents that they are in the process of preparing another gradation/seniority list for the absorbed Medical Officers is wholly discriminatory and untenable.
kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 24 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE
16. In OA No. 173/2022, supra, this Tribunal had an occasion to consider the entitlement of absorbed Medical Officers for extending the actual monetary benefits of promotion only with effect from 01.06.2018 instead of from the date of their placement in the grade. The question that was framed for consideration was, whether or not it is open to the ESIC to restrict the actual monetary benefits only from 01.06.2018 while extending the benefits of DACP Scheme while ordering promotion to the grade of CMO (NFSG) from the dates as indicated in the order on notional basis especially when the promotions under DACP Scheme are without linkage to the actual vacancies of the promotional posts. Examining the said issue, this Tribunal observed thus:
12. Subsequent to the decision taken in the 174th meeting on 29.5.2018, the ESIC decided to do away this distinction and placed all the absorbed Medical Officers in All India seniority in order to grant every absorbed employee equal opportunity of being promoted to the grade of CMO (NFSG) and SAG, under the DACP scheme. It was also decided that in case any of the Medical Officers still wants to be placed under Institutional/State Seniority, they may be allowed to repatriate to their parent organisation if the respective State Government permits so. In other words, all medical Doctors in ESIC, including the absorbed employees, were placed under All India seniority with equal opportunity of promotion to the scales of CMO (NFSG) and SAG under DACP with effect from 1.6.2018.
It is consequent to this decision taken by the ESIC that the applicants have been promoted to CMO (NFSG) under the kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 25 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE DACP scheme vide impugned order dated 04.12.2020 (Annexure A-11 & A-12).
13. Since the distinction between these two classes of employees was abolished w.e.f. 1.6.2018, hence, the actual monetary benefits under DACP were also granted to those employees who had earlier opted to remain in Institutional Seniority, from that date only. All other benefits were granted notionally from the date of grant of notional promotion under DACP to the employees who were under institutional seniority and had not been granted the upgradation beyond CMO grade.
14. The applicants had opted for institutional seniority with the knowledge that without accepting All India Transfer liability, they shall not be eligible for promotion beyond the level of CMO. They become eligible for financial benefits of upgradation beyond the CMO level, only after they were included under the All India Seniority with All India transfer liability. They, therefore became eligible for the actual financial benefits with effect from the date on which they were shifted to All India Seniority with All India transfer liability. It would be discriminatory on the part of ESIC to retrospectively do away with this distinction and grant the benefit to those employees as well who had consciously opted only for Institutional Seniority and opted to forego the benefits of financial upgradation beyond CMO grade in order to avoid All India transfer liability along with such other employees who had opted for All India Seniority along with All India transfer liability and were consequently eligible for opportunity of promotion beyond the level of CMO.
15. The prayer of the applicants to grant them actual financial benefits from retrospective effect and not from the date when they were incorporated in the All India Seniority list with All India transfer liability cannot be countenanced. The distinction made between these two classes of employees is justified and cannot be considered as arbitrary under any circumstances, since the applicants had themselves made a conscious choice voluntarily at the time of absorption in ESIC. ESIC has now decided to remove this distinction w.e.f. kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 26 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE 1.6.2018. It therefore, further decided to grant notional benefits prior to 1.6.2018 under DACP, and full financial benefits subsequent to that date (1.6.2018) to these applicants who were included under All India Seniority list with All India transfer liability with effect from that date."
17. It is submitted at the bar that the said decision is sub- judice before the Hon'ble High Court of Karnataka. Be that as it may, the said decision would be of no assistance to both the parties while adjudicating the issue on hand since the eligibility for financial benefits of upgradation was the issue decided in the said OA, as narrated above. The impugned final gradation/seniority list dated 16.04.2024 issued by Director General, ESIC, New Delhi violates the decision taken in the 174th meeting of ESIC held on 29.05.2018, and as such, the same is unjustifiable. Yet another ground taken by the respondents that 7 years of regular service in the post of CMO (NFSG) is the required criteria which the applicants do no fulfil is also not in consonance with the promotion under DACP scheme as explained in the OMs of even dated 29.10.2008 (Annexures-A3 and A4 in OA No. 251/2024) wherein the required criteria is prescribed as "7 years in Grade Pay of Rs. 8700 in PB-4 including service rendered in the pre-revised scale of kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 27 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE Rs. 14300-18300 or 20 years of regular service". The only test could be whether the applicants were in Grade Pay of Rs. 8700 in PB-4 for 7 years. If the answer is in the affirmative, no promotion to the SAG grade could be denied to them.
18. It is significant to note that though individual objections/observations were filed by the applicants to the provisional seniority list in respect of Medical Officers in CMO (NFSG) of GDMO sub-cadre in pay level 13 as on 31.08.2023 dated 21.09.2023, the same has been outrightly ignored/not considered while preparing the final gradation/seniority list vide memorandum dated 16.04.2024. As could be seen, the objections raised by the Medical Officers who were placed in the All India Seniority list alone have been considered and addressed to. Such an action of the respondents in ignoring the objections raised by the absorbed Medical Officers who were previously placed in Institutional Seniority is arbitrary and discriminatory.
19. The promotion order dated 30.10.2024 (Annexure-A12) in OA No. 251/2024 is issued during the pendency of the kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 28 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE proceedings before this Tribunal where an interim order of stay was granted staying the impugned memorandum - final gradation/seniority list dated 16.04.2024 and the same was in operation till the matter was finally heard and reserved for orders. MA No. 643/2024 has been filed by the applicants in OA No. 251/2024 seeking for initiation of suo motu contempt proceedings against the respondents herein for wilful disobedience of interim order in currency in the said OA, due to the promotion list dated 30.10.2024 issued by the respondents. The defence of the learned counsel for the respondents on this aspect is that the said promotion order is issued independent of the seniority list under the DACP scheme and the same is not based on seniority. If the same to be accepted, the same yardstick has to be applied to the applicants herein, as well. No discrimination could be made between absorbed Medical Officers/Institution Seniority and Medical Officers placed under All India Seniority list with effect from 01.06.2018 subsequent to the decision taken in the 174th meeting. Medical Officers previously placed whether in institutional/state seniority or All India Seniority list, form one class with effect from 01.06.2018 and come under one unified gradation/seniority list. No distinction kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 29 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE could be made between these two classes of Medical Officers for the purpose of seniority with effect from 01.06.2018 and promotion under DACP scheme. Considering the totality of circumstances, we are not inclined to initiate any suo motu contempt proceedings against the respondents. It is sufficient respondents are put on alert to obey their own ESIC's approved resolution passed in 174 th meeting held on 29.05.2018 referred to supra, ordered accordingly.
20. However, there being no challenge made to the promotion order dated 30.10.2024 (Annexure-A12 in OA No. 251/2024), we are not inclined to set aside the said promotion order in the absence of necessary parties impleaded in the OA. It is needless to observe that liberty is reserved to the applicants to challenge the said promotion order dated 30.10.2024 in accordance with law, if aggrieved.
21. For the reasons stated hereinabove, we pass the following:
kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 30 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE :ORDER:
1) The impugned order File No. A-24014/12/2023 Med-VI dated 16.04.2024 (marked as Annexure-A8 in OA No. 283/2024 and Annexure-A11 in OA No. 251/2024) passed by the Director General, ESIC, New Delhi is set aside.
2) The respondents are directed to re-do the Seniority List of CMO (NFSG) of GDMO sub-cadre in pay level 13 showing the position as on 01.06.2018 including the names of the applicants - Medical Officers along with the Medical Officers who were placed under All India Seniority list in one integrated/common All India gradation/seniority list with effect from 01.06.2018 while finalising the final gradation/seniority list in respect of Medical Officers in CMO (NFSG) of GDMO sub cadre in pay level 13 as on 31.08.2023 in ESI Corporation.
kavya shree k kavya CAT, Bangalore shree k2025.02.10 16:27:25+05'30' 31 OA.No.170/00283/2024, OA.No.170/00251/2024 & OA.No.170/00488/2022/CAT/BANGALORE
3) Compliance shall be made in an expedite manner in any event not later than four months from the date of receipt of the copy of the order.
4) Resultantly, OAs stand disposed of in terms of above. All the pending MAs stand disposed of accordingly.
No order as to costs.
Sd/- Sd/-
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/
kavya shree k
kavya CAT,
Bangalore
shree k2025.02.10
16:27:25+05'30'