Karnataka High Court
The Employees State Insurance ... vs Union Of India on 5 September, 2019
Bench: L.Narayana Swamy, R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF SEPTEMBER, 2019
:PRESENT:
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE R.DEVDAS
WRIT PETITION NO.24808 OF 2018 (S-CAT)
BETWEEN
THE EMPLOYEES STATE
INSURANCE CORPORATION
REP. BY ITS DIRECTOR GENERAL
PANCHADEEP BHAWAN
C.I.G MARG, NEW DELHI-110 002. ... PETITIONER
(BY SRI VISHNU BHAT, ADVOCATE)
AND
1. UNION OF INDIA
REP. BY ITS SECRETARY
DEPARTMENT OF LABOUR & EMPLOYMENT
MINISTRY OF LABOUR
EMPLOYEES STATE INSURANCE CORPORATION
NO.110, SHRAMSHAKTHI BHAVAN
RAFI MARG, NEW DELHI - 110 001.
2. MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
& PENSIONS,
DEPARTMENT OF PERSONNEL AND TRAINING
GOVT. OF INDIA, NORTH BLOCK
NEW DELHI - 110 001.
REP. BY ITS SECRETARY.
3. DR.SHETTY VINAY BHUJANG
AGED ABOUT 44 YEARS
S/O. BHUJANG
ASST. PROFESSOR (FORENSIC MEDICINE)
ESIC - MIDICAL COLLEGE & PGIMSR
IV BLOCK, RAJAJINAGAR
2
BENGALURU - 560 010.
4. DR. PADMALATHA K
AGED ABOUT 42 YEARS
D/O LATE KADIRAPPA N
ASST.PROFESSOR (ANATOMY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
5. DR. NAVEEN S. KOTUR
AGED ABOUT 40 YERAS
S/O SHIVASHANKAR KOTUR,
ASST.PROFESSOR (PHYSIOLOGY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
6. DR. HEMA N
AGED ABOUT 41 YEARS
D/O S NANJUNDARAJU,
ASST.PROFESSOR (ANATOMY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
7. DR. N NIRANJAN MURTHY H. L.
AGED ABOUT 49 YEARS
S/O. LATE LINGAIAH H.K.
ASST.PROFESSOR (PHYSIOLOGY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
8. DR. SANDHYALAKSHMI B N
AGED ABOUT 39 YEARS
D/O NAGARAJA B
ASST.PROFESSOR (PATHOLOGY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
9. DR. KAMALA R
AGED ABOUT 37 YEARS
D/O RAJENDRA B
ASST.PROFESSOR (DENTISTRY)
3
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
10. DR. SEEMA P
AGED ABOUT 46 YEARS
D/O DR M S PRAKASH
ASST.PROFESSOR (COMMUNITY MEDICINE)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
11. DR. SHAKUNTALA P N
AGED ABOUT 46 YEARS
D/O P B NANAIHA,
ASST.PROFESSOR (OBSTETRICS & GYNAECOLOGY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
12. DR. NANDA K
AGED ABOUT 43 YEARS
D/O B S KEERTHI KUMAR,
ASST.PROFESSOR (BIO-CHEMISTRY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
13. DR. B N SHARATH
AGED ABOUT 41 YEARS
S/O. B D NAGARAJA,
ASST.PROFESSOR (COMMUNITY MEDICINE)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
14. DR. GIRISH M BENGALORKAR
AGED ABOUT 40 YEARS
S/O. C V MUNIRUDRAPPA,
ASST.PROFESSOR (PHARMACOLOGY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
4
15. DR. PRASAD BYRAV D S
AGED ABOUT 39 YEARS
S/O SHIVARAMAIAH S
ASST.PROFESSOR (PHARMACOLOGY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
16. DR. PRADEEP KUMAR S
AGED ABOUT 39 YEARS
S/O M SHANMUGAM,
ASST.PROFESSOR (GENERAL SURGERY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
17. DR. DEEPTHI R
AGED ABOUT 37 YEARS
S/O D S RAMAMURTHY,
ASST.PROFESSOR (COMMUNITY MEDICINE)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
18. DR. PREETHAM RAJ G
AGED ABOUT 36 YEARS
S/O G N RAJKUMAR,
ASST.PROFESSOR (GENERAL SURGERY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
19. DR. RUDRESH S M
AGED ABOUT 35 YEARS
S/O MANOHARA S
ASST.PROFESSOR (MICRO BIOLOGY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
20. DR. PREETHAM S
AGED ABOUT 43 YEARS
S/O SHARANAPPA R
ASST.PROFESSOR (SKIN & VD)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
5
BENGALURU-560 010.
21. DR. KUSUMA NAIK M V
AGED ABOUT 39 YEARS
S/O M VENKATA SWAMY
ASST.PROFESSOR (OBSTETRICS & GYNAECOLOGY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
22. DR. SHYLAJA PRASHANTH
AGED ABOUT 37 YEARS
S/O NAGARAJU N
ASST.PROFESSOR (RADIOLOGY)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
23. DR. BASAVARAJ
AGED ABOUT 36 YEARS
S/O HANMANTH
ASST.PROFESSOR(PAEDIATRICS)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
24. DR. SHASHI KUMAR M
AGED ABOUT 36 YEARS
S/O Y MUNEGOWDA,
ASST.PROFESSOR (COMMUNITY MEDICINE)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010.
25. DR. HARISH Y S
AGED ABOUT 35 YEARS
S/O SHIVANNA,
ASST.PROFESSOR(ORTHOPAEDIC)
ESIC-MEDICAL COLLEGE & PGIMSR,
IV-BLOCK,RAJAJINAGAR,
BENGALURU-560 010. ... RESPONDENTS
(BY SRI. H.S.RUKKOJI RAO, ADVOCATE FOR R1;
SRI. N.G.PHADKE, ADVOCATE FOR R3 TO R25;
R2 DISMISSED V/O. DATED 14.06.2019)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS FROM THE HON'BLE CAT, BENGALURU BENCH AND
QUASH THE ORDER DATED 07.02.2018 IN
O.A.NO.170/00062/2017 ON THE FILE OF THE SAID HON'BLE
CAT, BENGALURU (ANNEXURE-A TO THE WP) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, NARAYANA SWAMY J, MADE
THE FOLLOWING:
ORDER
The Respondents 3 to 25 are the applicants before the Central Administrative Tribunal, Bangalore Bench, Bangalore, with a prayer to consider their cases under DACP Scheme dated 29.10.2008. The Respondents are all working as Assistant Professors at the relevant point of time and they were entitled for being considered for promotion to the cadre of Associate Professors with the ESI Corporation in which the respondents are working. The ESI Corporation is a Statutory Body constituted under ESI Act, 1948, and comes under the Administrative Control of Ministry of Labour and Employment, Govt of India. The petitioner ESI Corporation is a statutory body created under Section 3 of ESI Act, 1948, and is instrumental in implementation of the ESI Scheme providing Medical as 7 well as other benefits as envisaged under ESI Act. The recruitment rules were framed and brought into effect on 3rd July, 2012. For the purpose of giving promotion from the post of Assistant Professor to Associate Professor the requisite qualification is that one should have put in minimum of 5 years qualifying service as Assistant Professor. Learned counsel for the petitioner submits that under this Rule, a notification was issued calling for DPC and the case of respondents have been considered and they have satisfied eligibility criteria by completing 5 years qualifying service as prescribed. They have been promoted from the date of eligibility of completing 5 years of service in the cadre of Asst. Professors to Associate Professor.
2. In view of the official memorandum which prescribed the qualifying service as 2 years for promotion to the post of Associate Professor from the cadre of Asst. Professor, the petitioner claims that his case should be considered for promotion, as per the OM. Since the appellant had not considered the case of the applicants for promotion even after completion of 2 8 years qualifying service, they have preferred the OA before the CAT and sought to direct the respondents to effect their promotion from the date of eligibility of completion of 2 years in the cadre of Asst. Professors.
3. After service of notice, the respondents in the application have put their appearance before the Tribunal. After hearing, the Tribunal on the basis of the submission made by the applicants, allowed the application and it has been observed by the Tribunal that the learned counsel for the respondents submits that the respondents concur with their views pursuant to the notification and DAPC will be available to all those who have completed 2 years per-se. The earlier objection internally raised regarding 5 years term required under Recruitment Rules is no longer relevant. Observing thus, the application has been allowed to that extent. Against this, this writ petition has been filed before this Court.
4. The learned counsel for the appellant has taken a ground that when the recruitment rules have been published under Insurance Act, 1948, it assumes the 9 character of statutory nature and as per rule, the promotion has been given to those who have completed 5 years of service in the lower grade. On the other hand it is submitted that as per OM the required qualification is 2 years as per DACP (Dynamic Assured Career Progression scheme). The question arises as to whether recruitment rules of 1948 prevails or DACP. Whether the ESI is independent in nature and it has got its own rules and whether they militate against each other. These things have not been considered by the Tribunal. Hence prays for allowing the writ petition and the order of the Tribunal is liable to be set aside.
5. The learned counsel for respondents who are applicants before the CAT sought to dismiss this petition. It is his submission that the Union of India by its OM dated 29.10.2008 has extended the Dynamic Assured Career Progression (DACP) Scheme upto Senior Administrative Grade (SAG) level in respect of all Medical and Dental Doctors. The learned counsel further referred to Annexure A-7 dated 23.9..2014 which is a letter addressed to the Dean ESIC Dental 10 College from the Joint Director of ESI Corporation, New Delhi in which it is stated that " Further the promotional avenues as envisaged in the DACP Scheme of the Central Government is also implemented by the ESIC to its Medical Officer Cadres (teaching and non- teaching and it is pertinently mentioned that the existing RR for teaching faculties is under active progress of revision vis-à-vis provisions of DACP Scheme". When this is the correspondence, the grounds taken that DACP is not applicable does not sustain in law and the same is liable to be setaside. He also further referred to the order dated 29.10.2008 He further submitted that Clause 6 of the Scheme specifically states that the amendment made to the retrospective recruitment rules wherever necessary consequent upon the above decision made in due course means that the order of Government of India has taken into consideration the amendment for the purpose of incorporation in the service rules. When such being the case, the order passed by the Tribunal is 11 in accordance with law and no error is found in the impugned order.
6. He has also referred to Insurance Act 1948 wherein in Clause 17 (2)(a) it is stated that the method of recruitment salary, and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding in this scales of pay and provided that when Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government. As per this it is submitted that the recruitment rules came into effect in 2015. Now the respondents are working as Professors. Some of these respondents who have completed 2 years got eligibility to promote as Associate Professors by completing the service of 2 years even before the recruitment rules came into effect and their 12 eligibility for promotion should be considered as per the OM and DACP.
7. We have heard the learned counsel for both sides. Though there is contradiction between statutory rules and DACP scheme but the scheme occupied the field in the year 2008 and promotion and service conditions in a DACP was governed and active, which entitled the Doctors who had completed 2 years of service for promotion as Associate professors even before the recruitment rules came into force. Accordingly, they were entitled to get the relief before the CAT. The DACP scheme was passed by Govt of India U/s 17 which has been incorporated earlier. As per Section 17 where the Corporation is of opinion that it is necessary to make departure from the said rules, necessary permission should be obtained from the Government and it is seen that no such permission has been obtained from the Government. The respondents - applicants also addressed a letter to the Dean of ESIC Dental college stating that ESI scheme would be implemented. Moreover, the learned counsel had made 13 a submission to the CAT that the Corporation shall implement the scheme by taking note of 2 years equivalent service for the promotion to the Associate Professor. There is no error committed by the Tribunal.
8. For the aforesaid reasons we find that the order passed by the Tribunal is just and proper and there is no error committed by it. Under these circumstances, we hold that DACP of 2008 which prescribes 2 years of service or equivalent service for the purpose of promotion to Associate Professor is applicable to the respondents. The same has been rightly considered by the Tribunal. With these observations, the writ petition is dismissed.
Sd/-
JUDGE Sd/-
JUDGE nm