Central Administrative Tribunal - Bangalore
Dr C Asha vs Employees State Insurance Corporation ... on 13 July, 2023
1 OA No.43
No.436/2021/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/00436/2021
ORDER RESERVED ON : 30.06.2023
DATE OF ORDER : 13.07.2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Dr. C.Asha,
C.Asha
W/o M.K.Ramamurthy,
M.K.Ramamurthy
Aged about 66 years,
Retired Chief Medical Officer,
Residing at : No.35,
No. "SMRUTHI',
TH
6 "E" Main Road, West of Chord Road,
2nd Stage, 2nd Phase,
Bengaluru
Bengaluru-560086. ...Applicant
(By Advocate, Shri Raghavendra G.Gayatri )
Vs.
1. The Union of India,
By its Secretary,
Department of Labour and Employment,
No.110, Shrama Shankti Bhavan,
Rafi Marg,
New Delhi - 110 001.
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2. Employees' State Insurance Corporation,
Represented by its Director General,
Panchadeep Bhavan,
CIG Marg,
New Delhi -110002.
3. The Medical Commissioner,
Employees' State Insurance Corporation,
Corpor
Panchadeep Bhavan,
CIG Marg,
New Delhi - 110002.
4. The Medical Superintendent,
Employees' State Insurance Corporation,
Model Hospital,
Rajajinagar 2nd Block,
Bangalore -560010.
5. The Deputy Director,
Employees' State Insurance Corporation,
Model Hospital,
Rajajinagar 2nd Block,
Bangalore -560010. ....Respondents
(By Advocate Shri N.Amaresh)
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No.436/2021/CAT/BANGALORE BENCH
ORDER
Per: Justice S.Sujatha ...........Member(J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, Act, 1985 seeking the following reliefs reliefs:
"a. To call for records and to issue a writ of Certiorari quash quashing ing the impugned order dated 05.03.2021 in reference No.A No.A-19/11/22/92-- Med.IV/DPC vide Annexure-A18 Annexure passed by the 4th Respondent and endorsement dated 19.07.2021 in reference No.532/A/24/Doctors.misc.2019.Vol.III. vide Annexure A1 A199 th passed by the 5 Respondent.
b. Direct the respondents to consider the case of Applicant for promotion to the cadre of Chief Medical Officer (Non (Non-Functional Functional Selection Grade) in level-13 level 13 of pay matrix (Grade pay of Rs.8,700/ Rs.8,700/--
in Pay Band-4, Band pre-revised) revised) and above cadre under DACP Scheme with granting due eligibility date with notional benefit from 01.04.2008 and all consequential benefits and consequently refix the pension accordingly.
(c) Pass any other order or direction that the Hon'ble Tribunal deems fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity."
2. Briefly stated the facts as narrated by the applicant are that she entered into service as Lady Medical Officer on 03.02.1979 in the Health and Family Welfare Department, State of Karnataka and was transferred as Assistant Surgeon at K.C.General Hospital, 4 OA No.43 No.436/2021/CAT/BANGALORE BENCH Bangalore. She joined ESI services as Insurance Medical Officer on 08.02.1984. She was sent on deputation to ESI Corporation from 01.04.2003 on account of taking over Hospital by the Central Government. Initially as per the order passed by the 2nd Respondent she was absorbed in the 2nd Respondent Corporation w.e.f. 01.01.2006 and she retired from service on attaining the age of superannuation on 31.10.2014.
3 It is submitted that Government of India, Ministry of Health and Family Welfare issued an official memorandum dated 29.10.2008 for extension of Dynamic Assurance Career Progression Scheme Scheme (DACPS) up to Senior Administrative Grade (SAG) level in respect of Officers of Central Health Services and Dental Doctors under the Ministry of Health and Family Welfare. Based on the said OM dated 29.10.2008 number of officers have been given the bbenefit of promotion without linking the Seniority and availability of post in the respective cadres and hence the Government order dated 29.10.2008 is confined only on the basis of the total service in the particular cadre and there is no necessity to give on specific post. 5 OA No.43
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3. It is submitted that one Dr.R.Narasimha Murthy approached this Tribunal in OA No.995/2014 with a prayer to consider his case for promotion under the DACPS above the level of CMO with all consequential benefits. This Tribunal passed an order on 14.07.2016 allowing the said application. OA No.671/2014 filed by one Dr.Asha also came to be disposed of on 12.08.2016 in terms of the order passed in OA No.995/2014. However, the Respondents approached the Hon'ble High court of Karnataka nataka in W.P.No.38705/2017. The Hon'ble High Court passed an order on 07.09.2017 in the said Writ Petition, remitting the matter to the Respondents for re-consideration.
re consideration. Thereafter, a speaking order was passed by the 2nd Respondent on 01.11.2017 in soo far as Mr.Narasimha Murthy was concerned.
4. It is further submitted that on the basis oof the order passed in OA No.809 to 831/2013,, an order came to be passed on 29.11.2018 absorbing all the deputed employees in ESIC Model Hospital, Rajajinagar, Bengaluru Bengaluru with effect from 01.04.2003. In the meantime Dr.R.Narasimhamurthy approached this Tribunal in OA No.158/2018 challenging the order dated 01.011.2017. During 6 OA No.43 No.436/2021/CAT/BANGALORE BENCH the pendency of the said OA, Respondent No.2 passed an order dated 04.12.2020 implementing the Government order dated 29.11.2018 in respect of absorbed employees by promoting the eligible employees employees working as CMO in level level-12 of pay matrix in Pay Band-3 Band 3 to CMO (NFSG) in level level-13 of pay matrix under DACP Scheme on the recommendations of the Departmental Promotion Committee. In the said order all the employees who were working in the Rajajinagar Rajajinagar Hospital were considered for promotion with effect from 2018. The applicant had retired from service on attaining the age of superannuation on 331.10.2014. Thus, she was not considered for promotion under DACP Scheme albeit she was in service as on 01.04.2008.
01.04.2008. Thereafter, the representations submitted by the applicant seeking benefits under DACP Scheme has not yielded any result. Hence, applicant has approached this Tribunal.
5. Learned Counsel Mr.Raghavendra G Gayatri representing the applicant submitted that under the DACP Scheme, the promotion is to be granted on the basis of length of service without relating to the seniority and post. As such it is not relating to All 7 OA No.43 No.436/2021/CAT/BANGALORE BENCH India seniority nor institutional seniority. The respondents have given the benefit to all the employees, employees who are continuing to hold the post but the same is not extended to the retired employees. The same is nothing but discrimination and violative of Article 14 of the Constitution. Placing reliance on the order passed in OA No.158/2018 dated 05.02.2021 in the case of Dr.R.Narasimha Murthy, learned Counsel submitted that the applicant has to be extended with similar benefit. Learned Counsel has placed reliance on the following judgments:
1. 2021 SCC Online Kar 7907 - Employees State Insurance Corporation rporation and another vs. Dr.Vin Dr.Vinay Kumar and Others.
2. 2021 SCC Online CAT 15130 - Dr.Lutika Nepram Lyngdoh vs. Union of India and others others.
3. (2020) SCC Online Pat 4399 - Dr.Ranjit Das vs. Union of India and others.
4. 2016 SCC Online CAT 5080 - Prashant vs. Union of India and others.
5. 2016 SCC Online HP 1088 - Union of India & Others vs. Meenu Aggarwal.
6. 2007 SCC Online Gau 625 - Dr.Geeta Das vs. Union of India and others.8 OA No.43
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6. Per contra, learned Counsel Shri N.Amaresh re representing the respondents argued that the terms and conditions of the absorption which was accepted by the applicant before exercising her option for being absorbed into ESI Corporation contemplates that before absorption in the corporation, an employee will be free to opt for separate institutional seniority i.e., seniority only for a particular hospital. In the alternative, alternative an option was left to the individuals to opt for part of All India seniority, in which case they will be liable for All India transfer nsfer and India promotional avenues.
The respondents, ESI Corporation in order to grant equal opportunity of promotion in the level of NFSG and SAG to all the absorbed Medical Officers, ESI Corporation, in its 174th meeting approved the placement of officials.
officials. Accordingly, the absorbed Medical Officers who were in service as on 01.06.2018 were now placed in All India Seniority level and promoted as per order of ESI Corporation dated 04.12.2020. Reliance was placed on the order passed by this Tribunal in OA No.173/2022 dated 09.06.2023. Accordingly, seeks for dismissal of the OA. 9 OA No.43
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7. We have carefully considered the rival submissions of the learned Counsel for both the parties and perused the material on record.
8. The issue involved herein, is no more res integra in view of the order passed by this Tribunal in OA No. 173/2022 dated 09.06.2023 (Dr.M.Srinivasaiah and others vs. Union of India and others). This Tribunal considered the identical issue involved herein and has held thus:
"7. Thee genesis for grant of promotions to the Medical Officers of the ESIC to the level of CMO (NFSG) was the decision taken by the ESIC in its 174th meeting held on 29.5.2018. A perusal of the minutes of this decision indicates the following points:
a) The ESIC SIC had taken over number of ESI Scheme Hospitals from different State Government on 'as is where is' basis. The State Government doctors working therein, at the time of takeover, were absorbed in ESIC. These absorbed employees which included the present applicants pplicants were given one time opportunity to opt for Institutional/State or All India Seniority in terms of clause 4 of the standard terms of absorption approved by the ESI Corporation in its 142nd meeting held on 22.2.2008.
The actual orders of absorption of these Doctors in ESIC were issued on 11.2.2010 vide office order 37 of 2010 (Annexure A2).
b) Those absorbed Medical Officers, who opted for Institutional/State seniority, were to be kept posted in hospital only as per their eligibility for promotions upto the level of CMO (Grade Pay 7600 as per 6th CPC). On the other side, those absorbed Medical Officers, who opted for All India Seniority, were liable to be transferred on all India basis but were eligible for promotional posts beyond the level of CMO (i.e. to the 10 OA No.43 No.436/2021/CAT/BANGALORE BENCH grades of NFSG & SAG) against promotional vacancies across the country.
c) There were 184 Medical Officers, who opted for Institutional/State Seniority across all taken taken-over hospitals.
Many of these Medical Officers requested for grant of opportunity portunity to change their option as they lost considerable promotional avenues post implementation of DACP w.e.f. 1/3/2008.
d) ESIC in its meeting held on 29.05.2018, decided to do away with the Institutional/State seniority and decided that each & every absorbed Medical Officer will be placed under All India seniority in order to have equal opportunity of being promoted to the scales of NFSG & SAG. It was further decided that, if any representations are received from any of the absorbed MOs to still placee them in institutional/State seniority, the Corporation shall have no objection for their repatriation to their parent organization, if the respective State Government permits so. The employees remaining in the corporation shall be liable for All India Transfer.
e) All these absorbed employees were placed in All India Seniority w.e.f. 1.6.2018. They were granted financial benefits of DACP from 1.6.2018. However, they were also granted notional benefits of DACP from the date of their eligibility.
8. As can can be seen from the minutes of the meeting, and as per the terms of the absorption of the Medical Officers, they were entitled for promotion only up to the level of CMO, if they elected to opt for Institutional/State seniority. They were eligible for promo promotion beyond the level of CMO i.e. NFSG & SAG only if they opted for All India seniority. This was as per the terms and conditions of absorption offered to them at the time of their absorption under ESIC.
9. This absorption had taken place on 11.2.2010. T The DACP scheme which provided for upgradation upto the level of SAG, had been notified on 29.10.2008. Hence, it is apparent that the applicants were fully aware of the DACP scheme as well as the fact that they would not be eligible for upgradation beyond C CMO if they opt for Institutional Seniority at the time of their absorption.
10. The DACP scheme envisages promotion without linkage to vacancies. However, the OM dated 29.10.2008 also states that the other conditions for effecting promotions will be gove governed by the respective Recruitment Rules, as amended from time to time and 11 OA No.43 No.436/2021/CAT/BANGALORE BENCH Department of Personnel & Training instructions in this regard. It is therefore obvious that grant of DACP is subject to fulfilment of various other service conditions governing propromotions. One of the conditions specified in the ESIC was that the absorbed employees had to opt for All India transfer liability if they were willing to be considered for promotion beyond the level of CMO.
11. There were, therefore, two separate class of absorbed employees created in ESIC, under its terms of absorption. The absorbed employees opting for Institutional seniority, were a separate class, since they had no liability for All India transfer, and th they continued to work in the Institution where they were absorbed at that point of time. However, their promotional avenues were restricted up to the level of CMO alone. The 2nd class of employees were those who opted for All India seniority and All India transfer transfer liability with the understanding that, along with this liability, they would also be eligible for consideration for promotion beyond CMO, to the grade of CMO (NFSG) and SAG.
12. Subsequent to the decision taken in the 174th meeting on 29.5.2018, the ESIC decided to do away this distinction and placed all the absorbed Medical Officers in All India seniority in order to grant every absorbed employee equal opportunity of being promoted to the grade of CMO (NFSG) and SAG, under the DACP scheme. It was also decided that in case any of the Medical Officers still wants to be placed under Institutional/State Seniority, they may be allowed to repatriate to their parent organisation if the respective State Government permits so. In other words, all medical D Doctors in ESIC, including the absorbed employees, were placed under All India seniority with equal opportunity of promotion to the scales of CMO (NFSG) and SAG under DACP with effect from 1.6.2018. It is consequent to this decision taken by the ESIC that tthe applicants have been promoted to CMO (NFSG) under the DACP scheme vide impugned order dated 04.12.2020 (Annexure A A-11 & A-12).
13. Since the distinction between these two classes of employees was abolished w.e.f. 1.6.2018, hence, the actual monetary bbenefits under DACP were also granted to those employees who had earlier opted to remain in Institutional Seniority, from that date only. All other benefits were granted notionally from the date of grant of notional promotion under DACP to the employees who were under institutional seniority and had not been granted the upgradation beyond CMO grade.
14. The applicants had opted for institutional seniority with the knowledge that without accepting All India Transfer liability, they 12 OA No.43 No.436/2021/CAT/BANGALORE BENCH shall not be eligible for promotion beyond the level of CMO. They become eligible for financial benefits of upgradation beyond the CMO level, only after they were included under the All India Seniority with All India transfer liability. They, therefore became eligible for the actual financial benefits with effect from the date on which they were actual shifted to All India Seniority with All India transfer liability. It would be discriminatory on the part of ESIC to retrospectively do away with this distinction and grant the benefit to th those employees as well who had consciously opted only for Institutional Seniority and opted to forego the benefits of financial upgradation beyond CMO grade in order to avoid All India transfer liability along with such other employees who had opted for All India Seniority along with All India transfer liability and were consequently eligible for opportunity of promotion beyond the level of CMO.
15. The prayer of the applicants to grant them actual financial benefits from retrospective effect and not from tthe date when they were incorporated in the All India Seniority list with All India transfer liability cannot be countenanced. The distinction made between these two classes of employees is justified and cannot be considered as arbitrary under any circumstances, circumstances, since the applicants had themselves made a conscious choice voluntarily at the time of absorption in ESIC. ESIC has now decided to remove this distinction w.e.f. 1.6.2018. It therefore, further decided to grant notional benefits prior to 1.6.2018 under DACP, and full financial benefits subsequent to that date under (1.6.2018) to these applicants who were included under All India Seniority list with All India transfer liability with effect from that date."
9. We have perused the judgments/citations relied upon by the learned Counsel for the applicant. Division Bench of the Hon'ble High Court of Karnataka in Dr.Vinay Kumar supra, has observed that promotions under DACP Scheme are made by the Ministry without linkage to the vacancies vacancies. The Hon'ble High Court ourt dismissed the Writ Petition observing that if there are no promotional candidate available in the department, it has to be 13 OA No.43 No.436/2021/CAT/BANGALORE BENCH treated as vacant post and as it was reserved for Scheduled Caste category, it has to be filled up only to a person belonging tto Scheduled Caste.
10. In the case of Dr.Lutika Nepram Lyngdoh supra, CAT, Principal Bench held that the applicant would be entitled for the benefit of Time Bound Promotion under DACP Scheme as no benefit was extended for the reason that the approval of the Ministry of Health & Family Welfare was required, the appointing authority being the President of the governing body, i.e., Union Minister for Health & Family Welfare.
11. In Dr.Ranjit Das supra, the Division Bench of the Hon'ble High Court Karnataka held that no justification is found for discrimination and it is arbitrary, unreasonable and department is treating equals differently without any reasonable basis. It was in the he context that the Petitioner therein had denied promotion in SAG although found fit for promotion by DPC in its meeting conveyed on 09.11.2012 and approved on 17.12.2012 by the competent authority on the ground that in cases where employees were 14 OA No.43 No.436/2021/CAT/BANGALORE BENCH declaredd unfit for promotion in previous DPC, they will be granted promotion from the date of approval by competent authority and since petitioner had already retired, he was not granted promotion whereas cases of employees for promotion in SAG was considered for or the first time were promoted from due date although they had also retired much prior to 09.11.2012 and 17.12.2012.
12. In Prashant supra, the CAT, Mumbai Bench allowed the OA holding that applicant therein is entitled for counting the service rendered by him as Medical Officer in SSB Cabinet Secretariat from 18.11.1997 to 30.04.2007. The respondents were directed to reckon the service rendered as Medical Officer in SSB Cabinet Secretariat for time bound financial upgradation under DACP Scheme and extend extend the financial benefit within a period of three months from the date of receipt of a copy of the order.
13. In Meenu Aggarwal supra, the Hon'ble High Court of Himachal Pradesh Shimla confirmed the order passed by CAT, Chandigarh Bench in OA No.778/HP/ 778/HP/2005 dated 30.05.2008, whereby The Tribunal allowed the OA and declared that the 15 OA No.43 No.436/2021/CAT/BANGALORE BENCH applicant therein is entitled to same benefit benefits of time bound promotion at par with any other CHS Medical Officers on that date. Dr.R.Narasimha Murthy's case, supra is also no not applicable to the facts of the present case.
14. The aforesaid judgments would not lend any assistance to the applicant. Moreover, applicability of DACP Scheme to the retired employees has not been discussed in the said judgments. There is no cavil on on the settled legal proposition of law. But the moot question herein whether the DACP Scheme would be applicable to the retired persons on attaining the age of superannuation, i.e., giving effect retrospectively has not been dealt superannuation, with. In our considered considere view, the applicant who had opted for institutional seniority at the time of absorption shall not be eligible for promotion beyond the level of CMO. Having regard to the conscious option exercised by the employees for institutional seniority, this Tribunal Tribunal in OA No.173/2022 supra, has observed that itt would be discriminatory on the part of ESIC to retrospectively do away with this distinction and grant the benefit to those employees as well who had consciously opted only for Institutional Seniority 16 OA No.43 No.436/2021/CAT/BANGALORE BENCH and further opted to forego the benefits of financial upgradation beyond CMO grade.
grade
15. It is significant to note that while while issuing the office order dated 11.02.2010, it was clearly stated thus:
thus:-
"the absorbee has opted for institutional seniority. Therefore, the doctor opting for institutional seniority will only be eligible for the promotion upto the post of CMO Grade i.e., present ESIC scale of Rs.12000/ Rs.12000/- --16500/- and will not be liable to be transferred outside the Hospital."
No right for promotion promotion has been created in favour of the applicant for promotion beyond the cadre of CMO (NFSG) pursuant to the subsequent option for All India seniority vide Annexure A5, not being accepted by the respondents. Indeed, it is misinterpretation of the letter at Annexure R4, which contained an additional line -
"Further please inform if any of the absorbed Medical Officers has opted for the All India seniority".
16. It is not in dispute that the applicant attained the age of superannuation well before the implementation implementation of the revised absorption policy of medical officers. The absorbed medical 17 OA No.43 No.436/2021/CAT/BANGALORE BENCH officers who were in service as on 01.06.2018 were now placed in All India Seniority level and promoted as per order of ESI Corporation dated 04.12.2020. The medical officers were granted notional benefits to the scale of NFSG from the dates they were eligible for promotion and the promoted medical officers were granted financial benefits of DACP only with effect from 01.06.2018 and placed in All India seniority level level. This aspect being considered in extenso, OA No.173/2022 has been dismissed confirming the decision of ESIC dated 04.12.2020. The same analogy squarely applies to the present case.
17. For the reasons aforesaid, the OA is dismissed. No order as to costs.
ts.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
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