Central Administrative Tribunal - Bangalore
Dr Bheemaraya D vs Employees State Insurance Corporation ... on 14 August, 2024
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OA.No.170/00464/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00464/2022
ORDER RESERVED ON 22.07.2024
DATE OF ORDER: 14.08.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
Dr. Bheemaraya D.
Age: 38 years,
S/o Hanumanthappa Devaramani,
Working as Chief Medical Officer (CMO)
At ESIC Model Hospital- PGIMSR
Rajajinagar, Bangalore-560 010 .... Applicant
(By Ms. Akkamahadevi Hiremath, Advocate - through video
conference)
Vs.
1. Union of India,
Ministry of Labour & Employment,
Government of India, Shakti Bhavan,
New Delhi-110 011,
Represented by its Secretary.
2. Employees State Insurance Corporation,
Hqrs. Office, Panchadeep Bhavan,
C. I.G Marg, New Delhi- 110002,
Represented by its Director General.
3. The Employees State Insurance Corporation Model Hospital &
PGIMSR, Rajajinagar
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OA.No.170/00464/2022/CAT/BANGALORE
Rajajinagar, Bangalore-560 010.
Represented by its Dean.
4. The Employees State Insurance Corporation Model Hospital &
PGIMSR, Rajajinagar
Rajajinagar, Bangalore-560 010.
Represented by its Deputy Director (Admn).
5. Employees State Insurance Corporation,
Hqrs. Office, Panchadeep Bhavan,
C.I.G Marg, New Delhi- 110002,
Represented by its Deputy Director (Med Admin).
6. The Employees State Insurance Corporation Hospital,
Rudrapur-263153, Uttarakhand State,
Represented by its
Medical Superintendent. ...Respondents
(By Shri N. Amaresh, Senior Panel Counsel)
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"i) Quash the Order No 532/T/11/12/O.A 253/2020, dated 08-08-2022 (Ann-A1) passed by the Respondent No. 3-Dean, and
ii) To direct the 2nd and 3rd Respondent to re-designate the Applicant as "Senior Resident" in the Department of General Medicine of 3rd Respondent College, with effect from the date of his representation dated 22-09-2018 (Ann-A10).
iii) Consequentially to set aside the transfer Order dated 07-
10-2021 (Ann-A2) passed by Respondent No.2 and the 3 OA.No.170/00464/2022/CAT/BANGALORE Relieving Order dated 08-10-2021 (Ann-A3), passed by Respondent No.3 and
iv) To direct the 2nd and 3rd Respondents to grant consequential promotion/ redesignation to the Applicant as Asst Professor in the Department of General Medicine in the 3rd Respondent College, from the date he became eligible i.e. 22-09-2019; and
v) To hold and declare that the Applicant has been working in the available vacant position of GDMO/Sr Resident, since the Applicant is legally entitled to join the vacant posts in Department of General Medicine in 3rd Respondent college, and direct payment of salary to him from 08-10-2021.
vi) Grant any such relief, as deemed fit in the facts and circumstances of the case, and in the interest of justice."
2. This case has a chequered history.
3. Succinctly stated the facts as narrated by the applicant are that he joined the 3rd Respondent Hospital as Insurance Medical Officer - Grade-II (IMO-Grade II) General Duty Medical Officer (GDMO) cadre on 09.07.2009 after completion of his MBBS Degree. The applicant completed his probation on 08.07.2011. After completion of four years of service, he was promoted as IMO-Grade I. In 2013, the applicant was designated/appointed as Senior Resident (Sr. Resident) in Pulmonary Medicine on 07.06.2013 and has been shown as teaching faculty to the Medical Council of India since then. The applicant having secured PG seat 4 OA.No.170/00464/2022/CAT/BANGALORE under In-service quota in MD General Medicine, joined the PG course in Jaya Jagadguru Murugharajendra Medical College at Davanagere for the academic year 2014-15 after availing Study Leave. The applicant reported to duty at the hospital from 02.04.2018 after completion of the PG course and has been working as IMO-Gr-I in the Department of Medicine. Further, the applicant took leave from 03.04.2018 to 10.06.2018 till completion of his examination.
4. The 2nd Respondent issued the office order dated 23.07.2018, transferring the applicant to the ESIC hospital at Varanasi in Uttar Pradesh State which was challenged by the applicant in OA No. 1365/2018, wherein an interim order of stay of the said transfer order has been granted on 16.08.2018. It transpires that during the pendency of the said OA No. 1365/2018, the 2nd Respondent-Corporation issued the rationalization order dated 21.01.2019, rationalizing the number of doctors in ESIC hospital associated with medical colleges. Accordingly, the applicant was directed to submit options for posting. Considering the same, OA No. 1365/2018 has been disposed of, having become infructuous, reserving liberty to the applicant to challenge the subsequent Rationalization order vide order dated 04.06.2019. 5
OA.No.170/00464/2022/CAT/BANGALORE
5. The applicant challenged the rationalization order dated 21.01.2019 before this Tribunal in OA No. 583/2019. The said OA came to be dismissed vide order dated 24.01.2020. By that time, the applicant had submitted the representation dated 22.09.2018 to the 2nd Respondent through proper channel seeking for re-designation having acquired PG Degree in General Medicine, eligible to become Sr. Resident in the Department of Medicine but in vain. However, the recruitment notification dated 09.05.2020 was issued by the 3rd Respondent for the post of Sr. Resident in the General Medicine Department, the same was challenged by the applicant in OA No. 253/2020 before this Tribunal inter alia seeking a direction to the respondents to re-designate him as Sr. Resident. An interim order was granted by this Tribunal in the said OA directing the Respondents No. 2 and 3 to keep one post of Sr. Resident in General Medicine vacant till the next date of hearing and no further proceedings shall be undertaken to fill the post by walk-in interview which was scheduled to be held on 22.05.2020. The applicant was promoted from IMO Gr I to Chief Medical Officer (CMO) vide office order dated 13.09.2021. At this juncture, the 2nd Respondent issued a transfer order dated 07.10.2021 transferring the applicant 6 OA.No.170/00464/2022/CAT/BANGALORE to the 6th Respondent Hospital at Rudrapur, Uttarakhand and relieved him vide order dated 08.10.2021. The applicant challenged the said transfer order in OA No. 498/2021.
6. This Tribunal passed a common order in OA No. 253/2020 and OA No. 498/2021 on 21.04.2022, directing the 3rd Respondent and other respondents to consider the representations dated 22.09.2018 and 22.11.2019. Pursuant to the liberty reserved to the applicant to submit a detailed supplementary representation, the applicant submitted the representation seeking for re- designation. After receipt of the report of the Committee constituted to consider the representations, the 3rd Respondent passed the impugned order dated 08/27.08.2022, rejecting the claim of the applicant for posting as designated Senior Resident at ESIC MC PGIMSR, Rajajinagar and directing him to join at his ordered place of posting with immediate effect. Being aggrieved, the applicant has preferred this OA.
7. Learned counsel Ms. Akkamahadevi Hiremath representing the applicant submitted that the applicant has been chosen for transfer only to circumvent his claim for Sr. Resident 7 OA.No.170/00464/2022/CAT/BANGALORE and further designation. Several similarly placed GDMOs with PG qualification were designated as Sr. Residents at ESIC Medical College, Joka West Bengal. Similarly, Dr. S. Ravi Kumar, IMO Gr.I and Dr. Chetan B L were designated on 16.07.2020 and 20.06.2022 respectively as Senior Residents. Again Dr. Shruti Das Shetty who is similarly placed as the applicant was designated as "Senior Resident" in the Department of Ophthalmology on 03.10.2022. However, the applicant was singled out. This discrimination being apparent on the face of the record, the applicant deserves consideration on par with similarly situated persons who were designated to the post of Senior Resident.
8. Learned counsel further submitted that the applicant had already been designated to the post of Sr. Resident on 07.06.2013 which has been accepted by the MCI, he is legally entitled to be continued to the post of Senior Resident from the said date. Referring to para 8 of the rationalization order dated 21.01.2019, learned counsel submitted that the action of the respondents in resorting to making the exercise of direct recruitment albeit without much success, for the purpose of filling up of Senior Resident in General Medicine amounts to colourable exercise of power. The 8 OA.No.170/00464/2022/CAT/BANGALORE applicant was legally entitled to be designated to the post of Sr. Resident but the rejection of the same amounts to violation of the office memorandum dated 25.10.2019 issued by the 2nd Respondent which notifies about the policy for optimum utilization of PG Qualification among its existing cadres and to consider them as Senior Resident, wherein the guidelines stated that the ESIC hospital having 200 beds or more, the PG qualified GDMOs after their placement in the concerned specialties will reduce the equal number Senior Residents, who are engaged for 3 years under Residency Scheme against 40% quota for GDMO, based on which the 3rd Respondent has to designate the applicant as a Senior Resident.
9. Learned counsel for the applicant has placed reliance on the following judgments: -
1) Dr. Kumar H.C. vs Union of India & Ors in O.A No. 603/2021, DD: 01.06.2022 (CAT, Bangalore Bench).
2) Dr. Kumar H. C. vs. Union of India & Ors. in Writ Petition No. 15794/2022, DD: 21.06.2023 (Hon'ble High Court of Karnataka).9
OA.No.170/00464/2022/CAT/BANGALORE
3) State of Jharkhand & Ors. vs. Brahmputra Metallics Limited, Ranchi reported in (2023) 10 SCC 634 (Hon'ble Supreme Court)
4) Dr. Thejaswini S.P. vs. Union of India & Ors. in OA No. 217/2019, DD: 24.01.2020 (CAT, Bangalore Bench).
5) Dr. Ashwini M.S & Anr. Vs. the State of Karnataka & Ors. in Writ Petition No. 51611/2019 connected with Writ Petition No. 5491/2021, DD: 05.09.2023 (Hon'ble High Court of Karnataka)
6) Dr. Chandrashekar E. vs Union of India & Ors. in OA No. 495/2021, DD: 10.04.2023 (CAT, Bangalore Bench).
7) Dr. Thejaswini S.P. vs Union of India & Ors. in OA No. 496/2021, DD: 24.02.2023 (CAT, Bangalore Bench).
8) Dr. Malini J vs Union of India & Ors. in OA No. 282/2022, DD: 31.03.2023 (CAT, Bangalore Bench).
9) The Employees State Insurance Corporation & Ors. vs. Dr. J.C. Panchasheelan in Writ Petition No. 16384/2016, DD: 31.01.2017 (Hon'ble High Court of Karnataka) 10 OA.No.170/00464/2022/CAT/BANGALORE
10) Faculty Association, Maulana Azad Medical College and Associated Hospital vs. Union of India in WP (C) No. 7049/2005, DD: 09.11.2016 (Hon'ble High Court of Delhi).
10. Learned counsel Shri N. Amaresh representing the respondents referring to the detailed reply statement filed on behalf of the respondents submitted that teaching cadre in medical colleges is governed as per MCI norms. There is no requirement of Senior Resident as teaching faculty in terms of MCI norms. The Doctors who have been granted study leave for three years are bound to serve the organization for five years as per administrative requirement. The applicant was accorded permission for study leave as an in-service candidate from his parent cadre i.e., as Insurance Medical Officer Grade-II, not as "Designated Senior Resident". Referring to Clause (6) of the study leave order dated 16.03.2015, learned counsel submitted that the same stipulates a condition that ESIC can transfer the applicant to any of the ESIC institution across India in order to utilize his specialization after completion of PG degree. The applicant has accepted the offer of appointment which clearly stipulates the fact that ESIC is an organization having all India service liability. The OAs challenging 11 OA.No.170/00464/2022/CAT/BANGALORE the rationalization exercise carried out by the ESIC were dismissed by this Tribunal.
11. Learned counsel further argued that the applicant is not entitled for the re-designation as "Senior Resident" since he is trying to make a lateral entry as a teaching faculty in the medical college run by the respondents which is not supported by the service rules. Any interim order granted in OA No. 253/2020 will not give any immunity to the applicant to stop his all-India transfer liability and permit him to continue to serve in present place of posting. Transfer of the applicant to newly opened hospital at Rudrapur was very much required to provide better facility in its nascent phase. Thus, justifying the earlier transfer order to Varanasi and the present impugned transfer order to Rudrapur, learned counsel submitted that transfer is not only an incidence inherent in terms of appointment but also implicit as an essential condition of service.
12. After the receipt of the orders of this Tribunal in OA No. 498/2021, the applicant has made a representation to the respondents to change the committee. Accepting the request of the applicant seeking permission from this Tribunal by filing MA No. 12 OA.No.170/00464/2022/CAT/BANGALORE 218/2022, a common order passed in OA No. 253/2020 and OA No. 498/2021 has been implemented. Learned counsel further submitted that since the applicant is appointed in the cadre of GDMO, his promotional avenues are not against the vacancies of Senior Residents.
13. Denying the allegation of discrimination alleged, learned counsel submitted that teaching faculty is completely a different cadre governed by the separate set of recruitment rules for the purpose of appointment and promotion. Many doctors seek their designation as teaching faculty to make their curriculum vitae impressive. One of the conditions of re-designation is that such assignments are in addition of their normal duties and they will continue to be covered by the rules and regulations of his/her initial recruitment. Further they will continue to draw the existing pay scales and allowances and no additional remuneration is payable to them on account of such assignments. Mere designation of any employee as teaching faculty does not mean that his parent cadre is permanently changed/converted to regular teaching cadre and in fact he will continue to be governed by the rules related to the cadre to which he/she permanently belongs. The applicant having been 13 OA.No.170/00464/2022/CAT/BANGALORE appointed on permanent basis as GDMO which is different from regular teaching faculty cadre, his claim for designation/re- designation as teaching faculty cannot be considered. Accordingly, supporting the impugned orders, learned counsel seeks for dismissal of the OA.
14. In support of his contentions, learned counsel has placed reliance on the following orders of this Tribunal:
1) OA No. 185/2022 decided on 19.04.2023 (Dr. Thejaswini S.P. Vs. ESIC) CAT Bangalore Bench.
2) OA No. 245/2020 decided on 31.03.2023 (Dr. Malini. J.
Vs. ESIC) CAT Bangalore Bench.
15. We have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record.
16. At the outset, it is apt to refer the judgments cited, by the learned counsel for the parties.
17. In Dr. Kumar H.C., supra, this Tribunal has adjudicated on the validity of the transfer order from ESIC, Rajajinagar, 14 OA.No.170/00464/2022/CAT/BANGALORE Bangalore to ESICH, Rudrapur, primarily challenge made on the ground that at the time of absorption of the applicant therein in ESIC he had opted for institutional seniority, hence, the applicant therein could not have been transferred to Rudrapur since he does not have all India transfer liability. It was held that there is apparently no violation of any statutory rule particularly after the placement of the applicant under all India transfer liability subsequent to his elevation to NFSG Grade in Level-13 of the pay matrix and accordingly, OA was dismissed. The said order was challenged in Writ Petition No. 15794/2022. The said Writ Petition was disposed of reserving liberty to the petitioner therein - Dr. Kumar H.C. to give a representation to consider for posting in terms of the transfer policy dated 20.06.2022 in the applicable zone and if such representation is made, the 2nd respondent viz., ESIC shall consider the same within two weeks of receipt of such representation. In the interregnum, until the representation of the petitioner is considered, the Hon'ble High Court directed the posting of the petitioner be restored to the same place of posting before he was transferred i.e., at ESIC, PGIMSR, Rajajinagar. The challenge made to the said order by the ESIC before the Hon'ble 15 OA.No.170/00464/2022/CAT/BANGALORE Apex Court has been dismissed in Special Leave to Appeal (C) No. 159/2024 (DD: 03.01.2024).
18. In Brahmaputra Metallics Limited, Ranchi, supra, the Hon'ble Apex Court summarised the legal principles relating to relationship between Article 14 and the doctrine of legitimate expectation. In this context, it has been held thus:
"As regards the relationship between Article 14 and the doctrine of legitimate expectation, it has been said that in contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision- making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review. (Para 46) .......The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may 16 OA.No.170/00464/2022/CAT/BANGALORE render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent. (Para 46) Food Corpn. Of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71, followed ...........State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law." (Para 47)
19. In Dr. Thejaswini S P (OA No. 217/2019), supra, this Tribunal dismissed the OA with an observation that all the applicants who are beyond the level of CMO are liable to all India 17 OA.No.170/00464/2022/CAT/BANGALORE transfer provided they have received the benefits stipulated under it and not still covered by the pre-absorption state and below the rank of CMO.
20. In Dr. Ashwini M.S., supra, the Hon'ble High Court of Karnataka considering the Cadre & Recruitment Rules of Shimoga Institute of Medical Sciences, which contemplates the first mode of recruitment to the post of Assistant Professor by re-designating the persons available in the cadre of Senior Residents held that if the Institution prescribes the mode of recruitment as re-designation, the same will have to be accepted since it is clear that by this process, the Institution seeks to provide an incentive to the existing employees and gives them a mode of reaching a higher post while yet staying within the Institution.
21. This Tribunal in Dr. Chandrashekar E., supra, setting aside the transfer order and the relieving order qua the applicant, directed the respondents to reconsider the transfer of the applicant therein under the new transfer policy which has been notified on 20.06.2022 and to issue a reasonable and speaking order keeping the new policy in view.
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22. In Dr. Thejaswini S.P. (OA No. 496/2021), supra, this Tribunal has extensively analysed the transfer policy issued by the respondents dated 10.08.2018 which was in force at the time of issuance of the impugned transfer order therein vis-a-vis the revised transfer policy dated 20.06.2022. Setting aside the transfer order impugned therein qua the applicant therein, directed the respondents to reconsider the transfer of the applicant therein under the new transfer policy which has been notified on 20.06.2022.
23. In Dr. Malini J (OA No. 282/2022), supra, this Tribunal considering the transfer policy of 2018 in the background of the claim made by the applicant therein to consider her re-designation from the post of Assistant Professor to Associate Professor, held that as per the appointment letter issued to the applicant (therein), the applicant belongs to the Specialist (non-teaching cadre) in ESIC and hence cannot claim any right to be holding the post of Assistant Professor or Associate Professor, which is a part of teaching cadre faculty in ESIC. It has been observed that the applicant has been categorically allowed to take up teaching as an additional duty and she was required to continue to perform the existing duties of Specialist assigned to her from the office order issued. In addition 19 OA.No.170/00464/2022/CAT/BANGALORE to her duties as a Specialist, the applicant is required to perform the duties of a teaching faculty as Assistant Professor. Such designation was applicable only at the current place of posting and the same will stand withdrawn on transfer to any other ESI Hospital. Accordingly, it has been held that the applicant cannot claim as a matter of right that she should continue to perform additional duties as a part time teaching faculty, however, having regard to the revised transfer policy, setting aside the transfer order impugned therein, directed the respondents to reconsider the transfer of the applicant therein under the new transfer policy which has been notified on 20.06.2022 and to issue a reasoned and speaking order keeping the new policy in view.
24. In Dr. Thejaswini SP (OA No. 185/2022), supra, considering the rationalization order dated 13.05.2020 and the judgment of Hon'ble High Court of Karnataka in Dr. J.C. Panchasheelan, supra, this Tribunal has categorically held thus:
"5. In the present case, the applicant has challenged the Walk- in-Interview Notification dated 12.04.2022 vide which one post of Senior Resident, in the Department of OBG, in the ESIC Hospital at Peenya, is proposed to be filled up on contractual basis for a period of three years. The applicant is claiming that she is entitled to the post of Senior Resident and she should be appointed as such instead of filling up the post on contractual basis for a period of 3 years. She is relying upon the 20 OA.No.170/00464/2022/CAT/BANGALORE rationalisation orders issued by the Respondents dated
25.10.2019 and 21.01.2019.
6. It is an admitted fact that the applicant is currently working in the cadre of IMO/GDMO and has been promoted to the post of CMO vide orders dated 13.09.2021 after completion of 9 years of regular service in ESI Corporation.
7. A perusal of the recruitment rules pertaining to ESIC reveal that there is no permanent teaching post of Senior Resident in the ESIC. These Senior Residents are employees covered under the Temporary Service Rules. As clarified by ESIC, one Senior Resident is provided for every 10 beds on three yearly contract basis. Similarly, some of the shortfall in the Recruitment of GDMOs is also met by recruiting Senior Residents for three years under the residency scheme. In some other cases, Senior Residents can also be engaged on contract basis for one year or till joining of regular GDMO.
8. A perusal of the "Minimum Qualifications for Teachers in Medical Institutions (Amendment) Regulations, 2019 issued by the MCI dated 12.02.2020 reveal that a Senior Resident is one who is doing his/her residency in the concerned post graduate subject after obtaining PG degree (MD/MS/DNB/Diploma) and is below 45 years of age.
9. From these regulations and rules it is apparent that there is no permanent post of Senior Resident in ESIC. The post of Senior Resident is generally offered to candidates who have done his/her post-graduation in the required subject and is willing to work on contract basis for a period upto three years in the hospital in the concerned speciality. In order to ensure optimum utilization of those IMOs who have suitable PG Qualification, ESIC, as a matter of policy, tries to post them in their concerned speciality in the hospital. However, they are a separate cadre of permanent employees of ESIC and cannot lay any claim to the temporary post of Senior Resident.
10. The applicant is working as CMO grade I in level-12 whereas, as per the Walk-in-Interview advertisement dated 12.04.2022 the emoluments to be provided to the Senior Residents who would be on contract appointment for a period of three years would be in level-11.
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11. The applicant, in her pleadings, has stated that the respondents have approved designating several IMOs as Asst. Professors, and Senior Residents. She has enclosed Memorandum dated 23.09.2009 (Annexure A11) in support of her claim. A perusal of the Memorandum date 23.09.2011 (Annexure A-11) indicates that, vide these orders, some of the Specialists in ESIC have been designated as "Specialist-cum- Assistant professors" in the proposed ESI PGIMSR for the purpose of fulfilling the conditions of MCI. No specific order of any IMO/CMO being designated as "Senior Resident" has been enclosed by the applicant.
12. The MCI Regulations governing designation of some Specialists and Consultants as Assistant Professors/Professor were notified under The PGME Regulations, 2000 as amended by Post-Graduate Medical Education (Amendment) Regulations, 2005 with effect from 16th March, 2005. Under this, clause (d) to Regulation 11.1 was added by way of amendment. The Clause (d) to Regulation 11.1 reads as under:-
"(d) Consultants or specialists who have the experience of working for a period of not less than 18 years and 10 years in the teaching and other general departments in the institution or hospitals, not attached to any medical college, where with the affiliation from any university, postgraduate teaching is being imparted as contemplated under sub-regulation (1A) of regulation 8, shall respectively be eligible to be equated as Professor and Associate Professor in the department concerned. The requisite experience for equating a consultant or specialist working in the super-speciality department of the said institution or hospitals as Professor and Associate Professor shall respectively be 16 years and 8 years. Consultants or Specialists having postgraduate degree qualification, working in such an institution or hospital, who do not have the said period of experience, shall be eligible to be equated as Assistant Professor in the department concerned."
13. A proviso to the clause was added by notification dated 17th November, 2009 and the same reads as under :- 22
OA.No.170/00464/2022/CAT/BANGALORE "Provided that such conferment of the nomenclature of designation/status of post graduate medical teachers shall be awarded only to those many number of consultants in the concerned hospital/institution so as to fulfil the minimum requirement for imparting Post Graduate Medical education to the sanctioned annual intake of the respective Govt. hospital/institute."
14. These PGME regulations allowing conferment of equivalent designations to the Consultants or Specialists, having postgraduate degree qualifications as Assistant Professor/ Associate Professor/Professor as the case may be, were provided in order to meet the urgent requirement of requisite number of Assistant Professors/Associate Professors/Professors in various existing postgraduate institutions which would have otherwise faced de-recognition or closure on account of lack of adequate number of teaching staff.
15. The respondents (ESIC) had called for applications from various eligible Specialists for such consideration to be appointed as "Specialists-cumAssistant Professor" under the PGME regulations in order to meet the urgent need of faculty to teach students in the ESIC Medical colleges.
16. The applicant has referred to the judgement in the case of Dr. J.C Panchasheelan passed by the Karnataka High Court in WP No: 16384/2016 dated 31st January 2016. However, a perusal of that judgement indicates that in that case, the High Court had proceeded on the presumption the he had been appointed as an Assistant Professor by the ESIC. The provisions under PGME 2000 regulations which provided for only designation of Specialists and Consultants as Assistant Professor, as a special case to tide over the immediate shortage of teaching faculty, were never discussed or examined in these judgements. The facts of that case appear to be different and it cannot be used as a binding precedent for the present case.
17. The rationalisation policy quoted by the applicant only indicates that for ESIC Hospitals having 200 beds or more, PG qualified GDMOs, after their placement in the concerned specialities, will reduce an equal number of Senior Residents, who are engaged for three years under Residency Scheme against the 40 percent quota of GDMO. This would mean that if 23 OA.No.170/00464/2022/CAT/BANGALORE post graduate qualified GDMOs are available for placement in the concerned speciality, it may reduce the requirement of Senior Residents who are engaged under the three years residency scheme. However, this does not imply that the GDMOs can claim, as a matter of right, a designation as Senior Resident, since this is only a temporary assignment for three years.
18. The applicant holds a regular post of Chief Medical Officer. She has, therefore, no claim against the temporary post of Senior Residents which is under the residency scheme for three years. The applicant, therefore, is not entitled to seek quashing of any process issued on the part of the respondents to fill up the post of Senior Residents on contractual basis for a period of three years."
25. In Dr. Malini J (OA No. 245/2020), supra, this Tribunal considering the recruitment regulations titled Employees State Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations, 2015 and the order designating Dr. Malini J as a Specialist-cum-Assistant Professor as well as the Division Bench ruling of the Hon'ble Delhi High Court in WP (C) No. 7049/2005 (Faculty Association Maulana Azad Medical College and Associated Hospital vs. Union of India & Ors.) held thus:
"19. The Division Bench of the Delhi High Court has, therefore, categorically held that the teaching and non-teaching cadres remain distinct and separate. Consultants and Specialists in the non-teaching sub-cadre continue to remain members of the said cadre and are not entitled to occupy posts meant exclusively for the teaching sub-cadre. The PGME Regulations, 2000 and CGS Rules operate in different fields 24 OA.No.170/00464/2022/CAT/BANGALORE and the equivalence granted for the purpose of the PGME Regulations, 2000 would not affect members of the teaching sub-cadres as it does not amount to transfer or change in sub- cadres. It has also been held that this designation is only to meet the immediate requirements due to shortage/non availability of teaching faculty.
20. These observations relating to specialists (Non-Teaching) and Teaching cadre being distinct without any provision of lateral shift between cadres, would imply that the competent authority cannot be prevented to initiate steps to fill the existing vacancies if any in the teaching cadre at any point of time, on the ground of a suitable specialist (non-teaching) being available for teaching duties in addition to his/her existing duties as a specialist.
21. The applicant, in the present case, is challenging the initiation of the process of recruitment for the teaching post of Associate Professor on contract basis initiated by the ESIC through a walk-in-interview, on the ground that she is eligible to be considered for redesignation as Specialist cum Associate Professor.
22. A perusal of the regulations governing the recruitment for the post of Associate Professor in the ESIC (Medical Teaching Faculty Posts) Recruitment Regulations, 2015, indicate that the post of Associate Professor can be filled up by promotion from the post of Assistant Professor, failing which by direct recruitment or by transfer on deputation or absorption or by short-term contract. In case of recruitment by contract or deputation, the candidate must fulfil the essential qualifications as prescribed. For the purpose of promotion, an Assistant Professor with 5 years regular service in the grade of Assistant Professor is eligible for consideration subject to MCI norms and satisfactory completion of mandatory training.
23. In this case, the ESIC has apparently opted to fill up the available post of Associate Professor by appointment through short-term contract for one year as provided for under the recruitment rules, instead of the other prescribed options such as direct recruitment or transfer on deputation etc. They can 25 OA.No.170/00464/2022/CAT/BANGALORE certainly initiate this mode of appointment since it is provided for under the recruitment rules. However, if the post is a permanent post and there is no suitable person available for appointment on promotion basis, then it would certainly be desirable on the part of the respondents to fill up the post on a permanent basis through direct recruitment as provided for under the rules, instead of opting for short term contract. However, since appointment through short term contract is one of the permitted modes under the recruitment rules, there cannot be any legal bar on the respondents going ahead with this mode of appointment.
24. The applicant cannot claim any right to be appointed to the post of Associate Professor by virtue of her being a member of the specialist cadre. She is governed by her own recruitment regulations which do not provide for any lateral shift. She, therefore has no locus standi to challenge the filling up of the available post of Associate Professor through any of the mechanisms prescribed under the Recruitment Rules for the post of Associate Professor. She would, of course, be free to apply for consideration for the post provided it is advertised for being filled up through direct recruitment or transfer on deputation etc. under the recruitment rules.
25. The applicant is not a regular Assistant Professor appointed under the ESIC (Medical Teaching Faculty Posts) Recruitment Regulations, 2015. Hence, she is ineligible to be considered for appointment on promotion as Associate Professor under these rules.
26. The applicant has referred to the case of one Dr. S.M. Rudresh, who has been promoted as Associate Professor on 18.01.2021. From her pleadings itself, it is evident that Dr. Rudresh was working on the teaching post of Assistant Professor in the Microbiology department and had been appointed as a permanent faculty on 05.04.2013. Hence, being a part of the teaching faculty cadre, he was eligible for consideration for promotion under the ESIC (Medical Teaching Faculty Posts) Recruitment Regulations, 2015.26
OA.No.170/00464/2022/CAT/BANGALORE
27. The applicant has also referred to the judgement in the case of Sri Panchasheelan. However, a perusal of that judgement indicates that in that case, the High Court had proceeded on the presumption the he had been appointed as an Assistant Professor by the ESIC. The provisions under PGME 2000 regulations which provided for only designation of Specialists and Consultants as Assistant Professor, as a special case to tide over the immediate shortage of teaching faculty, was never discussed or examined in these judgements. The facts of that case appear to be different and it cannot be used as a binding precedent for the present case.
28. As far as the request of the applicant for grant of designation of Specialist-cum-Associate Professor under PGME Regulation 2000 is concerned, clause 11.1 (d), permits granting of the designation of Associate Professor to a Specialist or Consultant who has experience in working for a period not less than 10 years in a teaching department in the hospital in Medical College where post-graduate teaching is being imparted as contemplated under sub-regulation (IA) to Regulation 8.
29. The applicant apparently has the requisite experience of more than 10 years in the specialist cadre and could therefore be eligible for such a consideration under the PGME Regulations 2000. This would of course be subject to other administrative considerations such as the need to meet the immediate requirement of teacher in the requisite discipline at the level of Associate Professor till such times as a regular Associate Professor is appointed. However, mere grant of designation of Specialist-cum-Associate Professor would not entitle the applicant to claim any lateral entry into the post of Associate Professor. She also cannot challenge the process initiated by the respondents to fill up the available post of Associate professor under the provisions of the recruitment rules applicable to the post."
26. In the present case, the fulcrum of dispute of re- designation as Senior Resident sought by the applicant requires to 27 OA.No.170/00464/2022/CAT/BANGALORE be examined in the light of the judgments referred supra. As per the material available on record, ESIC entered into the field of Medical Education in the year 2009 with an aim to ensure sufficient availability of Medical Officers to support its primary objective of providing medical care to its beneficiaries as per provisions of the ESIC Act 1948. In accordance with the policy decision taken with the approval of Competent Authority, ESIC Hospital, Rajajinagar was re-established as ESI-PGIMSR, Medical College and Hospital, Rajajinagar and process was initiated to commence Medical Education courses.
27. The Medical Council of India (MCI) prescribes teaching faculty norms required to be posted in the institution for recognition as Medical College and the norms require provisioning of teaching doctors. Since ESIC Hospital Rajajinagar was a running hospital before its conversion as Medical Education Institution, there were a number of non-teaching Doctors in the cadre of Specialists and GDMOs posted in the hospital to provide Medical Services. MCI allowed designation of non-teaching Doctors/Medical Officers who fulfilled the criteria prescribed for the purpose of Medical College. ESIC also considered the willingness of its existing Medical Officers for their designation as teaching faculty. Accordingly, a 28 OA.No.170/00464/2022/CAT/BANGALORE considerable number of Medical Officers, who were fulfilling the MCI eligibility conditions, were designated as Teaching faculty and kept posted in Medical Colleges of ESIC, but obviously, to the extent of administrative feasibility.
28. Many doctors opted for designating as teaching faculty to make their curriculum vitae impressive as it may give them better career prospects. One of the conditions attached with it was that such teaching assignments are in addition to their normal duties and they will continue to be governed by the rules and regulations of his/her initial cadre recruitment and once he/she get transferred from this Institute, such additional designation granted to them will be automatically withdrawn. ESIC is fully financed by the contributions received from workers and their employers. Workers who are deprived class of society contribute 0.75% of their hard- earned wages to the maximum limit of Rs. 21,000/- per month. ESIC has a statutory duty to provide Medical Care to these workers and their family members.
29. Respondents revised the staff strength of doctors posted in ESIC Medical College and Hospital, Rajajinagar vide Rationalization order dated 21.01.2019. The applicant was 29 OA.No.170/00464/2022/CAT/BANGALORE designated as Senior Resident in the Department of Pulmonary Medicine with effect from 07.06.2013 vide Office Order dated 07.06.2013 (Annexure-A4). The applicant took up the entrance examination for Post Graduate course through Post Graduate Common Entrance Test 2014 and secured PG seat by the State Government under in-service quota in MD (General Medicine). Sanction was accorded to the study leave for 3 years for pursuing MD (General Medicine) at Jaya Jagadguru Murugharajendra Medical College at Davanagere and the applicant was relieved of his duties with effect from 31.03.2015. After completion of the PG course, the applicant reported to duty at the hospital from 02.04.2018 and further availed leave from 03.04.2018 till completion of his examination i.e., 10.06.2018. Thereafter, the applicant reported to duty. The 2nd respondent issued the order dated 23.07.2018 transferring the applicant to the ESIC hospital in Varanasi in Uttar Pradesh State.
30. In the impugned speaking order dated 08.08.2022 (Annexure-A1), it is stated that "as per the policy of ESIC Hqrs' office, all the Post Graduate students after their successful completion of Post Graduate course, have to be posted as Senior 30 OA.No.170/00464/2022/CAT/BANGALORE Resident (ESIC-SR) as a part of their compulsory bond and the P.G pass outs have already been posted as Senior Residents in the P.G departments including Dept of General Medicine". If this stance of the respondents is to be accepted, the first question would be, why the applicant was not considered to be posted as Senior Resident after his successful completion of Post Graduate course but was transferred to the ESIC hospital at Varanasi? Indeed, the said transfer order was challenged by the applicant before this Tribunal in OA No. 1365/2018. This Tribunal granted interim order on 16.08.2018. The main ground of challenge was, immediately within 3 months of the posting order issued to the applicant on 02.04.2018 and in violation of seniority and the Transfer Policy of the 2nd respondent, the said transfer order was issued. In view of the rationalization order dated 21.01.2019 issued by the 2nd respondent corporation during the pendency of the said OA No. 1365/2018, the applicant was directed to submit his options for posting to places as sought. The said OA No. 1365/2018 came to be disposed of having become infructuous granting liberty to both the parties.
31. The applicant and the similarly placed persons challenged the rationalization order dated 21.01.2019 before this 31 OA.No.170/00464/2022/CAT/BANGALORE Tribunal. After hearing both sides, OA No. 198/2019 and connected matters came to be dismissed with the observation that all the applicants who are beyond the level of CMO are liable to all-India transfer provided, they have received the benefits stipulated under it and not still covered by the pre-absorption state and below the rank of CMO. Thus, this Tribunal protected those who were CMOs and below the level of CMOs from transfer on all India transfer liability.
32. The representations submitted by the applicant seeking for re-designation as Senior Resident on acquiring PG degree in General Medicine having not been responded, the applicant was constrained to file OA No. 253/2020 before this Tribunal challenging the recruitment notification dated 09.05.2020 issued by the Respondent No. 3 for the post of Senior Resident in the General Medicine department besides seeking a direction to the respondents to re-designate him as Senior Resident. This Tribunal vide interim order dated 22.05.2020 directed to maintain status quo despite walk-in interview has been conducted on 22.05.2020, further observing that, in the interregnum, filling up of one post of Senior Resident, General Medicine, need to be kept vacant till the next 32 OA.No.170/00464/2022/CAT/BANGALORE date of hearing. No further proceedings shall be undertaken pursuant to the walk-in interview conducted on 22.05.2020.
33. That being the position, the 2nd respondent issued the impugned transfer order dated 07.10.2021 transferring the applicant to the 6th respondent hospital at Rudrapur, Uttarakhand and relieved him vide order dated 08.10.2021 (Annexure-A2 and A3, respectively). On the challenge made to the said transfer and relieving orders before this Tribunal in OA No. 498/2021, a common order dated 21.04.2022 was passed by this Tribunal directing the respondents to place the whole matter before the Committee, along with applicant's representations for the purpose of getting his eligibility determined for his re-designation as Senior Resident reserving liberty to the applicant to file a supplementary representation and to consider the same earnestly by the Dean, ESIC Medical College and PGIMSR, Rajajinagar, Bangalore placing reliance on the order passed by this Tribunal in OA No. 570/2021 and connected matters (DD: 31.03.2022).
34. In the said OA No. 570/2021, this Tribunal observed that on perusal of the original records placed by the respondents it was found that pursuant to a communication dated 16.08.2021 issued by 33 OA.No.170/00464/2022/CAT/BANGALORE the ESIC Headquarters a Committee comprising of Dr. Renuka Ramaiah, Professor and HOD-Department of OBG, Dr. Srinivasa Murthy, Head in the Department of Pathology and Dr. B.G. Krishnamurthy, Assistant Director, was constituted by the Dean, ESIC Medical College & PGIMSR, Rajajinagar, Bangalore. The said Committee after undertaking a detailed exercise, determined the eligibility of Dr. Pankaj M Deshmane, IMO Grade-I, Dr. Dilip Kumar S, IMO Grade-I, Dr. Chetan BL, IMO Grade-I, Dr. Anand Patil, IMO Grade-I and Dr. Shiva Kumar D, IMO Grade-I, for their re-designation as Senior Residents. The aforesaid Committee's report was duly examined and the same was forwarded for consideration of ESIC Head Quarters at New Delhi. However, ESIC HQ office requested to re-submit the proposal along with affidavits of willingness of candidates to take the assignment of additional teaching duties and also a declaration form duly recommended and countersigned by the Dean, ESIC Medical College & PGIMSR, Rajajinagar, Bangalore.
35. It has been recorded that the said proposal was not materialized because of a note recorded on the file with regard to pendency of OA No. 253/2020 and OA No. 254/2020. It has been 34 OA.No.170/00464/2022/CAT/BANGALORE noticed that the record further reveals that there is a sanctioned strength of 50 Senior Residents at Bangalore and only 36 are in position. 14 vacancies are available and those could not be filled up by the respondents even by issuing a notice for walk in interview as no eligible candidate was available. Considering these aspects, it was observed thus:
"In the facts and circumstances, we find that a larger public interest is being affected because of the pendency of the whole issue as the patients in the hospital and the students, who are pursuing their studies in the ESIC Medical College, are adversely affected."
36. Having held so, a direction was issued to the Dean, ESIC Medical College and PGIMSR, Rajajinagar, Bangalore to solicit the affidavits of willingness from the candidates to take the assignment of additional teaching duties pursuant to a note of proposal submitted on 30.10.2021 duly approved by the Dean, ESIC Medical College & PGIMSR, Rajajinagar, Bangalore, further issuing a direction to the respondents to revisit the transfer order dated 18.10.2021 after undertaking the exercise as directed and to assign the posting orders as per the eligibility of the candidates therein in accordance with law.
35
OA.No.170/00464/2022/CAT/BANGALORE
37. Learned counsel for the applicant has heavily placed reliance on the orders passed by the respondents whereby similarly placed GDMO's such as the applicant have been designated as Senior Resident from the post as shown under:
Date of order Post
1) Dr. S. Ravikumar 16.07.2020 IMO Grade I
2) Dr. Chetan B.L. 20.06.2022 CMO
3) Dr. Shruti Das Shetty 03.10.2022 CMO
38. Dr. Chetan is one amongst the applicants in OA No. 570/2021 and connected matters referred to, supra. In justifying the action of appointment/designation order of Dr. Chetan, respondents have stated in the reply statement that based on the affidavit submitted by Dr. Chetan B.L., CMO, Office Memorandum dated 26.06.2022, order has been issued granting the assignment of "Additional Teaching Duties (Designation) as Senior Resident in the Department of Dermatology" subject to certain terms and conditions. The additional teaching duties (designation) as Senior Resident granted to Dr. Chetan B.L in question is subject to the following terms and conditions, viz.,:
36
OA.No.170/00464/2022/CAT/BANGALORE "1. It shall be subject to the approval by MCI/concerned/affiliating University.
2. The Assignment of additional duties (designation) of Senior Resident shall be effective from the date of taking over additional charge.
3. He shall continue to perform existing duties assigned him as Specialist/GDMO. In addition, he shall perform the duties of the Teaching Faculty as "Senior Resident".
4. No additional remuneration shall be payable to him on account of such assignment.
5. He shall continue to be governed by the rules and regulations of his initial recruitment/cadre.
6. He shall continue to draw the existing pay scales and allowances.
7. He can be assigned any additional duty by the Competent Authority.
8. The above additional assignment as Senior Resident is subject to the ratification by the NMC/concerned/affiliating University.
9. The above mentioned assignment as Senior Resident is applicable only at present place of posting."
It is stated that the same methodology has been adopted in the case of Dr. Shruthi Das Shetty.
39. The reasons assigned for giving differential treatment to the applicant is that the additional duties as Senior Resident can be 37 OA.No.170/00464/2022/CAT/BANGALORE given only when the candidate is working in the Institution/Hospital of the Respondent Nos. 3 and 4. Since the applicant has already been transferred to other location, similar treatment cannot be given to him. This reason is ex-facie unjustifiable. It appears a methodology has been adopted by the respondents to deprive the applicant in assigning the additional duties as Senior Resident since the representation submitted by the applicant for seeking designation/re-designation as Senior Resident was pending with the respondents and the matter was subjected to judicial scrutiny before this Tribunal in multiple OAs filed by the applicant discussed hereinabove which has culminated in the order passed by this Tribunal dated 21.04.2022 in OA No. 253/2020 and OA No. 498/2021 further by the impugned speaking order dated 08.08.2022 (Annexure-A1). The Committee having found the applicant eligible for Senior Resident, merely for the reason that the applicant has been now transferred to some other location, the applicant's request for Senior Resident cannot be rejected.
40. We are conscious that the Employees' State Insurance Corporation (Medical Teaching Faculty Posts), Recruitment Regulations, 2015 provides for the post of Professor, 50% by 38 OA.No.170/00464/2022/CAT/BANGALORE Promotion from the post of Associate Professor with four years regular service, failing which by deputation or absorption or by short-term contract and 50% by direct recruitment. For the post of Associate Professor, by promotion from the post of Assistant Professor with five years regular service, failing which by direct recruitment or by transfer on deputation or absorption or by short- term contract. For the post of Assistant Professor vide Notification dated 30.05.2022 published on 04.06.2022, method of recruitment is by direct recruitment failing which by deputation including short term contract. For Ex-servicemen: Transfer on deputation or re- employment.
41. Teachers Eligibility Qualifications in Medical Institutions Regulations, 2022 of National Medical Commission prescribes the norms for faculty appointment and promotion wherein for the post of Assistant Professor, one year teaching and research experience as Senior Resident in the concerned subject in a recognized/permitted Medical College after acquiring MD/MS degree is required. 'Senior Resident' is described as one who is doing his residency in the concerned department after obtaining Medical Post Graduate degree (MD/MS/DNB). The post of Senior Resident is tenure post, 39 OA.No.170/00464/2022/CAT/BANGALORE not exceeding three years. The post of Senior Resident is not faculty position. These Regulations have come into force with effect from 14.02.2022. The designation orders of Dr. Chetan B.L. and Dr. Shruthi Das Shetty from CMO are issued subsequent to these Regulations coming into force.
42. From the aforesaid, it is clear that teaching and non- teaching cadres being distinct and separate, Consultants and Specialists in the non-teaching sub-cadre continue to remain members of the said cadre. The additional responsibility of Senior Resident in the teaching line do not create any right to claim promotion as Assistant Professor in the teaching line. The Regulations governing the recruitment for the post of Assistant Professor in the Employees State Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations, 2015, as amended vide Recruitment Regulations dated 30.05.2022 published on 04.06.2022, is by direct recruitment, not by promotion. The additional duties of Senior Resident issued by designation to the CMO would not change the cadre of CMO which has its own promotional avenues. As such, even the applicant is designated as Senior Resident, he cannot claim any right to be appointed to the 40 OA.No.170/00464/2022/CAT/BANGALORE post of Assistant Professor by promotion in the teaching line as he is governed by his own Recruitment Regulations which do not provide for any lateral shift and the Recruitment Rules for Assistant Professor provides the method of recruitment as direct recruitment failing which by deputation including short term contract.
43. At the cost of repetition, it is made clear that even if the applicant is appointed as Senior Resident, no lien can be claimed on such appointment to seek further promotion to the post of Assistant Professor and Associate Professor as observed by this Tribunal in Dr. Tejaswini S.P., supra, (OA No. 185/2022) and Dr. Malini J, supra, (OA No. 245/2020) while dealing with the designation/re- designation with respect to Assistant Professor/Associate Professor. Obviously, the duties discharged as Senior Resident may be considered for the experience purpose. Any designation given as Senior Resident to the GDMO/IMO/CMO being the additional responsibility along with the regular cadre to which he belongs to, the promotional avenues in the original cadre subsists, not the promotional avenues in the teaching faculty.
44. The objectives of the Transfer Policy dated 20.06.2022, as declared, is as under:
41
OA.No.170/00464/2022/CAT/BANGALORE "(i) To meet organizational requirement of doctors with varied experience and job knowledge.
(ii) To provide an opportunity to all doctors to improve their proficiency, self- development and career path.
(iii) To groom officers for taking positions in higher rank and utilise their experience earned with age and position.
(iv) To conform to various DoPT/ Government guidelines/ Supreme Court directions, as far as possible.
(v) To implement Central Vigilance Commission (CVC) guidelines regarding rotation of doctors at clinical postings and in sensitive posts.
(vi) To have right person at right position and place.
(vii) To have transparency in transfer and posting."
45. As per this revised policy all doctors of ESI Corporation shall be covered and will be liable for transfer and posting anywhere in India. However, for the purpose of posting on transfer under this policy, they will be considered in the following priority:
"(i) At the institution of their choice, failing which
(ii) At any of the institution situated at the station of their choice/posting, failing which
(iii) At any of the institution situated within the zone in which the medical officer is posted, failing which,
(iv) In the contiguous zones to the zone in which the medical officer is posted, failing which,
(v) At any location where the vacancy is created/available."42
OA.No.170/00464/2022/CAT/BANGALORE
46. The Zone-wise grouping of States under this new policy is as under:
S.No. Zone States
1 I Jammu & Kashmir, Ladakh, Himachal
Pradesh and Punjab
2 II Delhi and National Capital Region
(including Noida and Sahibabad), Haryana
(including Gurgaon, Faridabad and
Manesar) and Rajasthan (including
Bhiwadi).
3 III Uttar Pradesh (excluding Noida and
Sahibabad); Uttarakhand, Bihar and
Jharkhand.
4 IV Madhya Pradesh and Chhattisgarh
5 V West Bengal, Assam & Entire NEZ and
Odisha
6 VI Maharashtra, Goa and Gujarat
7 VII Andhra Pradesh, Telangana and Karnataka
8 VIII Tamil Nadu, Puducherry and Kerala
47. We are conscious that transfer is an incidence of service and that transfer order cannot be interfered with by the Courts/Tribunals in a routine manner unless malafides whether factual or legal or lack of competency or arbitrariness are established. As could be seen from the records, subsequent to the 43 OA.No.170/00464/2022/CAT/BANGALORE applicant reporting to duty after completion of PG course from 02.04.2018 and during the pendency of his request/representation seeking for designation as Senior Resident, the applicant has been transferred multiple times. It is apparent that during the pendency of litigation relating to the issue on hand, Transfer Policy dated 20.06.2022 has been issued by the respondents. In view of the Transfer Policy of 2022 having come into force with effect from 20.06.2022, where zone-wise grouping of States is made, the applicant's case requires to be considered under the said policy. Merely to deny Senior Residentship to the applicant who is declared to be eligible by the Committee, he cannot be posted to the location where no Medical College is attached to the hospital and to take it as a reason for not considering him for the post of Senior Resident.
48. The appointment/designation given to certain candidates ousting the similarly situated candidates would establish discrimination violating Article 14 of the Constitution. The request of the applicant for Senior Resident is not rejected on the ground of want of vacancy. It is stated in the reply statement that the applicant has to resign from his post and is required to appear for walk-in- 44
OA.No.170/00464/2022/CAT/BANGALORE interview in pursuant to the notification issued. If the said yardstick is applied uniformly for all, there would be no grievance. But it is not so. Cherry picking method adopted by the respondents calls for interference in the case. In order to avoid such discrimination, a transparent method of appointment/designation process is mandatory. In this direction a policy decision has to be taken by the respondents as well as the MCI/NMC to appoint the Senior Residents by framing the Recruitment Rules on a regular basis which may be helpful to achieve the laudable objects of establishing the ESI hospitals attached with Medical Colleges for the insured employees and the students. Public interest at large has to prevail, at the same time, no arbitrariness and discrimination in selection of Senior Resident is acceptable.
49. For the reasons aforesaid, the impugned order dated 08.08.2022 (Annexure-A1) deserves to be set aside. Hence, we pass the following:
:ORDER:
1) The impugned order dated 08.08.2022 (Annexure-A1) issued by the Respondent No. 3 is set aside. The respondents are directed to reconsider the matter in the 45 OA.No.170/00464/2022/CAT/BANGALORE light of the observations made hereinabove and take an appropriate decision by passing a reasoned and speaking order.
2) The respondents shall re-visit the applicant's transfer made vide impugned order dated 07.10.2021 (Annexure-A2) and relieving order dated 08.10.2021 (Annexure-A3) in terms of the Transfer Policy dated 20.06.2022 (Annexure-A42)/prevailing Transfer Policy issued by the respondents.
3) Compliance shall be made in an expedite manner, in any event, not later than eight weeks from the date of receipt of certified copy of the order.
4) OA stands disposed of in terms of above. No order as to costs.
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/