Central Administrative Tribunal - Delhi
Dr. Cecil C. Khakha S/O T. O. Khakha vs Director General on 19 March, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.2159/2008 This the 19th day of March, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) 1. Dr. Cecil C. Khakha S/O T. O. Khakha, R/O 202/C, Arjun Nagar, New Delhi-110029. 2. Dr. Rakesh Bansal S/O R. L. Bansal, R/O 254/6-A, Railway Officers Flats, Panchkuian Road, New Delhi-110001. 3. Dr. Pravin Kumar Gautam S/O Bal Kishan, R/O C-2/F-1 (HIG Flats), Dilshad Colony, Delhi-110095. 4. Dr. Ram Avtar S/O Kamta Prasad, R/O C2/67, Yamuna Vihar, Delhi-110095. 5. Dr. Rakesh Kumar Jangid S/O P. R. Jangid, R/O 84, Sector 12, DDA Pocket-1, Dwarka, New Delhi-110078. 6. Dr. Neeraj Varma S/O G. S. Varma, R/O M-12, Kirti Nagar, New Delhi-110015. 7. Dr. Usha Bhoria D/O H. S. Bhoria, R/O B-13, Vasant Apartments, Plot No. C-58/2, Sector-62, NOIDA-201306 (UP). 8. Dr. Pritam Bandyopadhyay S/O Amal Kumar Banerjee, R/O 4-A, Mahim Haider Street, P.O. Kalighat, Kolkata-700026. Applicants ( By Shri M. P. Jha and Shri Ram Ekbal Roy, Advocates ) Versus 1. Director General, Employees State Insurance Corporation, Panchdeep Bhawan, CIG Road, New Delhi-110002. 2. Secretary, Union Ministry of Labour & Employment, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001. Respondents ( By Mrs. Rekha Palli, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Dr. Cecil C. Khakha and seven others, employees of Employees State Insurance Corporation (ESIC), have filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking a direction to be issued to the respondents to rectify the date of promotion in the impugned order No.250 of 2006, as follows:
(i) In the case of the Applicant No.1 it should be 5.4.2002 instead of 25.1.2004;
(ii) In the case of the Applicant No.2 it should be 15.2.2002 instead of 16.7.2004;
(iii) In the case of the Applicant No.3 it should be 5.4.2002 instead of 24.11.2003;
(iv) In the case of the Applicant No.4 it should be 12.9.2002 instead of 12.9.2004;
(v) In the case of the Applicant No.5 it should be 5.4.2002 instead of 18.3.2004;
(vi) In the case of the Applicant No.6 it should be 5.4.2002 instead of 8.1.2004;
(vii) In the case of the Applicant No.7 it should be 5.4.2002 instead of 9.2.2004;
(viii) In the case of the Applicant No.8 it should be 5.4.2002 instead of 22.11.2003; As may appear from the relief asked for by the applicants, they have indeed been promoted and, therefore, the limited dispute is with regard to the date of their entitlement or eligibility for promotion.
2. The facts as projected in the Application for the relief indicated above would need a necessary mention. The same, culled out from the Application, would reveal that the applicants were appointed in ESIC between 1995 and 1996. It is their case that their recruitment into service was done vide open ESIC advertisement dated 8.10.1994. They had to undergo interview and later medical fitness test. Qualifications and experience required were similar to those required for analogous posts in Central Health Service (CHS). The first applicant has worked in three ESIC hospitals till date, and is presently working at ESI Hospital, Okhla Industrial Area, Phase-I, New Delhi as Specialist Grade-I and HOD (Department of Pediatrics). He was designated as Specialist Grade-I and HOD (Pediatrics) following his promotion vide office order No.250 of 2006 dated 17.8.2007, and is now drawing pay scale of Rs.14300-18300 + NPA. Present grievance of the applicant stems from this office order against which he made representation to Director General on 7.9.2008, requesting to rectify the date of promotion so as to make it on completion of six years instead of eight years of service, as per DACP scheme, and accord pay fixation under FR 22 (I) (a) (1) instead of FR 22 (I) (a) (2). The applicant claims that the first issue pertains to the date of promotion, which should be 5.4.2002 instead of 25.1.2004. It is the case of the applicants that Dynamic Assured Career Progression (DACP) Scheme provides for promotion to specialist Grade-I after six years of regular service as Specialist Grade-II level, and that this was the recommendation of the 5th Central Pay Commission (CPC) which was accepted by the Central Government vide letter dated 5.4.2002 addressed to all participating units of Central Health Service including ESIC. The DACP scheme is stated to have been recently approved by the Union Ministry of Labour and Employment in respect of ESIC doctors on the directions of this Tribunal in OA No.1036/2007. The second issue pertains to pay fixation under FR 22 (I) (a) (1) instead of FR 22 (I) (a) (2), for the reason that the word Dynamic in DACP scheme is referred to as promotion with financial upgradation and not placement, as referred to in the impugned order No.250 of 2006, and secondly, because in respect of the applicants immediate senior batch of Specialists, pay fixation was done under FR 22 (I) (a) (1) vide ESIC order No.93 of 2003 dated 22.5.2003. Further, the office of Specialist Grade-I involves duties and responsibilities of greater importance, and the applicants are now officially designated as HOD. The applicants may be posted as Medical Superintendent of small hospitals at this level, such as ESI Hospital at Rohini, Delhi or ESI Hospital at Chandigarh. Still further, the applicants do not expect any other promotion in their whole service career as in the case of other Specialists in the cadre. It is averred that the maximum a Specialist can attain is the Senior Administrative Grade in ESIC, which is limited to four posts for the whole cadre. It is the case of the applicants that DACP scheme of 5th CPC as applicable to them was accepted by the Government of India vide letter dated 5.4.2002 to be implemented in all participating units of Central Health Service including ESIC, and that the matter was considered in the Union Ministry of Health and Family Welfare in consultation with other Ministries, and it was done after taking approval of the committee of Secretaries and concurrence of Ministry of Finance vide UO dated 26.3.2002. It is further the case of the applicants that on the directions of this Tribunal vide order dated 31.1.2008 in OA No.1036/2007, Ministry of Labour and Employment has approved the DACP scheme for doctors of ESIC on the pattern being followed in Central Health Service, and yet the ESIC in its order dated 19.3.2008 has now denied the benefit of DACP scheme to the applicants by applying it prospectively from 1.3.2008.
3. On the pleadings as mentioned above, it is averred that inaction/action of the respondents is illegal, arbitrary, perverse, against administrative propriety and de hors the law. Respondents are stated to have violated the principles of natural justice and the rights guaranteed under Constitution of India. As per provisions contained in Section 17(2)(a) of the ESIC Act, 1948 (hereinafter to be referred as the Act of 1948), the method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation would be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scale of pay, unless the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, but in that case, it has to obtain prior approval of the Central Government. As per regulation 7 of the ESIC (Pay, Leave, Provident Fund and Age of Retirement) Regulations, 1959 (hereinafter to be referred as the Regulations of 1959), the scales of pay attached to the posts under the Corporation would be as set out in the First Schedule, and the fixation of pay, grant of increment and connected matters, would, in the case of an employee, be governed by provisions contained in Fundamental Rules and supplementary Rules (FRSR) framed thereunder as applicable, from time to time, to employees of the Central Government. The ground which has been mentioned in the Application, and primarily urged during the course of arguments, is that once the rules and regulations of the Corporation provide parity with regard to all matters with the officers and employees of the Central Government, and when promotion to Specialist Grade-I in view of the recommendations made by the 5th CPC, accepted by all Government agencies, is after six years of service in the feeder cadre, the applicants would be entitled to such promotion after six years and not after eight years, as has been done by the respondents. Challenge to the office order dated 17.8.2006 (Annexure-1) is limited to the extent the applicants have been placed in the pay scale of Rs.14300-400-18300 on the post of Specialist Grade-I from the post of Specialist Grade-II after completion of eight years of service as Specialist Grade-II, instead of the same being made applicable after six years of such service.
4. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing their reply, contested the cause of the applicants. It has inter alia been pleaded in the reply that appointment of the applicants has been made as per recruitment regulations of the ESIC. It is denied that the DACP scheme has been approved by the Union Ministry of Labour and Employment for ESIC doctors on the basis of any directions issued by this Tribunal, and that the Tribunal vide order dated 31.1.2008 had only directed the Ministry to take final decision on the proposal sent by ESIC within a period of two months. It is pleaded that merely because the DACP scheme providing for promotion to Specialist Grade-II was accepted by the Government vide letter dated 5.4.2002, it cannot imply that the same had to be implemented in ESIC also with effect from the same date. It is denied that ESIC was a participating unit in that scheme. The promotions in ESIC are stated to be granted on the basis of recruitment regulations for the relevant posts as notified by ESIC in the final gazette and as amended from time to time as existing on the date of the DPC. Since promotion to the Grade is time bound and in situ pay fixation is allowed under FR 22 (I) (a) (2), it is admitted that pay fixation of Specialist Grade-I under FR 22 (I) (a) (1) vide order dated 22.5.2003 was an administrative lapse and that no pay fixation has been allowed under FR 22 (I) (a) (1) thereafter. Insofar as, order dated 31.1.2008 passed by this Tribunal is concerned, it is urged that the applicants are misinterpreting the same. It is denied that the DACP scheme of 5th CPC was automatically applicable to the applicants or that ESIC is a participating unit. It is pleaded that as per proviso to Section 17(2)(a) of the Act of 1948 and regulation 24 of the Regulations of 1959, the ESIC can make a departure or exception with approval of the Central Government, and, therefore, in the present case the ESIC got approval of the Central Government for full extension of the DACP scheme to ESIC doctors on 17.3.2008 only, and that it is only on the basis of this approval that ESIC made a scheme applicable to its doctors w.e.f. 1.3.2008. It is then pleaded that in the past also while Specialist Grade-II (Senior Scale) under Ministry of Health & Family Welfare with four years of service were being considered for promotion to the post of Specialist Grade-I, the ESIC was allowing promotion to such Specialists with six years service as Specialist Grade-II (Senior Scale) strictly on the basis of recruitment regulations for the relevant post. The medical set up in ESIC is stated to be different than the one under Ministry of Health and Family Welfare, Government of India both in form of functioning as well as in the nature of duties and, therefore, necessary provisions have been made in the Regulations of 1959 from time to time, and further that even in the OM dated 14.11.2008 of the Ministry of Health and Family Welfare, implementing the Tikku Committee recommendations, other organizations like Railways, ESIC etc. have been allowed to examine the implementation of these recommendations as per recruitment of their particular organization.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
6. Before we may proceed in the matter, we may mention at the very outset that the applicants have indeed been placed in the pay scale of Rs.14300-18300 on the post of specialist Grade-I from 2004, even though the order to that effect might have been passed on 17.8.2006. For that precise reason, the prayer of the applicants is also to place them in the grade aforesaid from 2002 instead of 2004. The relief asked for by the applicants, i.e., their placement in the grade mentioned above from 2002 emanates from the Central Government letter dated 5.4.2002 (Annexure-7) with the subject Recommendation of 5th Central Pay Commission regarding Dynamic Assured Career Progression (DACP) Scheme for officers of the Central Health Service Implementation thereof. The letter aforesaid has been addressed to all participating units of the Central Health Service. It has inter alia been mentioned in the letter aforesaid that Specialists officer of the Non Teaching and Public Health sub cadres will be promoted from Specialist Grade II (Junior Scale) (Rs.10000-15200) to Specialist Grade II (Senior Scale) Rs.12000-16500) on completion of 2 (two) years of regular service. Specialist Grade II (Senior Scale) officer with 4 (four) years regular service as Specialist Grade II (Senior Scale) will be promoted to Specialist Grade I (Rs.14300-18300). In other words, officers of Teaching, Non Teaching and Public Health sub cadres will be promoted to Specialist Grade I/Professor (Rs.14300-18300) on completion of 6 (six) years of service. Specialist Grade II (Super Specialties)/Associate Professor (Super Specialties) in the pay scale of Rs.12000-16500 will be promoted to Specialist Grade I/Professor (Rs.14300-18300) on completion of 4 (four) years of regular service in the grade. The amendments to the Central Health Service Rules, 1996, wherever necessary, consequent upon the above decisions, shall be made in due course. Learned counsel representing the applicant would contend that the letter aforesaid covers the issue and the same is binding upon the respondents. ESIC is said to be a participating unit of the Central Health Service, and it cannot simply ignore the directions contained in the letter dated 5.4.2002. The letter aforesaid goes even to the extent of directing amendments to be made to the CHS Rules, 1996 wherever it may be necessary, consequent upon the decision taken in the matter. In support of his contention as noted above, the learned counsel has placed reliance upon a judgment of this Tribunal in OA No.1908/2007 decided on 25.3.2008 in the matter of Dr. A. V. Raju v Union of India & others, recorded by this very Bench, which has attained finality as writ and SLP filed against the same have since been dismissed by the Honble High Court and Supreme Court.
7. Mrs. Rekha Palli, learned counsel representing the respondents, per contra, would contend that ESIC is not a participating unit of the Central Health Service, and the service conditions of its employees are governed by its own regulations, and that the judgment recorded by this tribunal in the matter of Dr. A. V. Raju (supra) would not be applicable to the facts of this case. We may first refer to the judgment recorded by us in Dr. A. V. Rajus case. Facts of the case aforesaid reveal that Dr. A. V. Raju, a specialist doctor, working in ESIC had prayed that his age of superannuation should be 62 years and not 60, as the same stood enhanced by an amendment dated 4/15.1.2007 in rule 56 of Fundamental Rules (FR). Despite that, Director General, ESIC vide order dated 20.9.2007 rejected his prayer, thus retiring him at the age of 60. Service conditions of members of staff of ESIC are governed by Section 17(2)(a) of the Act of 1948, which reads as follows:
17(2)(a) The method of recruitment, salary and allowances, discipline and other conditions of service of the incumbents of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay:
Provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government. ESIC formulated the Employees State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959. Regulation 7 (2) reads thus:
7(2) The regulations relating to the grant of leave, benefit of gratuity and provident fund to the employees and the age at which they shall retire or shall be retired from service, shall be as set out in the Second Schedule. The Second Schedule of the Regulations, so far as the age of retirement is concerned, reads as follows:
As may be provided from time to time, by the Central Government in respect of corresponding category of Central Government servants in Rule 56 of the Fundamental Rules. By order dated 16.11.2006 the age of superannuation of Specialist doctors of CHS belonging to Teaching, Non Teaching and Public Health sub cadres, was enhanced from 60 to 62 years. FR 56 was amended vide DOP&T notification dated 4/15.1.2007. The amendment reads thus:
(b)(b) the age of superannuation in respect of specialists included in the Teaching, Non-Teaching and Public Health Sub-cadres of Central Health Service shall be 62 years. On the basis of facts and relevant provisions dealing with age of superannuation, as referred to above, we held as follows:
A reading of the above provisions leaves no manner of doubt that the age of retirement of employees of ESIC will be the same as prescribed by the Central Government in respect of corresponding category of Central Government servants in Rule 56 of the Fundamental Rules. There is no scope for interpreting Rule 17(2)(a) in any manner other than that prior approval of Central Government would be necessary only if a departure from the rules or orders was to be made. The learned counsel for the applicant is right in asserting that in this case the need for taking approval of the Central Government would have arisen if ESIC decided not to enhance the age of superannuation. The letter dated 23.07.2007 of DOP&T (Anex.R-1) quoted by the learned counsel for the Respondents would not help the respondents cause. There is no doubt that the Cabinet would have approved it for the CHS doctors. The matter would have been taken to the Cabinet by the Ministry of Health for enhancement of age of superannuation of specialist doctors of CHS belonging to certain categories. However, this decision would, as a corollary, apply to the specialist doctors of ESIC by virtue of ESIC Act, 1948 and Regulations framed thereafter, unless the Union Cabinet specifically decided not to extend it to the specialist doctors of ESIC. Put another way, it is clear from the ESIC Act, 1948 and Regulations, 1959 that whatever decision would be taken regarding the age of superannuation of specialist doctors of CHS, it would apply mutatis mutandis to specialist doctors of ESIC. The respondents have not even placed on record the specific query made to DoP&T and whether the DoP&T was made aware of the law governing the service conditions of the specialist doctors of ESIC. Be that as it may, the respondents have not clarified as to why the need arose for making a reference to DoP&T. This is an afterthought. The ESIC had already approved that the decision to enhance the age of superannuation of Specialist doctors of ESIC to 62 years would apply from 1st July, 2007.
8. In our considered view, insofar as promotion and placement in a particular pay scale is concerned, the decision recorded by us in Dr. A. V. Raju (supra) would have no relevance whatsoever. Section 17(2)(a) of the Act of 1948 would clearly stipulate that the method of recruitment, salary and allowances, discipline and other conditions of service of the members of staff of ESIC would be such as may be specified in the regulations made by ESIC. The ESIC had indeed framed Regulations of 1959, and Regulation 7(2) thereof would clearly stipulate that insofar as, age of retirement of an employee is concerned it would be as set out in the Second Schedule, and the Second Schedule stipulates that the age of retirement would be same as may be prescribed from time to time by the Central Government in respect of corresponding category of Central Government servants in FR 56, which was amended to raise the age of retirement at 62. Insofar as, promotion and placement in a particular grade are concerned, they are to be governed by regulations to be framed by ESIC. Regulation 7(1) deals with scales of pay attached to posts under the Corporation and which have to be as set out in the First Schedule. Regulation 7(2) deals with grant of leave, benefit of gratuity and provident fund to the employees and the age at which they shall retire, as set out in the Second Schedule. Fixation of pay, grant of increment and connected matters, are to be governed by provisions contained in the Fundamental Rules and Supplementary Rules framed thereunder, as applicable from time to time. It may be pertinent to mention that with regard to matters covered under Regulation 7 the corresponding/relevant provisions have been made in the Schedule. Insofar as, the other service matters of the employees are concerned, they are dealt with in Regulation 24. The same reads thus:
In respect of all other matters relating to the conditions of service of employees, for which no provision or insufficient provision has been made in these regulations, the rules applicable from time to time to the corresponding category of Central Government servants shall apply, subject to such modifications and variations or exceptions, if any, as the Director General may, with the approval of the Standing Committee, by order from time to time, specify.
9. What clearly emerges from the provisions contained in Section 17(2) of the Act of 1948 and Regulations 7(1), 7(2) and 24 of the Regulations of 1959 is that insofar as the method of recruitment, salary and allowances, discipline and other conditions of service are concerned, the Corporation has to regulate the same in its Regulations. The Regulations of 1959, insofar as specific conditions of service are concerned, have since already been mentioned above. Regulations 7(1) and 7(2) do not deal with promotion, as is the case before us. Whatever is not provided specifically in Regulations 7(1) and 7(2), has been provided in Regulation 24. In the matter of promotion, thus it is the Regulation 24 which shall be applicable, as it specifically says that the same is in respect of all other matters relating to conditions of service of employees, for which no provision or insufficient provision has been made in the Regulations. It is true that with regard to matters relating to such conditions which have not been specifically provided in the Regulations, rules applicable from time to time to the corresponding category of Central Government servants shall apply, but the same would be subject to such modifications and variations or exceptions, if any, as the Director General may, with approval of the standing committee, by order from time to time, specify. The rules as applicable from time to time to the corresponding category of Central Government servants are not automatically applicable. The same are subject to such modifications and variations or exceptions, if any, as the Director General, with approval of standing committee, may specify from time to time. It is the positive case of the respondents that DACP scheme of the 5th CPC was not automatically applicable to the applicants or ESIC. It is also the case of the respondents that ESIC is not one of the participating units in the order dated 30.1.2008. In the instant case, ESIC has approval of the Central Government for extension of DACP scheme to its doctors on 17.3.2008 only. It is also the case of the respondents that it is only on the basis of this approval that ESIC made the scheme applicable to ESIC doctors w.e.f. 1.3.2008, which, during the course of arguments, we were informed, has been made applicable from 2004. In the past as well, while Specialist Grade-II (Senior Scale) under Ministry of Health & Family Welfare with four years service were being considered for promotion to the post of Specialist Grade-I, ESIC had been allowing promotion to such Specialists with six years service as Specialist Grade-II (Senior Scale), strictly on the basis of recruitment regulations for relevant posts.
10. In view of the discussion made above, we do not find any illegality in the order making DACP scheme of the 5th CPC applicable to the applicants from 2004 instead of 2002. The applicants, in our view, cannot insist upon promotion in the scale of Rs.14300-18300 as Specialist Grade-I on completion of six years of service in the feeder grade. There is no merit in this Application, which we hereby dismiss, leaving, however the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/