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2 The Employees’ State Insurance Corporation 1 is in appeal against a judgment of a Division Bench of the Karnataka High Court dated 5 September 2019. The Division Bench rejected the petition filed by the appellant against the promotion of the contesting respondents - Respondent 3 to 25, to the post of “Associate Professor” under the Dynamic Assured Career Progression 2 Scheme as opposed to the appellant’s recruitment regulations.

3 ESIC, the appellant, is a statutory body constituted under the Employees’ State Insurance Act 1948 3. The recruitment and promotion of its teaching staff are governed by the Employees’ State Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations 2015 4 which came into effect on 5 July 2015. Respondent 3 to 25 5 joined the appellant as Assistant Professors at ESIC Model Hospital, Rajajinagar, Bengaluru. They joined service between 7 February 2012 and 26 June 2014. The Central Government, through the Central Health Service Division of the Ministry of Health and Family Welfare, had issued the DACP Scheme through an Office Memorandum dated 29 October 2008. The DACP Scheme contemplated promotion as Associate Professor upon completion of two years of service in the post of Assistant Professor as an officer under the Ministry of Health and Family “ESIC” (interchangeably referred to as the appellant) “DACP” “ESI Act” “ESIC Recruitment Regulations 2015” interchangeably referred to as “contesting respondents”  PART A Welfare. After two years of service as Assistant Professor on 2 February 2017, the contesting respondents sought promotion under the DACP Scheme and instituted proceedings before the Central Administrative Tribunal 6, Bengaluru. 4 On 7 February 2018, the CAT relied on the submission by the Counsel for the appellant and held that the ESIC Recruitment Regulations 2015 were not relevant for adjudication of the matter. The CAT also relied on a letter dated 23 September 2014 addressed by the Joint Director of ESIC to the Dean of ESIC which mentioned the implementation of the DACP Scheme to the Medical Officer Cadres. Thus, the CAT directed the appellant to consider the contesting respondents for promotion under the DACP Scheme.

(ii) Section 97 of the ESI Act confers power on the appellant to frame its own regulations. The terms and conditions of service of Assistant Professors are governed by the ESIC Recruitment Regulations 2015. These regulations stipulate that a minimum of five years of qualifying service as Assistant Professor is mandatory for promotion as Associate Professor. The ESIC Regulations 2015 cannot be overridden by the DACP Scheme;

(iii) The Office Memorandum dated 29 October 2008 implementing the DACP Scheme is applicable to employees of the Ministries and Departments of the Central Government, but not a statutory body like the ESIC. The text of the DACP Scheme makes it clear that the Office Memorandum applies to employees of the Ministry of Health, subject to an appropriate amendment in  PART B the recruitment rules. Thus, the DACP Scheme does not override or supersede statutory regulations made under the ESI Act;

(iv) On 23 September 2011, the appellant addressed a letter to the Dean of ESIC Dental College by stating that “the existing recruitment regulations are under active process of revision vis-à-vis provisions of the DACP Scheme”;

(v) The ESIC Recruitment Regulations 2015 were issued without obtaining prior approval from the Central Government, as contemplated under Section 17(2)(a) of the ESI Act;

(vi) After the contesting respondents instituted an application before the CAT, the Assistant Director (Med), CSIC, Headquarter Office addressed a letter to the Medical Superintendent of the ESIC Model Hospital, Rajaji Nagar,  PART B Bangalore on 26 December 2017 stating that “a proposal for considering promotion under DACP Scheme…. is under process”;

(xiv) In other legal proceedings, the appellant has taken the stance that the DACP scheme is applicable to its employees with effect from 01 March 2008 itself.

8 The rival submissions will now be analysed.

C      Analysis


9      The crux of the dispute is about determining the applicable rules/regulations

for promotion of the contesting respondents from the post of Assistant Professor to Associate Professor namely, the ESIC Recruitment Regulations 2008, the DACP Scheme or the ESIC Recruitment Regulations 2015. On 29 October 2008, the Sixth Central Pay Commission recommended the extension of the DACP Scheme to all doctors in employment of the Central Government. The recommendations were accepted by the Union Ministry of Health and Family Welfare through an Office Memorandum dated 29 October 2008 which extended the DACP Scheme to Medical and Dental Doctors in the Central Government. In continuation of the Office Memorandum, the Government of India issued another Office Memorandum dated 29 October 2008 detailing promotion under DACP in various cadres under the Ministry of Health and Welfare. The Scheme enabled promotion from the post of Assistant Professor to Associate Professor after two years of service: