Central Administrative Tribunal - Chandigarh
Promila Kumari vs Employees State Insurance Corporation on 7 February, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO.1233/2017
PRONOUNCED ON: 07.02.2025
RESERVED ON: 28.01.2025
CORAM:
HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
Promila Kumari, aged 28 years W/O Sh. Ajay Kumar Yadav, D/O
Sh. Daya ram Yadav, resident of House No.231, Phase-II, Ram
Darbar, Chandigarh-160002, (Group C)
.... Applicant
(By Advocate: Sh. R. K. Sharma).
Versus
1. Union of India through Secretary to Government of India,
Ministry of Labour and Employment, Shram Shakti Bhawan, Rafi
Marg, New Delhi-110001.
2. Employees State Insurance Corporation, Panchdeep Marg,
C.I.G. Bhavan, New Delhi-110002, through its Director General.
3. Insurance Commissioner, Employees State Insurance
Corporation, Panchdeep Bhavan, C.I.G. Marg, New Delhi-110002.
4. Medical Superintendent, E.S.I. Corporation Model Hospital,
Industrial Area, Phase-II, Ram Darbar, Chandigarh-160002.
5. Ms. Pooja Sisodiya, Lab Attendant, E.S.I. Model Hospital,
Industrial Area, Phase-II, Ram Darbar Chandigarh, through
Respondent No.4.
....Respondents
(By Advocate: Sh. K.K. Thakur for R. No.1 to 4, Sh. G.S. Jaswal
for R. No.5).
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ORDER
PER: MRS. RASHMI SAXENA SAHNI, MEMBER (A)
1. Present original application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking following relief:-
i) Notice dated 09.09.2017 placed on website by Respondent No.2, copy attached as Annexure A-1, placed on website by Respondent No.2 whereby the vacancy of Lab Assistant which was notified on examination 19.03.2016, 05.12.2012 was for conducted declared result 16.06.2016, merit list was which on on finalized on 20.06.2016 and combined merit list was issued on 24.01.2017, has been shown as 'Nil' without any reason and without quashed. any justification may be
ii) Office Order No. 163 of 2014 issued vide No. A-33/12/2/2011-
Med.VI (IRT) dated 04.03.2014, copy Annexure A-2, supplied to the applicant under RTI vide letter No. 435/Ρ.Κ./2017/R.T.I./150 19/20.09.2017, copy attached 172/Z/ID-dated as Annexure A-3, whereby the post of Lab Assistant at ESIC Model Hospital, Chandigarh was filled by transferring Ms. Pooja Sisodiya, Lab Attendant from ESIC Model Hospital, Gurgaon illegally and against the rules against the post reserved quashed. for OBC Category may be
iii) Directions to the respondents to consider and appoint the applicant against the sole vacancy of Lab Assistant reserved for OBC category which was notified on 05.12.2012 for which examination was conducted 19.03.2016, declared result 16.06.2016, merit list was on finalized on 20.06.2016 and combined merit list was issued on 24.01.2017 and applicant, who belongs to OBC category stood at No.1 in the merit list may be issued.
2. Applicant belongs to OBC Category and possesses the qualification of Diploma in Lab Technician, which she acquired from Guru Gobind Singh Khalsa College, Sector 26, Chandigarh. Post of Lab Attendant Under the respondent ESI Corporation is governed by statutory Recruitment Regulations known as Insurance Employees' Corporation State (Nursing cadre/Posts), Recruitment Regulations, 2010. As per 3 Recruitment Regulations notified by the respondent Corporation on 25.04.2011, the post of Laboratory Assistant can be filled up 50% by Direct Recruitment and 50% by Promotion.
3. Respondent No.4 issued advertisement in December, 2012 for filling in various posts including 1 post of Lab Assistant reserved for OBC Category for which the required qualification was Senior Secondary/10+2 or equivalent with Diploma in MLT from an Institute recognized by the AICTE. Mode of selection was Written Test and the applications were to be submitted from 05.12.2012 to 26.12.2012. Various Hospitals throughout country issued advertisement for filling in various posts but the common examination was conducted by the ESIC Headquarters Office and though the candidates could apply for more than one Hospital, but one was allowed to take examination only for one Hospital. The applicant being eligible submitted her online application for the post of Lab Assistant in ESIC Model Hospital, Chandigarh. She was found eligible and was issued Admit Card bearing Roll No. 1000001513. Examination was held on 19.03.2016 and applicant appeared for the examination at Gian Jyoti Institute of Management and Technology on 19.03.2016 and faired well. The region-wise combined merit list was displayed on the website 22.06.2016, in which name of the applicant figures at Sr. No. 13 and she 4 secured 77.5 marks. Another combined list for the post of Lab Attendant was displayed by the respondents on the website on 24.01.2017 in which name of the applicant figures at Sr. No.1 and total score shown as 78.75.
4. Applicant being at Sr. No.1 in the merit list was waiting for offer of appointment from Respondent No.4. However, when no response was received from the respondents, she applied under RTI and she was informed letter vide No.172/Z/ID- 403/P.K./2017/R.T.I./150 that there was no vacant post of Lab Assistant in ESIMH Chandigarh for the advertisement dated 05.12.2012. She sought further information vide her mail dated 07.09.2017. In response to the RTI mail, respondent No.4 supplied a copy of transfer order of respondent No.5 vide officer order No.163 of 2014 issued dated 04.03.2014, whereby he was transferred from ESIC Model Hospital, Gurgaon to ESIC, Model Hospital, Chandigarh against the vacancy for which advertisement was issued in December, 2012 and selection process was completed. According to applicant there is no provision for transfer and respondent No.5 has been transferred from ESICMH Gurgaon to ESICHM Chandigarh in violation of the rules as there is no provision for filling in vacancy by transfer and it was to be filled in 50% by direct recruitment and 50% by promotion. Even otherwise had the respondents Corporation intimated the applicant that there 5 is Nil vacancy in Chandigarh, then she would have appeared in the common examination for any other hospital, hence she has been deprived of her valuable right of consideration.
5. Without any reason and without any justification the ESIC Model Hospital, Chandigarh issued notice on 09.09.2017 for cancellation of the examination conducted on 19.03.2016. Even otherwise there are still number of vacancies, and if the respondents want to retain private respondent against this vacancy, but there is no occasion for the respondents to convert solitary vacancy of OBC by transferring private respondent against the vacancy reserved for OBC, particularly when she does not belong to OBC category, thus by giving OBC vacancy to non-OBC when the candidate for the same was available, who was duly in the merit list. It has been submitted by the applicant that after 2015, there is no requirement of viva-voce and interview has been dispensed with. Selection is only on the basis of written test thus from this angle also, applicant is entitled for appointment she being OBC candidate and no candidate of physically handicapped category was available.
6. Respondents No.1 to 3 have filed written statement dated 30.11.2017 submitting therein that in the respondent Hospital, there number of posts of Lab Assistant is 5 only. When in 2012, vacancy was advertised, one was available but that one 6 post was transferred on inter-regional basis vide Order No.163 of 2014 and in any case, vide a public notice dated 9.5.2017, Annexure R-1, the selection in question for the post was also cancelled. As such even empanelment of a candidate does not create any right in the applicant to claim the appointment and there is no bar in filling up the post by way of transfer.
7. That in the case of Shankarsan Dash v. Union of India, (1991) 3 SCC 47, it has been held that even a candidate on the merit list does not have any indefeasible right to an appointment, even if a vacancy exists. A similar view has been taken in several other cases such as in Asha Kaul and another v. State of Jammu and Kashmir and others, (1993) 2 SCC 573 and Food Corporation of India and others v. Bhanu Lodh and others, (2005) 3 SCC 618. The Hon'ble Supreme Court in State of Madhya Pradesh and others v. Sanjay Kumar Pathak and others, (2008) 1 SCC 456 that if a vacancy exists and it is not filled up, there must be some reasonable explanation for not doing so. In coming to this conclusion, the Hon'ble Supreme Court relied upon K. Jayamohan v. State of Kerala, (1997) 5 SCC 170 and Munna Roy v. Union of India, (2000) 9 SCC 283. This view has been consistently expressed by the Hon'ble Supreme Court in several other decisions such as R.S. Mittal v. Union of India, 1995 Supp (2) SCC 230 and A.P. Aggarwal v. Government of NCT of Delhi and another, (2000) 1 SCC 600. 7 Thus, no one has indefeasible or vested right to an appointment, whether he is on the waiting list or on the merit list, but if there is some reasonable basis for not filling up an existing vacancy or not offering an appointment to a meritorious candidate then Hon'ble Courts seldom interfere in such like matters.
8. Respondent No.5 has filed a separate detailed reply submitting therein that he was appointed in pursuance to the advertisement issued in the year 2010 and the last date for submitting the applications for the post of Lab Assistant was fixed as 04.06.2010 and the selection process completed by issuing offer letter, and accordingly the answering respondent submitted her joining report within the stipulated period and working as Lab Assistant till she was transferred on Inter Regional Transfer vide Annexure A-2 dated 04.03.2014 and is continuously working on this post till date. Whereas the applicant applied for the post of Lab Assistant in pursuance to the advertisement issued in the end of year 2012 for which the examination was conducted on 19.03.2016 and the result of the same was declared on 16.06.2016. The merit list was finalized on 20.06.2016 and combined merit list was issued on 24.01.2017. In the advertisement Annexure A-7, clause (m), it is mentioned that the Corporation reserves the right to conduct written or online examination and to cancel the 8 recruitment as well as the notified vacancies at its discretion and such decision will be binding on all concerned in the event of cancellation of notified vacancies'. In view of this fact, the Corporation checked up the status of vacancies and issued a corrigendum Annexure A-I, before issuing offer letter for appointment, whereby it was notified that no post of Lab Assistant exists in the Corporation at Chandigarh. Once there is no post available on the date when the applicant became eligible for appointment, he has no right to claim the relief. Not only this, mere entering the name of person in selection list does not confer any right for appointments on the person shown in the list. As such, no right vest in the applicant to challenge the appointment of the applicant merely on the basis of her name appearing in the merit list. Further, applicant is not an employee of the ESI Hospital and the provision of Central Administrative Tribunal Act are not at all attracted to the facts of the present case. The applicant has also no cause of action against the answering respondent who is working on the post since 2014 when the examination for the post was not conducted.
9. It has further been submitted that answering respondent was transferred as Lab Assistant at ESIC Model Hospital, Chandigarh from ESIC Model Hospital, Gurgaon on 04.03.2014 vide Annexure A-2 and that transfer from interregional offices 9 was made along with five others who were earlier working at Baddi, Delhi, Chennai, Noida, Baddi namely Arun Kumar, A.K. Kala, K.Y. Archna, J. Jyohnish and Jose Johan, respectively. The transfers cannot be challenged partially and the other persons have not been arrayed as party. The applicant has no OBC certificate issued on 18.06.2007, which is more than 5½ years prior to the date of advertisement and does not meet with the requirement of law to be considered as the candidate for the post reserved for OBC.
10. We have perused facts on record and find that the applicant belongs to OBC category and possesses qualification of Diploma in Lab Technician which was required as per advertisement issued by respondent No.4 in December 2012, for filling various posts including one post of Lab Assistant reserved for OBC category. Mode of selection was written test which was cleared by the applicant. In the region-wise combined merit list displayed on the website 22.06.2016, name of the applicant figures at Sr. No. 13 and she secured 77.5 marks. Another combined list for the post of Lab Attendant was displayed by the respondents on the website on 24.01.2017 in which name of the applicant figures at Sr. No.1 and total score shown as 78.75. The applicant was waiting for appointment and not having received any offer of appointment applied for information under RTI and was informed vide letter 10 No.172/Z/ID-403/P.K./2017/R.T.I./150 that there was no vacant post of Lab Assistant in ESIMH Chandigarh. On further correspondents, respondent No.4 supplied copy of transfer order of respondent No.5 issued vide order of No.163 of 2014 dated 04.03.2014, whereby respondent No.5 had been transferred from ESIC Model Hospital, Gurgaon to ESIC, Model Hospital, Chandigarh against the vacancy for which advertisement was issued in December, 2012. Thereafter, we find a corrigendum dated 09.09.2027 (Annexure A-1) has been issued showing nil vacancy against lab assistant post.
11. We find that this whole process of advertising vacancy in 2012 and thereafter issuing interregional transfer in 2014 and corrigendum in 2017 that there is nil vacancy lacks transparency. The respondents have also put on record amendment in the existing recruitment regulation for the post of Lab Assistant in ESIC Corporation which came into effect from 08.01.2022. However, the same have been issued on 11.01.2022. Thereafter, the respondents have placed on record letter dated 12.11.2024 showing that subsequent to IRT vacancy of Lab Assistant got nullified and it is not feasible to adjust candidate in the absence of vacancy for the relevant year. Furthermore vacancy advertised is subject to change.
12. In view of discussion above, Tribunal was constrained to ask for vacancy position as on date. The respondents have filed 11 the details which shows Lab Assistant Cadre now, designation having been changed to Junior Medical Laboratory Technologist, out of 7 sanctioned post, 6 vacancies exist and only one is in position (presumably IRT). Respondents have also clarified that 2 vacancies are to be filled up through DPC and of remaining 4 vacancies 3 are unreserved and one for OBC to be filled through direct recruitment.
13. In the light of above information, we find the applicant, having cleared the recruitment examination and having secured 1st rank among OBC candidate and having been denied the appointment because of IRT in case of respondent No.5, is very much eligible to be appointed against this vacancy. Accordingly, we direct the respondents to appoint the applicant against this OBC vacancy from the date this vacancy arose with seniority, however, pay and allowance are to be paid to the applicant from the date of physically joining the post.
14. The O.A. is allowed in the above terms. Pending MA(s), if any, shall also stand disposed of. No costs.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA) MEMBER (A) MEMBER (J) /kr/