Central Administrative Tribunal - Delhi
Vikas Verma vs Employees State Insurance Corporation on 17 April, 2025
1
OA No. 1298/2018
Item No.33/C-5
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1298/2018
Reserved on : 25.03.2025
Pronounced on : 17.04.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Vikas Verma,
S/o Surender Singh Verma
Aged about 24 years
Group-C
R/o Bhagat Singh Colony, Rohtak Road
Near of Kalpur Chungi, Sonepat
Haryana
Appeared in the examination for the
Post of Nursing Orderly.
.. Applicant
(By Advocate: Mr. Sudarshan Rajan with Mr. Ramesh Rawat)
Versus
1. Union of India & Ors.
Through the Secretary
Ministry of Labour
Panchdeep Bhawan, New Delhi.
2. Director (Medical)
Directorate (Medical) Delhi
ESI Scheme, ESI Dispensary Complex
Tilak Vihar, Tilak Nagar
New Delhi.
3. Assistant Director (Medical)
Directorate (Medical) Delhi
ESI Scheme, ESI Dispensary Complex
Tilak Vihar, Tilak Nagar
New Delhi.
.. Respondents
(By Advocate: Mr. Sushil Kumar Tripathi, Mr. Murari Kumar)
2
OA No. 1298/2018
Item No.33/C-5
ORDER
Hon'ble Dr. Anand S. Khati, Member (A) In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is aggrieved by the Order dated 08.03.2018, whereby his candidature for the post of Nursing Orderly has been cancelled on the ground that he does not acquire experience from a recognised institution. By virtue of this O.A., he has sought for the following reliefs:-
"A. Quash and set aside the impugned order dated 08.03.2018 passed by the respondents.
B. Direct the respondents, to consider the experience certificate furnished by the Hospital authorities read with the reification issued by it as meeting the requirement of experience and in terms of observation of the Hon'ble High Court in Ankur Arora case, and issue necessary offer of appointment to the applicant in the post of Nursing Orderly keeping his merit position in the selection, decide the date of appointment and also fixation of pay and other attendant aspects.
C. This Hon'ble Tribunal may pass such other suitable order or orders as this Tribunal may deem fit to meet the ends of justice."
2. Drawing attention to the facts of the case, learned counsel for the applicant contended that the candidature of the applicant has been cancelled vide impugned order dated 08.03.2018 (Annexure A-
1), Column 5 of the same reads as follows:-
Category/ SI Name of the Reason of Roll Number shortlisted No. Candidate cancellation against Vikas Verma The candidate acquired the
5. 22227180094 OBC/UR DOB- experience from 24.07.1994 Bansal Hospital, 3 OA No. 1298/2018 Item No.33/C-5 Rohtak Road, Sonepat, Haryana.
Confirmation/reply dated 20.12.2017 of Bansal Hospital confirmed that the hospital is approved for operating MTP & Ultrasound services.
Thus, the candidate does not fulfill the eligibility criteria as per RRs of Nursing Orderly.
3. He also drew attention to the eligibility conditions as well as the RRs for the post, which stipulates in column 16 (page no. 21) as under:-
Educational & other Age (As per Post Name of qualification (As per existing S.No. Code the post existing Recruitment Recruitment Regulations) Regulations) Matriculation or equivalent from recognized Board.
Elementary
18-27 years.
knowledge of 1st
(Relaxable up to 37
Aid. One year
years in case of
Nursing experience in
16. 18 Government
Orderly handling and
Servants and
dressing wounds in
employees of ES
Govt.
Corporation).
approved/Registered
Nursing
Home/Hospital.
(+,++)
4. In the present matter, the applicant though possesses the requisite qualification, but the rejection is solely on the ground that the experience acquired by the applicant from concerned hospital, i.e. Bansal Hospital, Rohtak Road, Sonepat, Haryana, is not notified 4 OA No. 1298/2018 Item No.33/C-5 under the Clinical Establishment Act that is applicable to the State of Haryana. The said enactment came into effect by way of an Ordinance dated 23.01.2018 (placed at page 46 of rejoinder) notified by the State of Haryana, which reads as under:-
"to adopt the Clinical Establishments (Registration and Regulation) Act, 2010 in the State of Haryana.
Promulgated by the Governor of Haryana in the Sixty-eighth Year of the Republic of India.
Whereas the Legislature of the State of Haryana is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action;
Now, therefore, in exercise of the powers conferred by clause (l) of article 213 of the Constitution of India, the Governor of Haryana hereby promulgates the following Ordinance:-
1. (1) This Ordinance may be called the Haryana Clinical Establishments (Registration and Regulation) Adoption Ordinance, 2018.
(2) It shall apply to all clinical establishments having more than fifty beds.
(3) It shall come into force on the date of its publication in the Official Gazette
2. The State Government hereby adopts the Clinical Establishments (Registration and Regulation) Act, 2010 (Central Act 23 of 2010)."
5. Opposing the O.A., learned counsel for the respondents relied upon the averments contained in the counter affidavit, specifically para no. 12 (page 62 of the OA), which reads as under:
"The answering respondents submit that the above mentioned approval and registration is for operating MTP and Ultrasound Clinic. Further, registration for operating MTP and Ultrasound Clinic and registration for operating Nursing Home/Hospital are different subjects. The Clinical Establishments (Registration and Regulation) Act, 2010 has been enacted by the Central Government to provide for registration and regulation of all establishments in the country with clinical a view to prescribe the minimum standards of facilities and services provided by them. The Haryana Govt. Law and Legislative Department vide their 5 OA No. 1298/2018 Item No.33/C-5 Gazette Notification dated 28.03.2014 had notified the Haryana Clinical Establishments Act, 2014. Hence, registration for running MRT and Ultrasound Clinic is not appropriate according to RRs. Copy of Gazette Notification dated 28.03.2014 is annexed herewith as Annexure R-4."
5.1 He also relied upon the Order passed by a coordinate Bench of this Tribunal in O.A. No. 3429/2016 decided on 30.01.2019 titled Mohan Kumar vs Director General, ESIC & Ors. Para nos. 5 and 6 of the same read as under:-
"5. The counsel for the respondents brought to our notice the declaration given by the applicant in the application form which clearly states that in case of giving any false or incorrect information, then the candidature or appointment is liable to be summarily cancelled or terminated without notice. The said declaration is extracted below:
"I hereby declare that the information furnished in the application are true, complete and correct to the best of any my knowledge and belief. I am fully aware that in the event of any information being found false or incorrect at any stage, my candidature/appointment is liable to summary cancellation/ termination without notice or any compensation in lieu thereof".
The counsel for the respondents further submitted that they verified with respect to the registration /recognition/approval certificate of the said Shivam Bansal Hospital from the Directorate General of Health Services, Govt. of NCT of Delhi and the said Directorate vide their letter dated 13.01.2016 communicated to the respondents that the said Shivam Bansal hospital was not recognized during the relevant period.
6. In view of the above facts and circumstances, we are of the opinion that the impugned order do not suffer from any illegality."
5.2 Further, the learned counsel for the respondents referred to the experience certificate dated 15.12.2012 of Bansal Hospital (Annexure A-5) which has been relied upon by the applicant, and submitted that the experience certificate possessed by the applicant does not fulfill 6 OA No. 1298/2018 Item No.33/C-5 the requisite parameters under the RRs, as the applicant does not have the requisite one year experience in handling and dressing the wounds in Govt. approved Nursing Home. He further referred to the clarification issued by Bansal Hospital on 20.12.2017 (Annexure A-8, page 40), which was sought by the respondents themselves. 5.3 He also placed on record the ESIC (Recruitment) Regulations, 2010 Group 'C' (Para-Medical) Posts, which read as under:
"ESIC (RECRUITMENT) REGULATIONS, 2010 GROUP C (PARA-MEDICAL) POSTS No. A-12(11)1/2008-Med.-IV(RR-PM)-In exercise of powers conferred by Sub-section (1) of Section 97 read with clause (xxi) the Sub-section 2 of the said Section and Sub-section (2) of Section 17 of the Employees' State Insurance Act, 1948 (34 of 1948), and in supersession of all previous notification on this subject, except as respect things done or omitted to be done before such supersession, the Employees' State Insurance Corporation hereby makes, with the approval of the Central Government, the following Recruitment Regulations regulating the method of recruitment to the Group 'C' Nursing Cadre/Posts namely :-
1. Short title and Commencement:-
(1) These Regulations may be called the Employees' State Insurance Corporation (Nursing cadres/Posts), Recruitment Regulations, 2010.
(2) They shall come into force on the date of their publication in the Offical Gazette.
2. Number of post, classification and scale of pay :-
The number of the said post, their classification and scale of pay attached thereto shall be as specified in columns 2 to 4 of the Schedules annexed to these regulations.
3. Method of recruitment, age limit, qualifications and other matters etc :-
The method of recruitment, age limit, qualifications and other matters relating to the said post shall be as specified in column 5 to 13 of the said schedule.7 OA No. 1298/2018
Item No.33/C-5
4. Disqualification-No person:-
(a) Who has entered into or contracted a marriage with a person having a spouse living; or
(b) Who, having a spouse living, has entered into or contracted a marriage with any person; shall be eligible for appointment to the said post.
Provided that the Director General may, if satisfied that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for doing so, exempt any person from the operation of this regulation.
5. Confirmation DPC:-
Confirmation DPC shall be done by the concerned appointing authorities by constituting a Committee of three members including the Chairman of the rank of additional Director/Dy. Medical Superintendent/Medical Superintendent of respective hospitals.
6. Power to relax:
Where the Director General of the corporation is of the opinion that it is necessary or expedient to do so, he may, by order, for reasons to be recorded in writing and after obtaining specific prior approval of the Chairman, Employees' State Insurance Corporation, relax any of the provisions of these regulations with respect to any class or category of persons.
7. Residuary matters:-
Subject to the provisions of these regulations, all Regulations and instructions applicable to the corresponding category of posts in the Corporation shall apply to the posts specified in the Schedule annexed to these Regulations.
8. Savings Nothing in these regulations shall affect reservations, relaxation of age limit and other concessions required to be provided for the Scheduled Castes, the Scheduled Tribes, Ex- servicemen and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard.
Name Number Classi- Pay Band Whether Whether
of the of Posts fication and Grade Selection benefit of
post Pay/Pay post or added
Scale non- years of
selection service
post admissible
under
Rule 30 of
8
OA No. 1298/2018
Item No.33/C-5
CCS
(Pension)
Rules,
1972
1 2 3 4 5 6
1. 831 * Group "C" Pay Band-1, Not Not
Nursing (2008) Non Rs.5200- Applicable Applicable
Orderly *Subject Ministerial 20200, to Grade Pay-
variation Rs.1800
depending
upon
workload
Age limit for Educational and Whether age Period of
direct other qualifications and Probation
recruitment required for Direct educational if any
Recruitment qualifications
prescribed for
direct
recruitment
will apply in
the case of
promotes
7 8 9 10
18-27 years Matriculation or Not Two years
(Relaxable up to equivalent from Applicable
37 Years in case recognized board.
of Government
Servants and Elementary
employees of Knowledge of 1st Aid
ESIC) one year experience
in handling and
Note: The dressing wounds in
crucial date for Govt.
determining the Approved/registered age limit shall Nursing be the closing Home/Hospital.
date for receipt
of application Note 1:
form candidates Qualifications are in India and not relaxable at the the closing date discretion of the prescribed for competent authority those in Assam, in case of candidates Meghalaya, otherwise well Arunachal qualified.
Pradesh,
Nagaland, Note 2: The
Tripura, Sikkim, qualifications(s) Ladakh, regarding experience Division of is/are relaxable at the Jammu and discretion of the 9 OA No. 1298/2018 Item No.33/C-5 Kashmir State, competent authority Lahaul and Spiti in the case of District and candidates belonging Pangi sub- in Scheduled Castes division of and Scheduled Tribes Chamba district if any stage of of Himachal Selection the Pradesh, competent authority Andaman and is of the opinion the Nicobar Island sufficient number of or Lakshadeep) candidates from these communities possessing the requisite experience are not likely to be available to fill up the vacanncies reserved for them.
Method of In case of Recruitment If a Circumstanc Recruitment by Department es in which whether by promotion/deputation/a al Union direct bsorption grade from Promotion Public Recruitment or which promotion Committee Service by promotion or deputation, absorption to exists what Commission by be made is its to be deputation/abso compositio consulted in rption and n making percentage of Recruitment vacancies to be filled up by various methods 11 12 13 14 100% by Direct Not Applicable Not Not Recruitment Applicable Applicable
6. Learned counsel for the respondents also drew our attention to the decision rendered by the Hon'ble Supreme Court in Civil Appeal No(s).344 of 2020 dated 21.01.2020 in the matter of The Karnataka State Seeds Development Corporation Limited & Anr. vs Smt. H.L. Kaveri & Ors. For the sake of better appreciation, the relevant paras of the judgment are reproduced herein below: 10 OA No. 1298/2018
Item No.33/C-5 "12. The Corporation in IA No. 3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally-certificate/graduation certififcate/birth certificate, etc.
13. It remains indisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the 1st respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11th November, 2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment.
14. In the given circumstances, we do not find any error being committed by the Corporation in its decision making process while rejecting the application of the 1st respondent for non-fulfilment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11th November, 2013.
*********
16. The Division Bench of the High Court has relied upon the judgment in Seema Kumar Sharma case(supra) in extending relief to the 1st respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11th November, 2013."
7. He further submitted that the Recruitment Rules are necessarily be complied with and de hors the Rules, no appointment can be offered unless and until an experience certificate is accompanied from the Government approved hospital as per the RRs itself, which are clear, and the Advertisement was also in consonance 11 OA No. 1298/2018 Item No.33/C-5 with the RRs. Having been participated in the selection process, the applicant was fully aware of the experience called for.
8. In rejoinder to the arguments put forth by the learned counsel for the respondents, the learned counsel for the applicant reiterated his arguments and submitted that at the relevant point of time, the State of Haryana was not falling within the ambit of The Clinical Establishments (Registration and Regulation) Act, 2010. He further submitted that the applicant moved an RTI to the respondents asking the details of hospitals from which the selected candidates had given their experience certificates and the districts in which these hospitals were functioning. The respondents vide reply dated 18.03.2019 given the details of 12 hospitals from where the candidates had given certificates. The applicant had moved another RTI seeking information regarding these 12 hospitals as to whether they were registered under the Haryana Clinical Establishment Act. However, vide reply dated 18.04.2019, it was informed that none of the hospitals were recognized under the Haryana Clinical Establishment Act and yet the appointments have been offered. 8.1 He further drew our attention to Annexure A-9 dated 15.12.2003 regarding approval of place for Medical Termination of Pregnancy under MTP Act, 1971, which reads as under:
"In reference to your application on the above noted subject, your place is approved under the MTP Act, 1971 and certificate of approval is attached herewith.12 OA No. 1298/2018
Item No.33/C-5 You are hereby directed to follow the rules and guidelines under the Act and keep the record of all MTP cases in the prescribed Performa.
Your place can be inspected by the undersigned anytime in exercise of the powers conferred under the Act."
9. Learned counsel for the applicant further pointed out that vide order dated 02.04.2018, this Tribunal granted the interim relief in favour of the applicant, which reads as under:
"...Till then one post of the Nursing Orderly shall be kept vacant."
and relied upon the decision rendered by a coordinate Bench of this Tribunal at Chandigarh in O.A. No.060/846/2021 and batch in the matter of Poornima etc. vs Employees State Insurance Corporation and Ors., dated 27.09.2023.
10. Heard the learned counsel for the respective parties at length and have carefully gone through the pleadings/judgments placed on record.
11. Admittedly, the State of Haryana was not falling within the ambit of The Clinical Establishments (Registration and Regulation) Act, 2010 and the said enactment came into effect by way of Ordinance dated 23.01.2018 notified by the State of Haryana. Further, as per RTI reply dated 18.04.2019 regarding 12 hospitals from where the candidates had given certificates based upon which appointments had been offered to them, it has been informed that 13 OA No. 1298/2018 Item No.33/C-5 none of those hospitals were recognized under the Haryana Clinical Establishment Act.
12. We have also gone through the Order dated 27.09.2023 passed by Chandigarh Bench of this Tribunal in O.A. No.060/846/2021 and batch in the matter of Poornima etc. (supra), whereby as many as 83 OAs were allowed by observing as under:
"41. We also cannot ignore the fact that since Clinical Establishment Act was not applicable in the State of Haryana till 2018, no private hospital could be registered under the said Act. Even otherwise, the applicants are working for the last about five years and their work and conduct is stated to be satisfactory. The applicants have also worked during the hardest time of COVID-19 in the year 2020 and 2021 and their contribution towards the cause cannot be ignored.
42. Since the applicants have already surpassed the age of employment in the Government and keeping in view the uncertainty of their future career as well as principles of natural justice and the elaborate judicial pronouncements on the subject, we deem it fit to allow all these Original Applications.
43. Accordingly, all the 83 Original Applications are allowed. The impugned orders therein terminating the services of the applicants are hereby quashed and set aside. The respondents are directed not to terminate the applicants from the post of Nursing Orderly."
13. In the facts and circumstances, we agree with the view taken by the Chandigarh bench of this Tribunal in the case of Poornima (supra) and are of the considered opinion that the O.A. deserves to be allowed.
14. As a result, we allow the O.A. and the impugned order dated 08.03.2018 is quashed and set aside, qua the applicant. The respondents are directed to consider the experience certificate 14 OA No. 1298/2018 Item No.33/C-5 furnished by the applicant for appointment to the post of Nursing Orderly, if he is otherwise found suitable for the said post, with all consequential benefits including fixation of pay, seniority albeit on notional basis with effect from the date his immediate junior in the merit has been given appointment and on actual basis from the date he actually joins the post. The aforesaid directions shall be complied with by the Competent Authority amongst the respondents within a period of two months from the date of receipt of a certified copy of this Order.
15. Pending MAs, if any, also stand disposed of. However, there shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/