Central Administrative Tribunal - Delhi
All India Esic Operation Theatre ... vs Labour on 17 July, 2025
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Item No. 84 (C-3)
O.A. No. 2361/2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 2361/2024
M.A. No. 2075/2024
M.A. No. 2164/2024
M.A. No. 3081/2024
M.A. No. 4719/2024
This the 17th day of July, 2025
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. All India ESIC Operation Theatre
Technologist Association
Through its President
Mr. Vishwa Ranjan Bharti
S/o Sh. Banarsi Bharti
Aged About 38 years
R/o W.No. 11, Near Lakhnibigha Math
PS Khagaul, Danapur, Patna,
Bihar-801105
2. Chander Kant Mishra
Aged about 40 years.
S/o: Shrikant Mishra
R/o A-49, Krishna Enclave near
CRPF Camp, Jharoda Kalan,
South-West Delhi, New Delhi- 110072
3. Ishfaq Mohammad Rather
Aged about 35 years.
S/o: Gh. Mohd. Rather
R/o Frisal, Yaripora, Kulgam
Jammu and Kashmir 192232
4. Praveen Bhasker
S/o Mr Ram Prakash
Aged about 42 years.
R/o #1042 , sector -7B
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Item No. 84 (C-3)
O.A. No. 2361/2024
Chandigarh-160019
5. Md. Aftab Alam,
Aged about39 yrs.
S/o. Md. Manauwar Hussain
R/o Vill. Darwan Tola Peyare Pur
PO+PS. Isua Pur, Dist. Saran,
Bihar-841411
6. Chandan Kr Singh,
Aged about 39 years.
S/o- Sashi Bhushan Singh
R/o Vaishnawi Dham, Block-B
D. H Road, Joka, Kolkata-700104
(West Bengal)
7. Raj Kumar
Aged about 42 years.
S/o Sh. Nemichand Prajapat
R/o Plot no 9/4 DDP Nagar Madhuban
Basni First Phase
Jodhpur Rajasthan-342005
8. Balwant Singh Panwar
Aged about 46 years.
S/o Kamal Singh Panwar
R/o TE-37, Gyanshila City
Dhabli, Indore-453771
9. Kailash Prasad Sahu
Aged about 40 years.
S/o Sh. Mitthu Ram Sahu
R/o H. N. 496/1, Village-Okhar, Post-Okhar,
Ganesh Chowk, Telipara,
District-Bilaspur, Chattisgarh-495551
10. Dixit Dhiman
Aged about 29 years.
S/o Sh Sat Pal Dhiman
R/o Village Gharlahar PO Kathog Tehsil
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Item No. 84 (C-3)
O.A. No. 2361/2024
Jawalamukhi District Kangra
Himachal Pradesh-176031
11. Sandip Bamaniya
Aged about 37 years.
S/o- Dilipbhai B Bamaniya
R/o E-101, Parmeshwar Homes
Near national handloom
Nikol Ahmedabad 382350
... Applicants
(By Advocate: Mr. Sudarshan Rajan and Mr. Ramesh Rawat)
Versus
1. Union of India
Through The Secretary,
Ministry of Labour
Shram Shakti Bhawan,
New Delhi
2. The Secretary
Ministry of Health and Family Welfare
Nirman Bhawan. Rajpath Area,
Central Secretariate, New Delhi-110001
3. Director General
ESIC Headquarters
Panchdeep Bhawan
CIG Marg, New Delhi
... Respondents
(By Advocate: Mr. Krishna Kant Sharma, Mr. Bhavya Singh, Mr.
Anil Khatwani, Mr. Rizwan, Mr. Rajnarayan Pal, Mr. Birendra
Bikram, Mr. U Srivastava and Mr. Anoop Kumar
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Item No. 84 (C-3)
O.A. No. 2361/2024
O R D E R (ORAL)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
1. The present O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):-
"(i) Direct the respondents to hold a cadre review for the post of Operation Theatre Technical Staff in the ESIC hospitals and amend the recruitment rules as a consequence of holding the cadre review.
(ii) Direct the Respondents to grant consequential relief of higher grade pay to the applicants consequence to the amendment of recruitment rules.
(iii) Direct that no DPC for promotion to the post of OT Assistant should take place from Group C posts i.e. Nursing Orderlies as they do not possess the basic qualification of Operation Theatre.
(iv) Direct the respondents to do separate promotions in the OT Department and CSSD Department and further direct that no interdepartmental promotions should be done
(v) Direct the Respondents to do promotions to the post of OT Assistant, OT Technician and Senior OT Technician from the OT staff only.
(vi) Direct the respondents to do promotions to the post of CSSD Assistant, CSSD Technician and Senior CSSD Technician from the CSSD staff only.
(vii) Pass such other further order or orders as this Hon'ble Tribunal may deem fit and proper in the facts of the case and in the interest of justice."5
Item No. 84 (C-3) O.A. No. 2361/2024
2. At the outset, learned counsel for the applicants submits that a batch of similarly placed persons through an association had approached the Hon'ble High Court of Orissa at Cuttack in W.P.(C) No. 25060/2023 wherein the Hon'ble High Court had passed certain directions on 05.09.2023 (Page 220). In compliance of the order passed by the Hon'ble High Court of Orissa at Cuttack, the respondents have passed an order on 05.02.2024. Learned counsel submits that despite proactive steps being taken by the respondents by way of order dated 05.02.2024 the applicants, who belong to the technical cadre of the para- medical staff, are being diverted to work for non-technical posts and vice versa. As a consequence, not only the applicants but also the patients are being made to suffer.
3. He submits that at this stage the applicants would be satisfied if a time bound direction were to be given to the respondents to take the order dated 05.02.2024 to its logical conclusion.
4. Mr. Krishna Kant Sharma, learned counsel for the respondents assisted by his associates, submits that the communication dated 05.02.2024 is in pursuance of the directions of the Hon'ble High Court of Orissa and though it 6 Item No. 84 (C-3) O.A. No. 2361/2024 is an 18 months old communication there might be certain developments and he would seek some time to seek instructions Nevertheless, if the same has not been done so far the same would be done positively by the respondents in a time bound manner.
5. Heard the learned counsel for the parties in great detail.
6. For better understanding the order passed by the Hon'ble High Court of Orissa in W.P.(C) No. 25060/2023 and the communication dated 05.02.2024 are reproduced below:-
"1. Heard Mr. Janmejaya Dash, learned counsel appearing for the Petitioner.
2. Mr. Dash, learned counsel has quite robustly stated that in the Employees State Insurance Corporation (ESIC) Hospital, Peenya, Bengaluru, the laboratory tests are being carried out by nontechnical persons and as a result, the patients, the members of ESIC services, are running high risk so far as their health security is concerned.
3. Mr. Dash, learned counsel has also referred to one inquiry report carried out on the similar allegations. In the said report dated 2nd February 2022, Head of the Laboratory Department, ESIC Hospital, Peenya has observed inter alia as follows:
"After a detailed evaluation of the state of affairs on 30/12/2021, it is found that the grievances of IPs Immanuel, Sambath Kumar, Sam Robbie and Kotesh B T are true. As per HQ Order No.97(MA) dated 01/12/2021, four Nursing orderlies Jagadesha K S, Dashik N, Komala N and Sowmya L were promoted as Laboratory Assistants and posted to ESIC Hospital, 7 Item No. 84 (C-3) O.A. No. 2361/2024 Peenya. They had reported in the Laboratory and were working in the capacity of Laboratory Assistants when the above incidents occurred."
4. According to Mr. Dash, learned counsel, not only these employees whose name has been referred in the said report, but there are several others who without any technical knowledge are handling the laboratory tests in different layers. In that perspective, the Petitioner, on 15th February 2023, served a notice on the Director General of the ESIC.
5. In course of the submission, it has surfaced that the inquiry was carried out only in the State of Karnataka. Mr. Dash, learned counsel has referred that one Prasanta Kumar Jena has also made a complaint regarding the high-risk affairs on 9th May, 2023. According to the Petitioner, the Opposite Parties did not take any action as expected.
6. Having appreciated the materials placed before us, we direct the Director General, ESIC to look into these aspects, as alleged, and take appropriate action forthwith. We find there are prima facie materials that show there had been violation of the recruitment rules in recruiting those persons recruiting in the laboratory. The Director General, ESIC shall inform the Petitioner what action he has taken within a period of three months from the date when he would receive a copy of this order.
7. Mr. P.K. Parhi, learned Deputy Solicitor General of India has appeared for the Opposite Parties No.1 and 2. Since we have not passed any adverse order, we prefer not to issue any notice to the Opposite Parties.
8. In terms of the above, the present writ petition stands disposed of. A copy of this order be supplied to Mr. P.K. Parhi, learned Deputy Solicitor General of India for onward transmission."
"To 8 Item No. 84 (C-3) O.A. No. 2361/2024 All Dean / Medical Superintendents, ESIC MCH / ESIC Hospitals Sub.: Strict adherence to Cadre Segregation in Technical and Non-Technical Posts-reg.
Madam / Sir, In compliance with the order passed by the Hon'ble High Court of Odisha in WP(C) PIL No. 25060/ 2023 filed by the Social Service of Ideal Youth Association (SSlYA) regarding the prohibition of non-technical personnel without requisite qualifications (as per 7th CPC recommendations) from performing technical duties.
In this regard, it is reiterated that a clear distinction exists between non-technical cadres and technical cadres within the ESIC. Technical cadres require specialized skills and qualifications, often acquired through formal training and certification. Assigning technical duties to non-technical personnel compromises the quality of care provided to patients and undermines the integrity of the technical professions. Therefore, Medical Superintendents of ESIC Hospitals are hereby advised to strictly adhere to the following:
1. Immediately review current staffing practices in their respective hospitals and ensure strict adherence to the defined roles and responsibilities of both non-technical cadres and technical cadres.
2. Take necessary corrective measures to address any existing instances of non-technical personnel performing technical duties.9
Item No. 84 (C-3) O.A. No. 2361/2024
3. Clearly delineate and document the specific duties and responsibilities of each post based on their designated cadre (technical or non-technical).
4. Ensure that only employees belonging to the designated technical cadre are assigned duties requiring technical expertise.
5. Refrain from assigning technical duties to non- technical personnel, even as a temporary measure or workaround.
6. Implement appropriate training and capacity- building programs for JMLTs who have been promoted from Nursing Orderlies, to provide them with the necessary skills and knowledge to fulfilI their assigned duties effectively.
This issues with the approval of Competent Authority."
7. In view of the limited prayer made hereinabove, the O.A. is disposed of with the following directions;
a. In case the order dated 05.02 2024 has reached its logical conclusion, the applicants shall be informed accordingly, within 8 weeks from receipt of copy of this order b. In case the order dated 05.02 2024 has not reached its logical conclusion, the respondents shall invite objections from all the stakeholders within two months from the date of receipt of a certified copy of this order.
10Item No. 84 (C-3) O.A. No. 2361/2024 c. On receipt and consideration of the objections, the respondents shall take the communication dated 05.02.2024 to its logical conclusion within four months thereafter.
8. All pending M.As. stand disposed of accordingly.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
/dd/