Kerala High Court
Employees State Insurance Corporation vs C.Padmavathy Amma on 16 October, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942
OP (CAT).No.48 OF 2018(Z)
AGAINST THE ORDER IN OA 59/2014 DATED 11-10-2017 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS 2 TO 4:
1 EMPLOYEES STATE INSURANCE CORPORATION
PANCHADEEP BHAVAN, NEW DELHI - 110
001REPRESENTED BY ITS DIRECTOR GENERAL
2 THE MEDICAL SUPERINTENDENT
ESI HOSPITAL, EZHUKONE, KOLLAM-696 001.
3 THE STATE MEDICAL COMMISSIONER
EMPLOYEES STATE INSURANCE CORPORATION,
PANCHADEEP BHAVAN, N.S.ROAD, THRISSUR-20.
BY ADVS.
SRI.T.V.AJAYAKUMAR, SC, ESI CORPN.
KUM.P.H.RIMJU
RESPONDENTS/APPLICANT/R1, R5 AND 46:
1 C.PADMAVATHY AMMA,AGED 49 YEARS
W/O ANIRUDHAN PILLAI,
CYTOTECHNOLOGIST, ESIC HOSPITAL, EZHUKONE,
KOLLAM,RESIDING AT ADOOR, KOLLAM DIST.
OP(CAT) No.48/2018
-:2:-
2 UNION OF INDIA REP. BY THE SECRETARY
MINISTRY OF LABOUR & EMPLOYMENT,
SHRAM SHAKTHI BHAVAN,NEW DELHI - 110 001.
3 STATE OF KERALA
REP. BY THE SECRETARY TO GOVERNMENT,LABOUR &
REHABILITATION DEPARTMENT,GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
4 THE DIRECTOR OF INSURANCE MEDICAL SERVICES
THYCAUD, THIRUVANANTHAPURAM-695 014.
R1 BY ADV. SRI.THAMPAN THOMAS
R2 BY ADV. SRI.GIRISH KUMAR.V., CGC
R3-4 BY SRI. T. RAJASEKHARAN NAIR- SR. G.P.
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 08-10-2020,
THE COURT ON 16-10-2020 DELIVERED THE FOLLOWING:
OP(CAT) No.48/2018
-:3:-
JUDGMENT
Dated this the 16th day of October, 2020 Shaffique, J.
The Employees' State Insurance Corporation and its officers have preferred this Original petition challenging an order passed by the Central Administrative Tribunal, Ernakulam in OA No.59/2014. The OA had been filed by the 1 st respondent herein inter alia seeking for a declaration that she is entitled to be appointed as Cytotechnologist or in any other appropriate post under specialist cadre in the service of the ESI Corporation and for other consequential reliefs.
2. The short facts of the case are as under and the parties are described as shown in the Original Application unless otherwise stated.
The applicant Smt.C.Padmavathyamma was appointed as a Cytotechnologist in the service of Directorate of Insurance Medical Services pursuant to a selection conducted by the Kerala Public Service Commission (KPSC for short). The order of OP(CAT) No.48/2018 -:4:- appointment is dated 10/10/2001. She was initially appointed at ESI Hospital, Udyogamandal where the cancer and detection unit was functioning. On account of various factors which cropped up later, and when it was noticed that a large number of cancer cases were reported in Kollam area, where women workers were engaged in the cashew nut factories, the cancer detection unit working in ESI Hospital, Udyogamandal was shifted to ESI Hospital, Ezhukone. Accordingly, applicant was transferred to ESI Hospital, Ezhukone as per order dated 27/5/2008.
3. As a policy matter, the Government of India took over the ESI Hospitals at Asramam, Ezhukone, Parippally and Udyogamandal and it was entrusted to ESI Corporation. Ezhukone Hospital was taken over with the existing staff on 20/4/2010.
4. According to the applicant, she requested for repatriation to the State Service as she felt that the post of Cytotechnologist would be degraded as Lab Technician. She was informed by the Medical Superintendent, ESI Hospital, that no post of Cytotechnologist is available in the State service. Though the applicant submitted a representation to the Director General, ESI Corporation, she was informed that her request cannot be OP(CAT) No.48/2018 -:5:- accepted. All the staff working on deputation in ESI Hospital, Ezhukone was absorbed as per orders issued by the ESI Corporation on 19/12/2011. Though she challenged her absorption before the High Court by filing WP(C) No. 34779/2011, stating that the Central Administrative Tribunal alone have jurisdiction to adjudicate the issue, she was permitted to move the Central Administrative Tribunal.
5. The main contention urged by the applicant is that she is a Cytotechnologist which is a specialist grade and she ought to have been absorbed in a similar post in ESI Corporation. By the order of absorption, she was reverted as Lab Technician. According to her, if no post is available in the same nomenclature, a post has to be created and the salary and grade of the specialist cadre is to be given to the applicant from the date of absorption. Her contention is that, she was appointed as Cytotechnologist in a sanctioned post which remained so until the Ezhukone hospital was taken over by ESI Corporation. She cannot be downgraded as a Lab Technician as the work of a Cytotechnologist stands in a much better position as that of a Lab Technician. It is in the said circumstances that the applicant had OP(CAT) No.48/2018 -:6:- sought for the said reliefs.
6. Respondents 2 and 3 filed their reply statement. According to them, ESI Corporation has sanctioned various posts for ESI Hospital, Ezhukone as per letter dated 14/9/2010. However, there was no post of Cytotechnologist. In the absence of such a sanctioned post, applicant was offered similar/equivalent post of Lab Technician. Reference is made to letter dated 23/9/2011 produced as Annexure R2(a). It is further stated that the post of Lab Technician for the applicant was approved as per recommendation of the Screening Committee. It is further stated that since she was absorbed in ESIC services, gross pay would increase by `4,468/- per month and therefore, it is not a degradation from the post of Cytotechnologist to Lab Technician. Therefore, the contention is that in the absence of a sanctioned post of Cytotechnologist in ESI Corporation, applicant was offered a similar post of Lab Technician. It was recommended by the Screening Committee based on Government of India Guidelines.
7. In the reply statement filed by respondents 5 and 6, it is contended that there was only one post of Cytotechnologist in OP(CAT) No.48/2018 -:7:- the State Insurance Medical Services. Once the Ezhukone Hospital is taken over by ESIC, they have to decide the cadre.
8. The Tribunal after considering the respective contentions directed the ESI Corporation to create the post of Cytotechnologist in Ezhukone ESIC Hospital and directed that the applicant should be adjusted against the said post from the date of her absorption ie., Annexure A5. Direction was also issued to the ESI Corporation to consider a suitable grade on par with other specialty grade offered to Technologists as different from Doctors.
9. The primary contention urged by the learned counsel for the petitioners Sri.T.V.Ajayakumar is that the Tribunal erred in directing creation of a post of Cytotechnologist when there is no such cadre in ESI Corporation or its hospitals. The Tribunal proceeded on the basis that the applicant should have been absorbed in the same post or in a similar post with similar set of duties and responsibilities available in ESI Corporation. Counsel argued that when there was no sanctioned post of Cytotechnologist in ESI Corporation, the applicant was offered a similar/equivalent post of Lab Technician and her pay was increased by `4,468/- per month which itself would indicate that OP(CAT) No.48/2018 -:8:- her post was not degraded in any manner. The screening committee empowered to consider the claim of the applicant had offered to absorb her in the post of Lab Technician instead of Cytotechnologist. Having accepted and fuilfilled the terms and conditions specified in Annexure R2(c), it is argued that applicant cannot take a different view. It is pointed out that ESI Corporation has its own recruitment rules and it is bound by ESIC (Staff and Conditions of Service) Regulations, 1959.
10. On the other hand, learned counsel Sri.Thampan Thomas, appearing on behalf of the applicant would submit that the entire factual circumstances involved in the case require to be considered to arrive at a proper perspective of the claim made by the applicant. She got selection to the post of Cytotechnologist pursuant to a notification issued by KPSC and she was posted as a Cytotechnologist in the State Insurance Medical Services. The issue with reference to her claim had arisen only when ESI Corporation had taken over the hospital at Ezhukone. When such a take over is being made by ESI Corporation, it was incumbent on their part to give a suitable posting to the applicant. But instead of giving a suitable post to her, she was downgraded to OP(CAT) No.48/2018 -:9:- the post of a Lab Technician. The Tribunal had considered the entire matter and has arrived at a finding which, the learned counsel submits that there is no reason for this Court to interfere with the said finding under Art.227 of the Constitution of India.
11. There is no dispute about the factual aspects involved in the case. The sole question centers around the legality of a direction issued by the Tribunal to create a cadre for accommodating the applicant in the ESI Hospital at Ezhukone. Ext.R3 produced along with the counter affidavit filed by the 3 rd respondent is the minutes of the Committee of officers constituted for taking over ESI Hospital, Ezhukone held on 20/4/2010. It was inter alia provided that the existing regular staff of ESI Hospital, Ezhukone who wish to continue on deputation in ESIC Hospital, Ezhukone shall be allowed to do so until further orders. Ext.R3(a) is the minutes of screening committee meeting. As per paragraph 2(c), recommendation of the screening committee was to adopt a yardstick for identification of corresponding pay scales in ESIC and accordingly recommendation was made in respect of Doctors and other staff as per Annexure C. As far as paramedical staff is concerned, it OP(CAT) No.48/2018 -:10:- consists of Cytotechnologist, Pharmacist, Blood Bank Technician, Junior Lab Assistant and Radiographer. As far as Cytotechnologist is concerned, she was placed under the pay scale of Lab Technician. With reference to Pharmacist, there was no change in nomenclature. Blood Bank Technician's nomenclature is also changed as Lab Technician, the Junior Lab Assistant as Lab Assistant in a lesser grade pay and Radiographer in the same nomenclature. It is pursuant to the minutes of the screening committee that by communication dated 26/11/2011, the Director of Insurance Medical Services had sent a letter to the Medical Superintendent, ESI Hospital, Ezhukone stating that the applicant is the only one Cytotechnologist in Insurance Medical Services Department and that is in ESI Corporation Hospital, Ezhukone. Therefore, she cannot be repatriated to state service as there is no other post in the Insurance Medical Services Department.
12. From the above factual circumstances, it is rather evident that though the applicant was appointed to the post of Cytotechnologist and she was working in the said capacity until the ESI Hospital, Ezhukone was taken over by ESI Corporation, OP(CAT) No.48/2018 -:11:- from the date of take over, the said post ceased to exist as there was no such cadre in ESI Corporation Hospital. She could not be repatriated to Insurance Medical Services Department as there was no such post available in Insurance Medical Service as well. The facts therefore disclose that in order to accommodate her, she was placed in the cadre of Lab Technician, which alone was an equivalent post available to her at the relevant time with ESI Corporation.
13. It is well settled that a Court or Tribunal cannot direct creation of a post. At some point of time, a post may become redundant and the Government may have to cancel the same as well. In such circumstances, the employee concerned will have to be placed in a suitable post without affecting his/her service benefits. In this case, apparently, the applicant was put in a cadre by which she was drawing a salary more than what she was drawing while she was in the service of State Government. In the absence of a post of Cytotechnologist in ESI Corporation as per rules, Tribunal erred in directing creation of such a post. An employee does not have any unfettered right to remain in a post or cadre to which he/she is appointed if on account of changed OP(CAT) No.48/2018 -:12:- circumstances, the post may have to be abolished or the cadre cease to exist, the only aspect that requires to be considered is whether his/her right to continue in service has been affected in any manner. In the case on hand, there is no dispute about the fact that the applicant was placed in a better pay than what she was drawing at the relevant time, but the nomenclature of her service was treated as Lab Technician instead of Cytotechnologist.
14. Though she was treated to be on deputation to the ESI Corporation service, the Director of Medical Services had made it clear that there is no such cadre in the Medical Service as well. Such being the factual situation, we do not think that by providing her a suitable post as a Lab Technician in a higher pay, when there was no post of Cytotechnologist in ESI Hospital, the Tribunal was not justified in concluding that there is violation of Article 14 of the Constitution of India.
15. The learned counsel appearing for the petitioners also pointed out that even after taking over by ESI Corporation, her presence in the hospital is treated as that of a Cytotechnologist, though for the purpose of payment of salary and other OP(CAT) No.48/2018 -:13:- allowances, she is ranked with that of a Lab Technician. It might be true that she is a qualified Cytotechnologist and can claim to be so, but, as far as ESI Corporation is concerned, there is no such post or cadre, in which event, it is not for the Tribunal to direct creation of such a post for an individual.
In the light of the above discussion, we are of the view that the order passed by the Tribunal is to be set aside and accordingly we do so. Original Petition is allowed and OA No.59/2014 stands dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp JUDGE
OP(CAT) No.48/2018
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION
NO.59/2014 DATED 22.1.2014
EXHIBIT P2 TRUE COPY OF THE PETITION FOR INTERIM
STAY OF THE ORDER REPATRIATION TO THE
STATE SERVICE BY THE MEDICAL
SUPERINTENDENT AND TO MAINTAIN THE
STATUS QUO IN M.A.NO.19/2014 IN O.A
NO.59/2014 DATED 27.2.2014
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT OF THE
3RD PETITIONER FILE DON BEHALF OF
RESPONDENT NO.2 TO 4 DATE 5/9/2014
EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENTS FILED
BY THE RESPONDENTS 5 AND 6 IN THE OA
(RESPONDENTS 3 AND HEREIN )
DATED ../5/2014
EXHIBIT P5 TRUE COPY OF THE REJOINDER DATED
24.9.2014 IN OA NO 59/2014
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 11.10.2017
IN OA NO.59 OF 2014 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
ANNEXURE-A4 TRUE COPY OF THE ORDER DATED 2/12/29011
BY THE 3RD RESPONDENT
ANNEXURE-A5 TRUE COPY OF THE ORDER NO.3/2011 DATED
19/12/2011 ISSUED BY THE 2ND RESPONDENT
ANNEXURE-A1 TRUE COPY OF THE ORDER NO.E4-
3076/95/DIMS DATED 10/10/2001
APPOINTING THE APPLICANT TO THE
INSURANCE MEDICAL SERVICE
OP(CAT) No.48/2018
-:15:-
ANNEXURE-A2 TRUE COPY OF THE ORDER NO.E4-
14798/2008/DIMS DATED 27/5/2008
ANNEXURE-A3 TRUE COPY OF THE REPRESENTATION
SUBMITTED BEFORE THE DIRECTOR GENERAL ,
ESIC
ANNEXURE-A6 TRUE COPY OF THE INTERIM ORDER ISSUED
BY THE HON'BLE COURT IN WPC
NO.34779/2011
ANNEXURE-A7 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE 4TH RESPONDENT
ANNEXURE-A8 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE 4TH RESPONDENT
ANNEXURE-A9 TRUE COPY OF THE JUDGMENT DATED
5/12/2013 IN WPC NO.34779/2011
ANNEXURE-A10 TRUE COPY OF THE LETTER DATED 15.12.211
BY THE 6TH RESPONDENT
ANNEXURE-A11 TRUE COPY OF THE RECRUITMENT RULES BY
CYTO SCREENER IN AIIMS, NEW DELHI
ANNEXURE-A12 TRUE COPY OF THE INFORMATION RECEIVED
DATED 5/1/2009
ANNEXURE-A13 TRUE COPY OF THE NOTIFICATION ISSUED BY
THE 2ND RESPONDENT SHOWING THE
RECOGNIZED QUALIFICATION FOR
RECRUITMENT TO GROUP A POSTS IN ESI
CORPORATION
ANNEXURE-A14 TRUE COPY OF THE ORDER
F.NO.545/C/18/12/ CHE/OA/80/2014 DATED 24.2.2014 ANNEXURE-A15 TRUE COPY OF THE REPLY DATED 26/2/2014 ANNEXURE- R2 TRUE COPY OF THE ORDER NO.E4.23867/09 DIMS DATED 31/10/2009 OP(CAT) No.48/2018 -:16:- ANNEXURE-R2(A) TRUE COPY OF THE REPLY DATED 23.9.2011 SUBMITTED BY THE ESIC HEAD QUARTERS OFFICE ANNEXURE-R2(B) TRUE COPY OF THE RELEVANT EXTRACT OF THE SWAMY'S MANUEL ON ESTABLISHMENT AND ADMINISTRATION (2010 EDITION) CHAPTER 19 ANNEXURE-R2(C) TRUE COPY OF THE ORDER NO.3/2011 DATED 19/12/2011 ANNEXURE-R2(D ) TRUE COPY OF THE RECRUITMENT RULES FOR NURSING AND PARAMEDICAL POSTS OF ESIC NO.A-12/11/1/2012 MED-VI DATED 15.6.2012 ANNEXURE-A16 TRUE COPY OF THE LETTER NO.E1- 3923/DATED 15/12/2008 WITH ITS TRANSLATION ANNEXURE-A17 TRUE COPY OF THE COMMUNICATION RECEIVED ON THE BASIS OF REPLY GIVEN TO REQUEST MADE BY THE APPLICANT AS REQUEST NO.49121 ANNEXURE-A18 TRUE COPY OF THE EXPERIENCE CERTIFICATE AND PROGRAM WITH ITS TRANSLATION RESPONDENT'S EXHIBITS:
EXHIBIT R1-A TRUE COPY OF THE ADVERTISEMENT ISSUED BY THE ESI DATED 05.12.2013 EXHIBIT R1-B TRUE COPY OF THE CYTOLOGY REPORT ISSUED BY THE DEPUTY MEDICAL SUPERINTENDANT OF THE PETITIONER HOSPITAL DATED 2.6.2018