Central Administrative Tribunal - Bangalore
Dr Malini J vs Employees State Insurance Corporation on 31 March, 2023
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OA.No.245/20220/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00245/2020
Order Reserved on: 16.02.2023
Date of Order: 31.03.2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Dr. Malini. J,
Age: 46 years
W/o Dr. Shaji Narayanan,
Working as Specialist Grade I/ Assistant Professor,
At ESIC Model Hospital- PGIMSR
Rajajinagar, Bengaluru-560 010.
Residing at: 205, Gajanand Mandir Apartments,
3rd Main Road, V.S. Layout, Vidyaranyapura,
Bangalore - 560097. ..Applicant.
(By Advocate Smt Akkamahadevi Hiremath)
Vs.
1.Union of India
Ministry of Labour and Employment,
Government of India,
Nirman Bhavan, New Delhi-110 011,
Represented by its Secretary,
2. Employees State Insurance Corporation,
Hqrs. Office, Panchadeep Bhavan,
C.I.G Marg, New Delhi-110 002.
Represented by its Director General.
3. The Employees State Insurance Corporation
Model Hospital & PGIMSR, Rajajinagar,
Bangalore-560 010,
Represented by its Dean. ....Respondents
(By Shri N. Amaresh, Sr. Panel Counsel)
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ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To quash the Walk-in-Interview Notification bearing No.532/A/12/CONT.TF/2020 dated 04.05.2020 for Recruitment (Walk-in-Interview) on 18.5.2020 for the post of Associate Professor in Microbiology at Sl.No.1 of item No.2 for the ESIC Medical College & PGIMSR and Medical College, Rajajinagar Bangalore (On contractual basis for a period of one year), which has been issued by the 3rd Respondent-Dean, (Annexure-A1).
b) To direct Respondents No.2 and 3 to consider the Applicant for designation/promotion to the post of Associate Professor of Microbiology from the date of her becoming eligible/her representation dated 01.4.2013.
c) Grant any such relief as deemed fit in the facts and circumstances of the case and in the interest of justice.
2. The facts of the case as pleaded by the applicant in her pleadings, are as follows:
a) The Applicant is a Specialist in M.D. (Microbiology). She joined the Employees State Insurance Hospital Rajajinagar, Bangalore as a Specialist on a contractual basis from 09.06.2008 to 22.07.2009.
Subsequently the applicant was selected as Specialist Grade 2 on 3 OA.No.245/20220/CAT/Bangalore Bench permanent basis by the 2nd Respondent and assumed the charge as such on 23.07.2009.
b) The 2nd Respondent issued a communication dated 11.7.2008 requesting for options from the existing Specialists who may like to be considered for teaching faculty. The Respondent also extracted the Regulation 11.1 (d) incorporated on 15.3.2005 in the Post Graduate Medical Education (PGME) Regulations which 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."
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c) The Respondents also stated that the Specialists will be designated as Assistant Professors/Associate professors as per Rule and they will continue in their existing pay scale and hence, directed to obtain willingness for consideration as a teaching faculty. The letter also stated that the final appointment in teaching faculty shall be subject to approval by the concerned University/MCI.
d) In response to the said communication, the Applicant and a few other Specialists/Medical officers who were eligible for the Post of Assistant Professors submitted the Proforma to the Medical Superintendent, ESIC Rajajinagar. The Joint Director, ESIC Bangalore issued a Circular dated 21.8.2009 calling for submission of Information and their willingness to be designated as teaching faculty for the proposed ESI PGIMSR, Rajajinagar.
e) The Deputy Medical Commissioner vide Memorandum dated 23.9.2009 approved the designation of the Applicant as Specialist- cum-Assistant Professor for the proposed ESI & PGIMSR Medical College. It was specified in the Memorandum that they will continue to draw the existing pay scale and allowances and no additional remuneration will be payable to them on account of such designation. The Joint Director, Administration also issued the Office Order dated 11.12.2009 intimating the approval with conditions. Since then the Applicant has been teaching as Assistant Professor and her name is also shown every year as Assistant Professor in the Schedule Book submitted to the Medical Council of India.
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f) The 2nd Respondent started the Post Graduate Courses from the academic year 2009-2010 onwards, whereas, Under Graduate course (MBBS) started from the academic year 2012-13. The Applicant began to work as Specialist-cum-Asst. Professor from the date of beginning of the first batch of PG Course in the 3rd Respondent College. The Applicant's name has been continuously submitted to the MCI as Assistant Professor in the Declaration Form.
g) Prior to joining at the 3rd Respondent Hospital as Specialist, the Applicant had worked as Assistant Professor in Pushpagiri Medical College, Tiruvalla, Kerala from 16.8.2003 to 13.1.2005 and at Adichunchanagiri Medical College, Belur, Karnataka from 15.1.2005 to 30.6.2005 and at Narayana Medical College, Nellur, Andhra Pradesh from 1.10.2006 to 08.06.2008.
h) The Applicant, thus became eligible for the post of Associate Professor and, therefore, submitted her application to designate her as the Associate Professor in the 3rd Respondent College. In response to the application submitted by the Applicant, the 3rd Respondent-Dean forwarded the application to the Registrar, RGUHS on 24.11.2011 for consideration as Associate Professor and for necessary action.
i) Again on 7.7.2012, the Medical Superintendent, ESIC Bangalore forwarded vide communication dated 7.7.2012 to the Medical Commissioner, ESIC Head Quarters, the names of eligible specialists for consideration for the post of Associate Professor. The Dean also 6 OA.No.245/20220/CAT/Bangalore Bench recommended vide his communication dated 20.7.2012 the Applicant's name for re-designation as Associate Professor, (Annexure A10).
j) The Applicant submitted several such representations to re-designate her as the Associate Professor. The copies of representations dated. 20.07.2012, 21.04.2015, 17.09.2018, 30.3.2020 and 01.04.2020 are produced herewith as Annexure A-11, A-12, A-13, A-14, and A 15, respectively.
k) Despite several requests and representations, Respondents No.2 and 3 failed to consider and re-designate the applicant for the post of Associate Professor. The applicant fulfils all the conditions of eligibility for the said post and is entitled to it in law.
l) One Dr J.C Panchasheelan was appointed as General Duty Medical Officer in the State ESI and was absorbed along with the Applicant herein with the 2nd Respondent Corporation in 2006. However, he was re-designated as Asst. Professor from 2009, and later designated as Associate Professor from 2013. However, despite having filled up the only post of Associate Professor, the Respondents issued a fresh notification calling for recruitment to the said post. The said Dr Panchasheelan approached this Tribunal in OA No. 588/2014 and the OA came to be allowed on 9.9.2015. This Tribunal directed the Respondents to designate Dr Panchasheelan as Associate professor and grant him equivalent benefits. Against the said order, the 2nd Respondent approached the Hon'ble High Court of Karnataka in WP 7 OA.No.245/20220/CAT/Bangalore Bench No. 16384/2016. The Hon'ble High Court dismissed the Writ Petition vide judgement dated 31.1.2017, and confirmed the said Order.
m) The Guru Gobind Singh Indraprastha University, New Delhi, vide its letter dated 01.09.2015 also invited applications from doctors working in ESI Medical College, New Delhi, under its jurisdiction, for upgradation/equated designation in accordance with the amended MCI TEQ Regulations, and similarly situated ESI doctors were granted designations to the teaching post they were entitled to.
n) Though the only post of Associate Professor is vacant now, the Respondents are not considering the Applicant for the said post deliberately, for extraneous reasons, despite the Respondents themselves having sought for the Applicant's particular's for re- designation/promotion to the post of Associate Professor for the last several years, and the Applicant herself having made several representations for the same over the last several years.
o) The Employees Slate Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations, 2008 and the subsequent Regulations of 2015 which superseded the former, both, stipulate that the Associate Professor's post is to be filled up by promotion, and only if that is not possible then by direct recruitment.
p) At present, the post of one Associate Professor is vacant from February 2016. Though the post of Associate Professor is vacant now, the Respondents are not re-designating the Applicant for the said post 8 OA.No.245/20220/CAT/Bangalore Bench deliberately, for extraneous reasons, despite multiple requests by the Applicant over a period of several years.
q) The 2nd Respondent issued a WALK-IN-INTERVIEW Circular/public notice dated 11.3.2020 calling for eligible candidates for the post of Associate Professor to be held on 26.3.2020 in the Department of microbiology and other departments, as per the norms of the MCI. The said circular was cancelled as the Central Government announced LOCKDOWN due to COVID 19 commencing from 24.3.2020.
r) Once again, though the Lockdown is still in force, for the reasons best known to the 3rd Respondent, issued another Circular on 04.05.2020 for Recruitment for the post of Professor, Associate Professor on contractual basis for one year. The Respondent fixed the date of Walk- in-interview on 18.5.2020. The Applicant submitted a representation dated 18.3.2020 produced as Annexure A-14, to hold back the interview and repeated her request to consider her re-designation as Associate Professor.
s) The qualifications prescribed under the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 for the post of Associate Professors are as follows:
(i) As Assistant Professor in the concerned subject for four years in a recognized medical college 9 OA.No.245/20220/CAT/Bangalore Bench
(ii) Two Research Papers accepted/published in Index/national journal as first/second author during the tenure of Assistant Professor.
If a DNB Qualified candidate (broad/super-speciality) having fulfilled the requirements as per clause 4(iii) mentioned below for appointment as Assistant Professor or is already working in a MCI recognized Medical college/central institute, he/she would be further promoted as per Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 as amended. The requisite experience for equating a Consultant or Specialist (after possessing postgraduate medical degree in the subject) working in the concerned specialty in a minimum 300 bedded ESI Hospitals as associate professor shall be more than 10 years with Two Research publication in indexed journal Author as 1st Author or corresponding author. Such Consultant or Specialist after joining a medical college shall be designated as "Associate Professor"
t) The Applicant fulfils the eligibility as per Regulation (i) of requirements under Table 1 of the aforesaid Regulations for the Microbiology subject.
u) Respondent No 2 has framed Recruitment Regulations called as "Employees' State Insurance Corporation (Medical Teaching Faculty Posts), Recruitment Regulations, 2020, by superseding the 10 OA.No.245/20220/CAT/Bangalore Bench Recruitment Regulations 2008 and 2015 and issued a Notification dated NIL. The Respondent uploaded the said Regulations on their website. The same is awaiting being gazetted by the 1st Respondent.
The said Regulations make provision for re-designating the existing Specialists as teaching faculty. The Respondent No 3 has hurriedly issued Walk-in- Interview in order to overcome the said Regulations.
3. The respondents have filed their written statement wherein they have averred as follows:
a) ESIC ventured into the field of Medical Education to improve medical services to be provided to its beneficiaries. Setting up of Medical Colleges in ESIC Hospitals is one of the steps taken by the Respondents organisation to improve medical services and cater to the needs of its beneficiaries.
b) Medical Council of India (MCI) is the competent authority to establish norms for recognition of any institution as Medical Education Institute/Hospital. As per norms of MCI, it is mandatory for a medical education institution to post Specialists (Teaching) for recognition.
Therefore, specific cadre of Specialists (Teaching) consisting of Assistant Professors, Associate Professors and Professors has been sanctioned for ESIC Medical College, Rajajinagar & as per norms of MCI, ESIC appointed teaching faculty on regular/contractual basis at ESIC Medical College Rajajinagar in due course.
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c) In the initial phase of the commencement of Medical Education Institution at Rajajinagar, the Applicants, who are Specialist (Non- teaching), were posted in ESIC Medical College & Hospital Rajajinagar as "stop-gap/initial arrangement" till posting of Specialist (Teaching), as required as per MCI norms.
d) Teaching cadre is a separate cadre in itself having separate recruitment rules. However, ESIC has positively considered the requests of existing Non-teaching Specialists for their re-designation as teaching faculty in respect of those who were fulfilling the criteria as per MCI norms, subject to the limit of sanctioned strength and availability of vacancy in the discipline concerned.
e) A considerable number of medical officials, who were fulfilling the MCI eligibility conditions, have been designated as teaching faculty and kept posted in other ESIC Medical Colleges, but obviously, to the extent of administrative feasibility and only the excessive designations and re-designations are being streamlined.
f) The Applicant herein was designated as "Specialist cum Assistant Professor" and her name was submitted before MCI as she was performing teaching duties as an "additional duty" to her existing specialist duties. Such assignment of additional duties does not mean the change in cadre of Applicant. She was never stopped to apply for the post of Teaching Specialists, if she otherwise fulfils the eligibility criteria for the same and intends to seek regular appointment to that particular post in her own interest.
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g) The organization has all the capacity to recruit/engage the required number of Teaching Specialists to maintain the recognition status of the institute as a medical college as per MCI norms. Since the MCI rules permitted, ESIC designated its non-teaching specialists as teaching specialists who fulfilled the eligibility criteria and in this manner ESIC accommodated the requests of non-teaching specialists for their posting in Rajajinagar Hospital, otherwise they would have been transferred out.
h) The Applicant was appointed for the post of "Specialist Grade-II (Jr. Scale) (Microbiology) in the respondent Corporation through "direct recruitment". As mentioned in her offer of appointment memorandum dated 30.07.2009, she was placed in pay band 3 (Rs. 15600-39100/-) with grade pay of Rs.6600/- plus Non-practising allowance at the admissible rate. It was also duly mentioned under the terms & conditions clause 3(d) of her appointment that "she will be borne on Karnataka Cadre of Specialists (Non-teaching)' which clarifies that she belongs to the specialists (non-teaching) cadre. Her cadre of specialists (Non-teaching) being different from Specialist (Teaching) cadre (comprising of Assistant Professors, Associate Professors & Professors grade), the Applicant cannot be considered eligible to be promoted in the Specialist (teaching) grade. There is no provision of lateral entry between these two separate cadre structures in the respondent Corporation at present. Copies of the existing RRs of Specialist (non- 13
OA.No.245/20220/CAT/Bangalore Bench teaching) & Specialist (Teaching) cadre in ESIC are enclosed under (Annex-R-3 &R-4).
i) The Applicant has no right for her designation as Associate Professor and the same is a matter of administrative feasibility. If at all she is interested in teaching duties on regular basis, ESIC has never obstructed her way to apply for the post as an open candidate subject to her selection as per procedure. The additional duties assigned to the Applicant is on her own choice and option does not confer any right for her placement in teaching specialist cadre beyond the provisions of Recruitment Rules.
j) Being recruited in the cadre of "Specialist Gr-II (non-teaching), her promotional channel has to be guided under extant recruitment regulations of "Specialist (non-teaching)" cadre itself and having additional duty of teaching faculty as a designated Assistant Professor cannot pave the way for the Applicant to get lateral entry to the post of regular Associate Professor (teaching) in the respondent corporation. Also, it is an undeniable fact that the 'designated post' of the Applicant in the Respondent Corporation is "institute-specific" and her original post belongs to the cadre of "Specialist (non-teaching)".
k) The post of Associate Professor can be filled by promotion from feeder cadre i.e. Assistant Professor, whereas the applicant has not been appointed as a regular Assistant Professor.
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l) The Applicant belongs to "Specialist (non-teaching)" cadre. The designated employee's service profile (promotion etc.) will be governed by the extant service rules as laid in his parent cadre RR viz. Specialist (non-teaching) cadre in this instant case.
m) The issuance of draft revised RRs of teaching faculty issued by Respondent Corporation vide their letter dated 20.01.2020 (Annexure A-24 of OA), is a matter of record, These draft RRs do not make any provision for re-designating the existing specialists as Teaching faculty. The RRs merely provide that the experience of any candidate during the period when he/she is designated as teaching faculty, would count as eligibility criteria for appointment to the post applied for. Each and every candidate has to go through the prescribed channel of selection.
n) With regards to the contention of the applicant regarding the applicability of the judgement delivered in the case of Shri Panchasheelan, the respondents have stated that in that case, the Honorable High Court proceeded on the basis that Sri Panchasheelan was a regular Assistant Professor and he was entitled to be promoted as Associate Professor and there was no requirement of issuing a notification to fill up one and only available vacancy of Associate Professor. The Panchasheelan case is not a binding precedent. The Panchasheelan case was decided by this Tribunal on 29.09.2015 and the High Court Judgement was on 31.01.2017. In the meanwhile Delhi High Court rendered a judgement in Faculty Association, Maulana 15 OA.No.245/20220/CAT/Bangalore Bench Azad Medical College and associated Hospital case in WP No:
7049/2005 on 9.11.2016, and Dr. Maruthi Sinha case in OA No:
84/2013 was decided on 17.07.2017. The ESIC was not a party in any of these proceedings and hence, could not bring the developments to the knowledge of this Tribunal as well as the High Court of Karnataka. In these judgements, the courts have discussed in detail about what are the qualifications required, what are the rules applicable and have rendered a judgement after a detailed discussion. These judgements constitute a binding precedent.
o) The respondents have referred to a Judgment of the High Court of Delhi delivered vide its order dated 09.11.2016 in WP(c ) No. 7049/2005, filed by Faculty Association, Maulana Azad Medical College and Associated Hospital vs. UOI. This case was disposed of with the following conclusions:
"Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 treats Consultants or Specialists having the requisite experience not attached to medical colleges but post-graduate institutions covered by Sub- Regulation 1A to Regulation 8 as Professors, Associate Professors and Assistant Professors. The Applicants are unable to establish and show that clause (d) to Regulation 11.1 is illegal or bad in law. On the other hand, the respondents have been able to show and establish the reason and cause why the aforesaid clause was enacted by the MCI. The object and purpose were to allow and permit post-graduate courses already in existence should not close 16 OA.No.245/20220/CAT/Bangalore Bench down and stop pursuant to the promulgation of PGME Regulations, 2000
(ii) Clause (d) of Regulation 11.l of the PGME Regulations, 2000 is not in conflict with the CHS Rules in any manner. 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 CHS Rules operate in different fields 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.
(iii ) Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 does not postulate one-time exception and there can be subsequent designations as long as there is a shortage of Professors, Associate Professors or Assistant Professors belonging to the teaching sub- cadres.
(iv) Designations for the purpose of clause (d) to Regulation 11.1 of the PGME Regulations, 2000 can be only awarded to Consultants and Specialists who fulfil the minimum requirement for imparting post-graduate medical education to the sanctioned annual intake in the respective government institutions/hospitals and cannot exceed the said numbers."
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4. The applicant has filed a rejoinder to the reply filed by the respondents and has averred as follows:
a) The process of re-designation was initiated by the Corporation to utilize the qualification of the Applicants, and at no point of time were suo-moto requests made by the Applicants, nor did the process start with the Applicants. The Respondents, have, from time to time, invited the eligible Doctors employed by it in different non-teaching posts and cadres to come forward and obtain re-designation in the teaching cadre and only thereupon the Applicants and other similarly situated doctors have responded. This was due to the dire need of the Respondents themselves, and in fact the law was tailor made by the Medical Council of India (MCI) for the purpose of the Respondent-ESIC itself, so that it could utilize its inhouse Doctors i.e. Specialists, Consultants, etc.
b) The Applicant has been performing the duties of Assistant Professor almost since the inception of the College and in fact without the Applicant's services the Respondent would have not only failed to get permission to start the Medical College, but also not get permanent recognition five years later.
c) The Respondents have admitted that they have re-designated subject to the limit of sanctioned strength and availability of vacancy in the discipline concerned. The fact that there is a vacancy is the reason why the Respondents have advertised for it, and hence, on this count also the Applicants entitlement is confirmed.18
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d) The Respondent admits that the sole criteria for re-designation, is that of administrative feasibility and only the excessive designations and re-designations are being streamlined, which also supports the Applicant's case, because when a post is notified for recruitment, it automatically means that there is administrative feasibility, nay absolute administrative requirement, and hence there cannot be a case of excessive designation/re-designation either.
e) Doctors who are Junior to the Applicant and have lesser number of years as an Assistant Professor, have become Associate Professors while the applicants have been suffering a blow to their dignity as not being given their rightful designation which is their due. A case in point is that of Dr. S.M. Rudresh, Assistant Professor in the Microbiology department in the very same Medical College, who despite being appointed as permanent faculty on 05.04.2013, many years later than the Applicant and being her Junior, was promoted as Associate Professor under the time bound DACP scheme, vide Office Order dated 18.01.2021. The Applicant was Re-designated as Assistant professor on 11.2.2009 in the Respondent Medical College, she was eligible to be re-designated again as an Associate Professor on 11.12.2013. If her past experience in other Medical Colleges as Assistant Professor is also taken into account, then she was eligible to be re-designated again as an Associate Professor on 11.04.2011.
f) The MCI amendment is legally valid and clears the way for designation of Non-teaching staff as Professor, Associate Professor and Assistant 19 OA.No.245/20220/CAT/Bangalore Bench Professor based on their eligibility. The Hon'ble High Court stated in the order that designating the non-teaching staff does not affect the members of the teaching cadre, as it does not amount to change in sub- cadres, which change the Applicants herein are not seeking, as they are seeking only further re-designation. In fact, the said Judgement makes it clear, re-designation is not a onetime affair, and can be done as and when there is a vacancy of the post within the sanctioned strength, which indeed is there in the instant case. Clause (d) to regulation 11.1 of the PGME Regulations, 2000 does not postulate one time exception and there can be subsequent designations as long as there is shortage of Professors, Associate Professors or Assistant Professors belonging to the teaching sub-cadres.
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. In the present case, the applicant is seeking consideration for designation/promotion to the post of Associate Professor of Microbiology from the date of her becoming eligible for the said post. She has also sought for quashing of the notification dated 04.5.2020, through which the post of Associate Professor (Microbiology) in the ESIC & PGIMSR Medical College, Rajajinagar, Bangalore was advertised to be filled up on contract basis through a "walk in interview".
7. During the course of hearing in the matter, it was clarified by the respondents' counsel, that the process of selection through a "walk in interview" to be held on 18.05.2020 as advertised by the respondents vide 20 OA.No.245/20220/CAT/Bangalore Bench Annexure-A1 on 4.5.2020, so far as the applicant is concerned, was stayed by this Tribunal vide its orders dated 19.05.2020. Since the process continued to be under interim stay since then, the process of selection under short term contract for a period of one year for the post of Associate Professor in Microbiology, had been rendered infructuous with the flux of time. Hence, the first prayer sought by the applicant seeking quashing of the "walk in interview" for the post of Associate Professor Microbiology advertised on 4.05.2020 is of no relevance at this stage.
8. It is an admitted fact that the applicant was initially appointed as a Junior Specialist Gr-II on 23.7.2009. The cadre of Specialist (Non-Teaching) in ESIC is governed under Regulations called the Employees State Insurance Corporation (Specialist Cadre Post) Recruitment Regulations, 2010. Under these rules, the persons who are initially appointed as Junior Specialist Gr.- II are eligible for promotion as Junior Specialist Gr.-I (Level-12), Senior Specialist Grade (non-functional Selection Grade- NFSG) (Leverl-13) and Senior Specialist Grade (Sr. Administrative Grade -SAG) Level-14. The applicant is currently working as Sr. Specialist Gr.I. She belongs to the Specialist (Non-teaching) cadre of doctors in the ESIC.
9. The PGME Regulations, 2000 were 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 of specialists who have the experience of working for a period of not less than 18 years and 10 years in the teaching 21 OA.No.245/20220/CAT/Bangalore Bench 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."
10. A proviso to the clause was added by notification dated 17th November, 2009 and the same reads as under :-
"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."
11. 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. 22
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12. The respondents (ESIC) called for applications from various eligible Specialists for such consideration to be appointed as "Specialists-cum- Assistant Professor" under the PGME regulations in order to meet the urgent need of faculty to teach students in the ESIC Medical colleges. The applicant also applied for the same and was appointed as Specialist-cum-Assistant Professor w.e.f. 2009.
13. The conditions prescribed by the respondents in the order designating the applicant as a Specialists-cum- Assistant Professor, clearly stated as follows:
i. The designation of these specialists as "Specialist-cum-Assistant Professor" will be effective from the date of assuming charge. They will continue to perform existing duties of specialists assigned to them. In addition, they will perform the duties of teaching faculty as Assistant Professor.
ii. They will continue to draw the existing pay scale and allowances and no additional remuneration will be payable to them on account of such designation.
iii. They can be assigned any additional duty by the Competent Authority.
iv. The above-mentioned designation as Specialist-cum Assistant Professor is applicable only at present place of posting and such designation will stand withdrawn on transfer to other ESI Hospital.23
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14. These conditions clearly indicate that this order granting designation of Specialist cum Assistant professor to the applicant did not imply any change of cadre of the applicant from the cadre of Specialist to the cadre of a Teaching Faculty in the ESIC.
15. The Teaching faculty in the ESIC is governed under its own Recruitment Regulations titled ESIC (Medical Teaching Faculty Post) Recruitment Regulations, 2015. A perusal of these regulations, governing the teaching posts, indicates that the teaching cadre in ESIC consists of the following Posts: Assistant Professor, Level-11, Associate Professor, Level-12, Professor, Level-13 and Director Professor, Level-14.
16. Hence, the posts in Teaching Cadre in the ESIC are distinct and different from the posts in the Specialist Cadre. There is no provision under these regulations for any person to hold the post in both the cadres simultaneously. A person can either belong to the Specialist cadre or to the Teaching cadre. There is also no provision for lateral movement from one cadre to another cadre in these rules. Appointment to any post, is governed only by the Recruitment Regulations pertaining to the concerned cadre.
17. The Post Graduate Medical Education (Amendment) Regulations 2005 under which some of the Specialist working in Specialist cadre were allowed to have a joint designation of Specialist-cum-Assistant Professor is only a special regulation. It has been clearly stated that these special provisions are only to meet the temporary shortages if any, in the teaching cadre of a teaching institution and cannot be a ground to claim a lateral entry from the Specialist cadre to the Teaching cadre.
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18. The issue of designation of Consultants and Specialists, as Assistant Professors/Associate Professors/ Professors was examined in detail by The Division Bench of the Hon'ble Delhi High Court in W.P.(C) No.7049/2005 Faculty Association Maulana Azad Medical College Vs. UOI & Ors. In this case, the Delhi High Court, in a detailed order held as follows:
(i) Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 treats Consultants or Specialists having the requisite experience not attached to medical colleges but post-
graduate institutions covered by Sub- Regulation 1A to Regulation 8 as Professors, Associate Professors and Assistant Professors. The petitioners are unable to establish and show that clause (d) to Regulation 11.1 is illegal or bad in law. On the other hand, the respondents have been able to show and establish the reason and cause why the aforesaid clause was enacted by the MCI. The object and purpose were to allow and permit post-graduate courses already in existence should not close down and stop pursuant to the promulgation of PGME Regulations, 2000.
(ii) Clause (d) of Regulation 11.1 of the PGME Regulations, 2000 is not in conflict with the CHS Rules in any manner. 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 CHS Rules operate in different fields 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. 25
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(iii) Clause (d) to Regulation 11.1 of the PGME Regulations, 2000 does not postulate one-time exception and there can be subsequent designations as long as there is a shortage of Professors, Associate Professors or Assistant Professors belonging to the teaching sub- cadres.
(iv) Designations for the purpose of clause (d) to Regulation 11.1 of the PGME Regulations, 2000 can be only awarded to Consultants and Specialists who fulfil the minimum requirement for imparting post-graduate medical education to the sanctioned annual intake in the respective government institutions/ hospitals and cannot exceed the said numbers. Violation of the proviso and the question whether there are excessive designations has not been raised and argued before us. The petitioners have stated that this is not a subject matter of the present writ petition and has been raised in other writ petition pending in the High Court. We have, therefore, not examined the factual matrix and the question whether there has been a violation of the proviso to Regulation 11.1(d) of the PGME Regulations, 2000.
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 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- 26
OA.No.245/20220/CAT/Bangalore Bench 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. 27
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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 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, 28 OA.No.245/20220/CAT/Bangalore Bench 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.
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 29 OA.No.245/20220/CAT/Bangalore Bench 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.
30. Keeping the above points in view, the OA is partly allowed with the following directions:
a) The process of selection of Associate Professor Microbiology on contract basis for a period of one year, through a "walk in interview"
to be held on 18.05.2020 as advertised by the respondents vide Annexure-A1 on 4.5.2020, so far as the applicant is concerned, was stayed by this Tribunal vide its orders dated 19.05.2020. This process has now become infructuous with the flux of time. Hence, the relief sought by the applicant seeking quashing of the "walk in interview" for the post of Associate Professor Microbiology advertised on 4.05.2020 is of no relevance at this stage.30
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b) The respondents are free to initiate and complete the process of filling up the vacancy of Associate Professor (Microbiology), if any, in the ESIC & PGIMSR Medical College, Rajajinagar, Bangalore as per the existing provisions contained in ESIC (Medical Teaching Faculty Post) Recruitment Regulations, 2015 as amended from time to time.
c) The representations of the applicant seeking for her designation as Specialist cum Associate Professor in Microbiology as prescribed under clause 11.1 (d) of PGME Regulation 2000, may be considered by the respondents keeping in view the administrative exigencies including existing vacancies, if any, as well as her eligibility in terms of experience and educational qualifications as prescribed under the clause 11.1 (d) of PGME Regulation 2000.
31. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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