Central Administrative Tribunal - Bangalore
Dr Veda P vs Employees State Insurance Corporation on 10 April, 2023
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OA.No.1045/20219/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/01045/2019
Order Reserved on: 16.02.2023
Date of Order: 10.04.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Smt.Veda.P
W/o V.Sridhar,
Aged about 49 years
Working as Specialist cum Assistant Professor,
Employees State Insurance Corporation
Medical College and Post-Graduate Institute
of Medical Science & Research
(ESIC MC & PGIMSR)
Rajajinagar, Bengaluru-560 010.
Residing at: No.10, "Sri Devi Krupa",
1st Main, 1st Block, R.T.Nagar,
Bengaluru - 560032. ..Applicant.
(By Advocate Shri Vishwanath Bhat)
Vs.
The Union of India
Represented by its Secretary,
Ministry of Labour and Employment,
Ministry of Labour,
Employees State Insurance Corporation,
No.110, Shram Shakthi Bhavan,
Rafi Marg, New Delhi.
2. The Employees State Insurance Corporation,
Panchadeep Bhawan,
C.L.G Marg, New Delhi-110 002.
Represented by its Director General. ....Respondents
(By Shri N. Amaresh, Sr. Panel Counsel)
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OA.No.1045/20219/CAT/Bangalore Bench
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash the impugned endorsement bearing No.C-18/11/1/13-CHI-4 dated 06-08-2019 issued by the 2nd Respondent, (Annexure-A10), vide which her request for regularisation as Associate Professor or Professor has been rejected.
b) To direct the Respondents to promote the Applicant as Associate Professor, Designate Professor and Professor or in the alternative designate the Applicant as Associate Professor, Designate Professor and Professor as per the MCI Regulations and grant the Applicant all the consequential benefits to which she is legally entitled to;
2. The facts of the case as pleaded by the applicant in her pleadings, are as follows:
a) The applicant entered into service of the ESIC as Insurance Medical Officer on 21.11.1997. She was given posting at E.S.I Hospital, Indiranagar, Bengaluru. She was transferred to ESI Hospital, Rajajinagar, Bengaluru, in the month of January 1998. The applicant was deputed to ESI Model Hospital Rajajinagar, Bengaluru on 01.04.2003. Thereafter, she was appointed as Specialist Grade-II (Junior Scale) in ESIC and promoted as Specialist Grade-II (Senior Scale) on 14.07.2009.3
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b) The third respondent issued a circular dated 21.08.2009 inviting willingness from such of those specialists working on regular basis, to be designated as teaching faculty for the proposed ESI PGIMSR, Rajajinagar, Bengaluru. In response the applicant expressed her willingness to be designated as a teaching faculty vide her letter dated 22.08.2009. The ESIC by memorandum dated 23.09.2009 designated the applicant, amongst others, as Specialist cum Assistant Professor.
c) The memorandum vide Annexure-A-3 was furnished by the ESIC to the Central Government for starting the Post Graduate courses in pathology. Considering the same, the Central Government granted permission for starting the Post-Graduation course in Pathology (MD- Pathology) and the same was conveyed by the Central Government to the 3rd Respondent by the letter dated 31.03.2010.
d) While working as specialist cum Assistant Professor, due to certain family constraints, the applicant informed the medical superintendent, ESIC Rajajinagar, Bengaluru, that she may be permitted to withdraw her willingness as a teaching faulty and as result of the same, the ESIC had withdrawn her designation as Specialist cum Assistant Professor by letter dated 17/18.01.2011. After coming out of her domestic problems, immediately the applicant by her letter dated 02.02.2011 requested the ESIC to permit her to continue in the teaching faculty as specialist cum teaching faculty.
e) Initially, though she informed the Medical Superintendent ESIC Hospital Rajajinagar to permit her to withdraw her willingness, since 4 OA.No.1045/20219/CAT/Bangalore Bench the date from which she was designated as specialist cum Assistant Professor till now she continues to perform her duties as specialist cum Assistant Professor at ESIC PGMSIR.
f) The Medical Council of India (MCI) made a rule called "Minimum Qualification for Teachers in Medical Institutions (Amendment) Regulations 2012." As per the said notification (Anenxure-A-7), a Consultant or Specialist is entitled to be equated as "Designate Professor" and thereafter as Professor, subject to certain terms and conditions mentioned therein. The relevant portion of the notification vide Annexure-A-7 which deals with equation of a Specialist as a Designate Professor and thereafter as a Professor, reads as under;
"The requisite experience for equating a Consultant or Specialist (after possessing postgraduate medical degree in the subject) working in the concerned specialty in a minimum 300 bedded ESI Hospitals as professor shall be more than 18 years with Four Research publication in indexed journal as 1st author or corresponding author. Such Consultant or Specialist, after joining a medical college, shall be called as "designate professor" and on completion of three years' experience in the capacity of Designate Professor, such person shall be designated as "Professor."
g) The Rules of 2012 were further amended as per the MCI notification dated 22.1.2018. A true copy of the amendment notification of 2018 published in the Gazette of India is produced herewith and marked as 5 OA.No.1045/20219/CAT/Bangalore Bench Annexure-A8. As per the Amendment Rules of 2018, following amendments was made for Designate as Professor.
"The requisite experience for equating Consultants/Specialists (after possessing Post Graduation Degree in subject) working in concerned Specialty in 300 bedded Non-Teaching District Hospital owned and managed by State Government/Central Government as Professor shall be more than 18 years' experience with 4 Research Publications in Index Journal as First Author or corresponding Author. Such Consultant or Specialist, after joining Medical College shall be called "Designate Professor" and on completion of 3 years in the capacity of Designate Professor, such person shall be designated as "Professor".
As far as designating a Consultant or Specialist as Associate Professor, the eligibility criteria is as follows:
"The requisite experience for equating Consultants/Specialists (after possessing Post Graduation Degree in subject) working in concerned Specialty in 300 bedded Non-Teaching District Hospital owned and managed by State Government/Central Government as Associate Professor shall be more than 10 years' experience with 2 Research Publications in Index Journal as First Author or corresponding Author. Such Consultant or Specialist after joining Medical College shall be designated as "Associate Professor" 6
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h) The Amendment Rules 2018 provide for designating Consultant or Specialist as Associate Professor, Designate Professor, Professor, if he had worked in Non-Teaching District Hospital owned and managed by State Government/Central Government. Therefore, by reading of 2018 Rules, a Consultant/Specialist who had worked for more than 10 years in Non-Teaching District Hospital are eligible for designating as "Associate Professor". Likewise, in the case of Designate Professor and Professor, experience for designating Consultant or Specialist as "Designate Professor" is 18 years' experience and to be designated as "Professor" is 18+3 years' experience.
i) The Applicant is fully eligible and entitled to be designated as Designate Professor and Professor. The Applicant has published seven publications in Indexed Journal as First Author as particularised above. Inspite of the Rules of 2012 and 2018, her case was not considered for Designation as Associate Professor, Designate Professor or Professor.
j) The applicant was constrained to approach this Tribunal in O.A No.144/2018 seeking a writ of mandamus to equate and treat her as a Professor from the date on which she is entitled to be equated as such i.e., from November 2015. The said OA No.144/2018 filed by the Applicant was allowed by this Tribunal on 30.04. 2019. This Tribunal directed the Respondent herein to consider the case of the Applicant and this Tribunal while allowing the said O.A., has given a specific finding that the Applicant is fully qualified and has requisite experience as per the Rules for consideration as Associate Professor and further 7 OA.No.1045/20219/CAT/Bangalore Bench designation thereafter. Hence, a direction has been issued to the Respondent to consider the case of the Applicant as per the Rules within two months from the date of the said order.
k) The 2nd Respondent without considering her case for Associate Professor and further promotion to the post of Designate Professor and Professor issued an endorsement on 06.08.2019 rejecting her request.
l) The Respondents have considered the case of others i.e. in the case of Dr. K.S.Charak, Dr. Anita Arora, Dr. Madhu Choudhary, Dr. Supreethi Kohli, Dr. Suresh Kumar Aggarwal, Dr. Madhu Gupta and Dr. Sangeetha Gupta for designating them as Associate Professor, Designate Professor and Professor at ESIC PGIMSR, Basaidarapur, New Delhi. Their cases have been considered for designating them as Associate Professor, Designate Professor and Professor. This fact is evident from the Final Seniority List of Specialists as on 31.3.2010 published by the 2nd Respondent. The said Final Seniority List of Specialists has been downloaded from the internet and a true copy of the said final seniority list is produced herewith as Annexure-A11. From the said list, it is evident that they were appointed as Specialist in the ESIC. Subsequently, they have been designated as Associate Professor, Designate Professor and Professor. In the case of Sri K.S. Charak, who was initially appointed as Specialist at ESIC PGIMSR, Basaidapur, New Delhi, has been designated as Designate Professor. Dr. Antia Arora is designated as Professor; Dr. Madhu Choudhry as Designate Professor; Dr. Supreethi Kohli as Professor; Dr. S.K 8 OA.No.1045/20219/CAT/Bangalore Bench Aggarwal as Professor; Dr. Madhu Gupta as Professor and Dr. Sangeetha Gupta as Professor. The applicant has downloaded their details from the website of the ESIC PGIMSR Basaidarpur, New Delhi and copies of the same are collectively produced herewith and marked as Annexure-A12 series. To the best knowledge of the applicant, they have been initially appointed as Specialists (Non-teaching) in the ESIC Hospital and thereafter, as per the MCI Rules, they have been treated as Associate Professor, Designate Professor and Professor. But in the case of the applicant, her request has been rejected in spite of the direction issued by this Tribunal.
3. The respondents have filed their written statement wherein they have averred as follows:
a) In the E.S.I. Corporation, there are three distinct cadres, viz., GDMOs;
Specialists (Non-teaching) and Specialists (Teaching). There are different sets of Recruitment Regulations for these cadres. The Applicant comes under Specialist Cadres (Non-Teaching) and has been assigned additional teaching duties subject to conditions stipulated vide Memorandum No. L-11/12/3/2009/ME/Option dated 23.09.2009 (Annexure A-3) while designating the applicant as "Specialist cum Assistant Professor". The applicant was aware of the nature of responsibility bestowed upon her and the claim that she has been deprived of an opportunity to further her career prospects, is not justifiable and not legally tenable. Further, it has been clearly stated that the designation of "Specialist cum Assistant Professor" (Teaching 9 OA.No.1045/20219/CAT/Bangalore Bench Faculty) is subject to approval of MCI & Affiliating University. In the said order it has been stated that:
"The above mentioned designation as "Specialist cum Assistant Professor" is applicable only at present place of posting and such designation will stand withdrawn on transfer to other ESI Hospital".
b) The re-designation is only for the purpose to accord MCI approval to start the proposed ESIC Medical College at Rajajinagar, since the Regular Teaching Faculty were not appointed in the Respondent ESIC College at that time. It wil1 automatically stand withdrawn if she is transferred to other ESIC Hospital. Her re-designation was only for a limited purpose i.e. for obtaining approval from the Medical Council of India to start a Medical College.
c) The Respondents submit that the averments of the Applicant that she was appointed as Assistant Professor is not correct. It was a mere re- designation of her original post. She had been appointed as Specialist Gr-II (Jr. Scale) in the Specialist (Non-Teaching) Cadre. She was re- designated as "Specialist cum Assistant Professor" only for the limited purpose of meeting the requirements of MCI to start the ESI PGIMSR and Medical College.
d) In the Memorandum (Annexure A-3) it has been clearly stated that the re-designation is subject to approval of MCI & Affiliating University and also stated that no additional remuneration would be paid on account of such designation. She has to perform existing duties of 10 OA.No.1045/20219/CAT/Bangalore Bench Specialists assigned to her and in addition she has also to perform the duties of Teaching Faculty as Assistant Professor.
e) The re-designation of the Specialist equating to a Teaching Faculty is based on administrative exigency and cannot be treated as a matter of right of the Applicant. The Applicant was re-designated only for the purpose of obtaining MCI recognition for the ESIC Medical College at Rajajinagar when there was shortfall of regular Teaching Faculty.
f) In ESIC, there is no post of "Specialist-cum-Teachers". The Specialists who have been appointed as Non-Teaching Specialist and Specialists- Teaching are having separate set of Recruitment Rules for appointment and promotion. There is no provision for automatically switching over of Specialists (Non-teaching) to Specialists (Teaching) on fulfilling of criteria as laid down by Medical Council of India, being the Apex body of Medical Education.
g) The Applicant was well aware that the Specialists (Non-Teaching) and Specialists (Teaching) are two separate cadres in ESIC having different Recruitment Rules. ESIC never obstructed any eligible Medical Officer who intended to apply/appear in open Recruitment Process of Teaching Faculty. It is evident from the records that she was issued with a Service Certificate to appear for the direct Interview of Teaching Faculty. However, she was not selected for the said applied post. It is also a common fact that many of the Specialists (non-teaching) don't want to apply for Teaching Cadre due to better promotional avenues in non-teaching side. It is submitted that a Specialist (Grade-2 Jr. Scale) 11 OA.No.1045/20219/CAT/Bangalore Bench in level-11 gets promoted as Specialist Grade-II (Senior Scale) Level- 12 immediately on completion of 2 years of service. In comparison to Specialists working on same pay scales, an Associate Professor in Level-11 gets promoted as Associate Professor in Level-12 on completion of 5 years of service as per eligibility criteria laid down by MCI.
h) The re-consideration of the request of the Applicant to designate her again as Specialist cum Assistant Professor depends purely on the basis of administrative requirements and the Competent Authority has not considered her requests due to non-requirements of such posts.
i) Designating some of the Medical Officers as Teaching Faculty in ESIC PGIMSR, Basaidapur, New Delhi is a matter of fact, as the same was required due to administrative exigencies to meet the MCI requirement.
j) The Applicant has no right to claim that she should also be designated as Teaching Faculty in her Institute irrespective of the requirement of the organization. Getting designated as Teaching Faulty is not at all her right as part of service condition in her promotional cadre structure and in fact is a matter of administrative feasibility. There are sufficient number of teaching specialities in ESIC Medical College, Rajajinagar in Pathology Department to meet MCI norms. There is no further requirement to designate any non-Teaching Specialist as Specialist. 12
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k) Granting the benefits to a Non-Teaching Specialist of a Teaching Specialist will definitely affect the career prospectus of an eligible doctor who intends to apply afresh for a particular Teaching Cadre.
l) The Respondents never obstruct the Applicant to apply afresh for a Teaching Post in a direct recruitment process.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. In the present case, the applicant is seeking consideration for designation/promotion to the post of Associate Professor / Professor from the date of her becoming eligible for the said post. She has also sought for quashing of the endorsement No.C-18/11/1/13-CHI-4 dated 06-08-2019 issued by the 2nd Respondent, (Annexure-A10), vide which her request for regularisation as Associate Professor or Professor has been rejected.
6. It is an admitted fact that the applicant was initially appointed as a Specialist Gr-II (Junior scale), and was promoted as Specialist Grade-II (Senior Scale) on 14.07.2009. The cadre of Specialist (Non-Teaching) in ESIC is governed under Regulations called the Employees State Insurance Corporation (Specialist Cadre Post) Recruitment Regulations, 2010. Under these rules, the persons who are initially appointed as Specialist Gr.-II (Junior Scale) (Level 11), are eligible for promotion as Specialist Gr.-II (Senior Scale) (Level-12), Specialist Grade-I (Level-13) and Specialist (Sr. Administrative Grade - SAG) Level-14. The applicant is currently working as Specialist 13 OA.No.1045/20219/CAT/Bangalore Bench Grade - I. She belongs to the Specialist (Non-teaching) cadre of doctors in the ESIC.
7. The PGME Regulations, 2000 were amended by Post-Graduate Medical Education (Amendment) Regulations, 2005 with effect from 16th March, 2005. Under this, clause (d) to Regulation 11.1 was added by way of amendment. The Clause (d) to Regulation 11.1 reads as under:-
"(d) Consultants of specialists who have the experience of working for a period of not less than 18 years and 10 years in the teaching and other general departments in the institution or hospitals, not attached to any medical college, where with the affiliation from any university, postgraduate teaching is being imparted as contemplated under sub-regulation (1A) of regulation 8, shall respectively be eligible to be equated as Professor and Associate Professor in the department concerned. The requisite experience for equating a consultant or specialist working in the super-speciality department of the said institution or hospitals as Professor and Associate Professor shall respectively be 16 years and 8 years. Consultants or Specialists having postgraduate degree qualification, working in such an institution or hospital, who do not have the said period of experience, shall be eligible to be equated as Assistant Professor in the department concerned."
8. A proviso to the clause was added by notification dated 17th November, 2009 and the same reads as under :-
"Provided that such conferment of the nomenclature of designation/status of post graduate medical teachers shall be awarded only to those many number of consultants in the concerned hospital/institution so as to fulfil the minimum requirement for imparting Post Graduate Medical education to the sanctioned annual intake of the respective Govt. hospital/institute." 14
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9. These PGME regulations allowing conferment of equivalent designations to the Consultants or Specialists, having postgraduate degree qualifications as Assistant Professor/ Associate Professor/Professor as the case may be, were provided in order to meet the urgent requirement of requisite number of Assistant Professors/Associate Professors/Professors in various existing postgraduate institutions which would have otherwise faced de-recognition or closure on account of lack of adequate number of teaching staff.
10. The respondents (ESIC) called for applications from various eligible Specialists for such consideration to be appointed as "Specialists-cum- Assistant Professor" under the PGME regulations in order to meet the urgent need of faculty to teach students in the ESIC Medical colleges. The applicant also applied for the same and was appointed as Specialist-cum-Assistant Professor w.e.f. 2009.
11. The conditions prescribed by the respondents in the order designating the applicant as a Specialists-cum- Assistant Professor, clearly stated as follows:
i. The designation of these specialists as "Specialist-cum-Assistant Professor" will be effective from the date of assuming charge. They will continue to perform existing duties of specialists assigned to them. In addition, they will perform the duties of teaching faculty as Assistant Professor.
ii. They will continue to draw the existing pay scale and allowances and no additional remuneration will be payable to them on account of such designation.15
OA.No.1045/20219/CAT/Bangalore Bench iii. They can be assigned any additional duty by the Competent Authority.
iv. The above-mentioned designation as Specialist-cum Assistant Professor is applicable only at present place of posting and such designation will stand withdrawn on transfer to other ESI Hospital.
12. These conditions clearly indicate that this order granting designation of Specialist cum Assistant professor to the applicant did not imply any change of cadre of the applicant from the cadre of Specialist to the cadre of a Teaching Faculty in the ESIC.
13. The Teaching faculty in the ESIC is governed under its own Recruitment Regulations titled ESIC (Medical Teaching Faculty Post) Recruitment Regulations, 2015. A perusal of these regulations, governing the teaching posts, indicates that the teaching cadre in ESIC consists of the following Posts: Assistant Professor, Level-11, Associate Professor, Level-12, Professor, Level-13 and Director Professor, Level-14.
14. Hence, the posts in Teaching Cadre in the ESIC are distinct and different from the posts in the Specialist Cadre. There is no provision under these regulations for any person to hold the post in both the cadres simultaneously. A person can either belong to the Specialist cadre or to the Teaching cadre. There is also no provision for lateral movement from one cadre to another cadre in these rules. Appointment to any post, is governed only by the Recruitment Regulations pertaining to the concerned cadre and post. 16
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15. The Post Graduate Medical Education (Amendment) Regulations 2005 under which some of the Specialist working in Specialist cadre were allowed to have a joint designation of Specialist-cum-Assistant Professor is only a special regulation. It has been clearly stated that these special provisions are only to meet the temporary shortages if any, in the teaching cadre of a teaching institution and cannot be a ground to claim a lateral entry from the Specialist cadre to the Teaching cadre.
16. The issue of designation of Consultants and Specialists, as Assistant Professors/Associate Professors/ Professors was examined in detail by The Division Bench of the Hon'ble Delhi High Court in W.P.(C) No.7049/2005 Faculty Association Maulana Azad Medical College Vs. UOI & Ors. In this case, the Delhi High Court, in a detailed order held as follows:
(i) Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 treats Consultants or Specialists having the requisite experience not attached to medical colleges but post-
graduate institutions covered by Sub- Regulation 1A to Regulation 8 as Professors, Associate Professors and Assistant Professors. The petitioners are unable to establish and show that clause (d) to Regulation 11.1 is illegal or bad in law. On the other hand, the respondents have been able to show and establish the reason and cause why the aforesaid clause was enacted by the MCI. The object and purpose were to allow and permit post-graduate courses already in existence should not close down and stop pursuant to the promulgation of PGME Regulations, 2000.
(ii) Clause (d) of Regulation 11.1 of the PGME Regulations, 2000 is not in conflict with the CHS Rules in any manner. 17
OA.No.1045/20219/CAT/Bangalore Bench The teaching and non-teaching cadres remain distinct and separate. Consultants and Specialists in the non-teaching sub-cadre continue to remain members of the said cadre and are not entitled to occupy posts meant exclusively for the teaching sub-cadre. The PGME Regulations, 2000 and CHS Rules operate in different fields and the equivalence granted for the purpose of the PGME Regulations, 2000 would not affect members of the teaching sub-cadres as it does not amount to transfer or change in sub-cadres.
(iii) Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 does not postulate one-time exception and there can be subsequent designations as long as there is a shortage of Professors, Associate Professors or Assistant Professors belonging to the teaching sub- cadres.
(iv) Designations for the purpose of clause (d) to Regulation 11.1 of the PGME Regulations, 2000 can be only awarded to Consultants and Specialists who fulfil the minimum requirement for imparting post-graduate medical education to the sanctioned annual intake in the respective government institutions/ hospitals and cannot exceed the said numbers. Violation of the proviso and the question whether there are excessive designations has not been raised and argued before us. The petitioners have stated that this is not a subject matter of the present writ petition and has been raised in other writ petition pending in the High Court. We have, therefore, not examined the factual matrix and the question whether there has been a violation of the proviso to Regulation 11.1(d) of the PGME Regulations, 2000.
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17. The Division Bench of the Delhi High Court has, therefore, categorically held that the teaching and non-teaching cadres remain distinct and separate. Consultants and Specialists in the non-teaching sub-cadre continue to remain members of the said cadre and are not entitled to occupy posts meant exclusively for the teaching sub-cadre. The PGME Regulations, 2000 and CGS Rules operate in different fields and the equivalence granted for the purpose of the PGME Regulations, 2000 would not affect members of the teaching sub-cadres as it does not amount to transfer or change in sub- cadres. It has also been held that this designation is only to meet the immediate requirements due to shortage/non availability of teaching faculty.
18. A perusal of the regulations governing the recruitment for the post of Associate Professor in the ESIC (Medical Teaching Faculty Posts) Recruitment Regulations, 2015, indicate that the post of Associate Professor can be filled up by promotion from the post of Assistant Professor, failing which by direct recruitment or by transfer on deputation or absorption or by short-term contract. In case of recruitment by contract or deputation, the candidate must fulfil the essential qualifications as prescribed. For the purpose of promotion, an Assistant Professor with 5 years regular service in the grade of Assistant Professor is eligible for consideration subject to MCI norms and satisfactory completion of mandatory training.
19. The applicant cannot claim any right to be considered for appointment to the post of Associate Professor or Professor by virtue of her being a member of the specialist cadre. She is governed by her own recruitment regulations which provide for promotion within the Specialist cadre only. There is no 19 OA.No.1045/20219/CAT/Bangalore Bench provision for providing for any lateral shift for appointment as Associate Professor/ Professor. The applicant would, of course, be free to apply for consideration for any of these teaching posts, if eligible, provided these are advertised for being filled up through direct recruitment or transfer on deputation etc. under the prescribed recruitment rules.
20. The applicant is not a regular Assistant Professor appointed under the ESIC (Medical Teaching Faculty Posts) Recruitment Regulations, 2015. Hence, she is ineligible to be considered for appointment on promotion as Associate Professor under these rules.
21. The applicant has referred to the judgement in the case of Dr. J.C Panchasheelan passed by the Karnataka High Court in WP No: 16384/2016 dated 31st January 2016. However, a perusal of that judgement indicates that in that case, the High Court had proceeded on the presumption that he had been appointed as an Assistant Professor by the ESIC. The provisions under PGME 2000 regulations which provided for only designation of Specialists and Consultants as Assistant Professor, as a special case to tide over the immediate shortage of teaching faculty, were never discussed or examined in these judgements. The facts of that case appear to be different and it cannot be used as a binding precedent for the present case.
22. As far as the request of the applicant for grant of designation of Associate Professor or Professor under PGME Regulation 2000 is concerned, clause 11.1 (d), permits granting of such a designation of Associate Professor/ Professor to a Specialist or Consultant who has experience in working for a period not less than 10/18 years in a teaching department in the hospital in 20 OA.No.1045/20219/CAT/Bangalore Bench Medical College where post-graduate teaching is being imparted as contemplated under sub-regulation (IA) to Regulation 8. However, this is subject to meeting any urgent need, keeping in view the shortage, if any, in the regular teaching cadre of Associate Professor/ Professors.
23. In the present case the applicant had sought for being considered for designation as Associate Professor/ Professor. She had earlier filed OA.No.144/2018 before this Tribunal. This Tribunal, after due consideration, directed the respondents to consider the case of the applicant as per the rules within a period of 2 months from the date of the order.
24. The representation of the applicant was considered by the Respondents in a detailed speaking order dated 06.8.2019, which is under challenge in the present OA. The relevant portion of the speaking order is as follows:
"4.6 It is important to state that request of Specialist (Non-teaching) for his/her designation as Teaching faculty is considered only when applicant meets the MCI norms and it is administratively feasible subsequently to be ratified by MCI also. Possessing working experience of prescribed number of years and getting prescribed number of research papers published as per procedures are personal traits/affairs of any doctor. Mere fulfilling the eligibility criteria for their designation as teaching faculty cannot be considered as a sole ground for their confirmed designation or matter of right and it has to match with the administrative requirement. It is also important to note that the applicant herself submitted application dated 19.10.2010 and withdrew her 21 OA.No.1045/20219/CAT/Bangalore Bench designation as Assistant Professor and wanted to continue as Specialist in Pathology. Her above request was accepted by HQrs as such designation is always subject to personal willingness of the medical officer concerned. Presently, the sanctioned posts of Professor/ Associate Professors in the Department of Pathology are already filled up. There are 4 Professors/ Associate Professors already in position against the vacancy of 4 and the same are sufficient to meet the norms of MCI for recognition of the institution. In absence of vacancy there is no scope to consider her request for designation. She on her own and without any specific official approval of the competent authority participated in few sessions of MCI. Being a doctor of the hospital, she was not stopped to participate, which she inappropriately quotes as her official deployment for the purpose.
5. In view of the above facts, the request of the applicant to designate her as "Associate Professor" or "Professor" cannot be acceded to.
6. This Speaking Order is issued in compliance of direction of Hon'ble CAT, Bangalore Bench order dated 30.4.2019 in OA.No.144/2018."
25. The respondents, in their speaking order dated 6.08.2019, have categorically stated that the present sanctioned teaching posts of Professor/ Associate Professor in the Department of Pathology are already filled up. There are 4 Professors/ Associate Professors already in position against the vacancy of 4 and the same are sufficient to meet the norms of MCI for recognition of 22 OA.No.1045/20219/CAT/Bangalore Bench the institution. Hence, in their considered view, in the absence of any vacancy, there is no scope to consider the request of the applicant to designate her as "Associate Professor" or "Professor".
26. The applicant does not have any right to be considered for appointment to the post of Associate Professor/ Professor, since she does not belong to the teaching cadre of ESIC. She is working as a regular Specialist Gr. I in Level 13 in the Specialist (Non-Teaching Cadre) of ESIC. She can, therefore, legitimately seek appointment/ promotion only in the Specialist (Non- teaching) cadre under the rules.
27. The representation of the applicant seeking for her designation as "Specialist cum Associate Professor/ Professor" as prescribed under clause 11.1 (d) of PGME Regulation 2000, can be considered by the respondents keeping in view the administrative exigencies including existing vacancies, if any, as well as her eligibility in terms of experience and educational qualifications as prescribed under the clause 11.1 (d) of PGME Regulation 2000.
28. Her earlier representation stands rejected on 6.8.2019 on the grounds that the present sanctioned teaching posts of Professor/ Associate Professor in the Department of Pathology are already filled up at that time.
29. However, the respondents may again reconsider her for designation as "Specialist cum Associate Professor/Professor" keeping in view the administrative exigencies including existing vacancies, if any, at present, in terms of her experience and educational qualifications as prescribed under 23 OA.No.1045/20219/CAT/Bangalore Bench the clause 11.1 (d) of PGME Regulation 2000, subject to concurrence/approval of MCI and the Affiliating University as per the prescribed procedure.
30. She would, of course, be free to apply for these teaching posts, if eligible, whenever they are advertised under the relevant recruitment rules, prescribing the manner in which these posts are required to be filled up.
31. Keeping the above points in view, the present OA is disposed of with the above directions.
32. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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