Central Administrative Tribunal - Ahmedabad
Paresh Bhavsar vs E.S.I.C on 29 March, 2022
:: 1 :: O.A./404/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.404/2018
Dated this the 29th day of March, 2022
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (Judicial)
Hon'ble Dr. A.K. Dubey, Member (Administrative)
1. Dr. Paresh Bhavasar,
General Duty Medical Office
53 years old, Male,
Occupation - Service,
Residing at 3, Vrishakapi Society,
Rajawadu Hotel, Malao, Jivraj Park,
Vejalpur, Ahmedabad - 380 051
2. Dr. Sachin Gandhi,
General Duty Medical Officer
44 years old, Male,Occupation - Service,
Residing at M/24, Manavmandir Flat,
Maninagar, Ahmedabad - 380 008
3. Dr. Paresh Acharya,
General Duty Medical Officer
45 years Old, Male, Occupation - Service,
Residing at A11, First Floor, Abhimanyu Apartments,
Shastrinagar, Naranpura, Ahmedabad - 380 013
4. Dr. Kamlesh B. Saini,
General Duty Medical Officer
46 years old, Male,
Occupation - Service, Residing at 14 Subhvill - 2,
Opp. Pleasure Club, Near Navneet Press Railway Crossing,
Ghuma, Ahmedabad - 380 058
5. Dr. Jitendra Parmar,
General Duty Medical Officer
39 years old, Male,
Occupation - Service, Residing at F - 45, Shaktikrupa
Twin Bungalows, Near Sneh Plaza, I.O.C. Road,
Chandkheda,Ahmedabad - 382424
:: 2 :: O.A./404/2018
6. Dr. Jignesh Desai,
General Duty Medical Officer
46 years old, Male,
Occupation - Service,
Residing at 18 Sarthi Bungalow, Near Satyamev Hospital,
Chandkheda, Ahmedabad - 382 424.
7. Dr. Himmatdan H. Zula,
General Duty Medical Officer
52 years old, Male,
Occupation - Service,
Residing at G - 8, Sthapaty Apartment,
Behind Sterling Hospital,
Gurukul Road, Memnagar, Ahmedabad - 380 052.
8. Dr. Dharmesh Vinodchandra Panchal,
General Duty Medical Officer
43 years old, Male,
Occupation - Service,
Residing at B - 9 Akshardham Flats,
Judges' Bungalow Road,
Bodakdev, Ahmedabad - 380 054.
9. Dr. Faruk I. Mansuri,
General Duty Medical Officer
42 years old, Male,
Occupation - Service, Residing at 47, Classic Park,
Near Prachina Society, Juhapura, Ahmedabad - 380 055
10. Dr. Sunita Bhalakiya,
General Duty Medical Officer
51 years old, Female, Occupation - Service,
Residing at D - 5, Mansarovar Duplex,
Behind Railway Station,
Maninagar, Ahmedabad - 380 008
11. Dr. Pratima Ajay Chauhan,
General Duty Medical Officer
44 years old, Female, Occupation - Service,
Residing at A - 504, Surbhi Apartment,
Opp. Police Stadium, Shahibaug, Ahmedabad - 380 004
12. Dr. Manpreetben Gill,
General Duty Medical Officer
:: 3 :: O.A./404/2018
55 years old, Female, Occupation - Service,
Residing at 13, Sector - D1, Opp. Narayan Park Society,
Sterling City, Bopal, Ahmedabad - 380058
13. Dr. Hema Arun Sheth,
General Duty Medical Officer
61 years old, Female,
Occupation - Service,
Residing at 14 Swagat Park Society,
Behind Zydus Hospital, Nr. Apsopalav Bungalows,
Thaltej, Ahmedabad - 380059
14. Dr. Harshidaben Vakil
General Duty Medical Officer
55 years old, Female,
Occupation - Service,
Residing at A/2, Hariharanand Tenament,
Near Rajwadu, Malav Talav, Jivraj Park,
Ahmedabad - 380 051
15. Dr. Biren Avnishkuar Fadia,
General Duty Medical Officer
47 years old, Male,
Occupation - Service,
Residing at D - 5 Ramtirth Society,
Near Malav Talav, Jivrajpark, Ahmedabad - 380051
16. Dr. Bipin Parmar,
General Duty Medical Officer
51 years old, Male, Occupation - Service,
Residing at 23, Saundrya Park Society,
Seonnagar - Khokhra, Memnagar - East,
Ahmedabad - 380 008
17. Dr. Binaben Kothari,
Pathologist (Junior Doctor)
53 Years old, Female,
Occupation - Service,
Residing at I - 504, Perishkar - 1,
Near Khokhra Circle, Maninagar East, Ahmedabad - 380 008
18. Dr. Samir R. Mehta,
Gynecologist, Class - I,
44 Years old, Male,
:: 4 :: O.A./404/2018
Occupation - Service,
Residing at 4 Favourite Society,
Near Swastik School, Nava Vadaj, Ahmedabad - 380013.
19. Dr. Shobhana Yogindra Upadhyay,
Anesthetist, Class - I
61 Years old, Female
Occupation - Service,
Residing at 18 Shrinath Society, Behind Bank of Baroda,
Ashram Road, Usmanpura, Ahmedabad - 380 013.
20. Dr. Sunil Manilal Borisa,
ENT Specialist, Class - I,
45 Years old, Male,
Occupation - Service,
Residing at 12, Devrath Bungalows,
Near C.G. Road, Chandkheda, Ahmedabad - 382 424.
21. Dr. Sudipti Sinha,
Pediatrician, Class - I,
54 Years old, Female,
Occupation - Service,
Residing at 52 - A Swagat Bungalow - II
Koteshwar Road, Motera, Ahmedabad - 380 005.
22. Dr. Chitra Milind Prakashkar,
Pediatrician class - I,
51 Years old, Female,
Occupation - Service,
Residing at 11 Madhyamvarg Society,
Bhulabhai Park, Gitamandir Road,
Ahmedabaad - 380022.
23. Dr. Hansa Vinod Patel,
Anesthetist, Class - I
61 Years old, Female,
Occupation - Service,
Residing at 12 Glorious House,
Behind Doctoor House, Ambavadi, Ahmedabad - 380006
...Applicants
(By Advocate Mr. D P Joshi)
Versus
:: 5 :: O.A./404/2018
1. Union of India,
(Notice to be served through its Secretary
to the Govt. of India, Ministry of Labour & Employment,
Govt. of India, Panchdeep Bhawan,
Comrade Indrajeet Gupta Marg, New Delhi - 110 002.)
2. The Insurance Medical Commissioner,
Employees State Insurance Corporation
Head Quarter Office, Panchdeep Bhawan,
Comrade Indrajeet Gupta Marg, New Delhi - 110 002.
3. State of Gujarat,
Notice to be served through
The Secretary,
Health & Family Welfare Department,
Having its office at New Sachivalaya, Gandhinagar - 382 010.
4. Joint Director,
Model Hospital,
Employees State Insurance Corporation
Bapunagar, Ahmedabad - 380 024
5. Director General,
Employees State Insurance Corporation
Head Quarter Office, Panchdeep Bhawan,
Comrade Indrajeet Gupta Marg, New Delhi - 110 002.
...Respondents
(By Advocate Mr. Joy Mathew)
ORDER (ORAL)
Per:Hon'ble Shri Jayesh V Bhairavia, Member (J)
1. The applicants herein, working as Doctors / Medical Officers at ESIC Hospital, Ahmedabad, Gujarat. Aggrieved and dissatisfied with the letter dated 23.07.2018 (Annex.A/1) whereby the Headquarter ESIC, New Delhi directed the Medical Superintendent, ESIC Model Hospital including the ESIC Hospital, Bapunagar, Ahmedabad that as per the approval of the Corporation (i.e., ESIC) all the Medical Officer absorbed shall be placed under All India Seniority and their promotion up to CMO / NFSG shall be done as per their eligibility and directed to :: 6 :: O.A./404/2018 send all service details for maintaining the seniority list and initiation of their DPC as per their eligibility, the applicants have filed the present OA under Section 19 of the AT Act seeking following reliefs :-
' A. Admit/allow the present application.
B. Quash and set aside the letter/decision dated 23.07.2018 issued by Dy.
Director (MED.INT.CELL) of Employees State Insurance Corporation (Ministry of Labour & Employment, Government of India) and the same communication be held illegal, unjust and improper.
C. The respondent authorities be directed to implement the terms and conditions mentioned in the draft memorandum dated 24.02.2006 and the Employees State Insurance Corporation be fastened with the same responsibility.
D. Grant such further and other relief/s as may be deemed fit and proper in the peculiar facts & circumstances of the present case."
2. The facts of the case in brief are as follows:-
2.1 All the applicants (Doctors) herein were selected through Gujarat Public Service Commission ("GPSC" for short) and were appointed as Doctors / Medical Officers and posted at Bapunagar General Hospital which was initially controlled / run by the State of Gujarat as per Employee State Insurance Scheme.
2.2 In the month of June, 2005, the Director General in the O/o Medical Superintendent, ESIC Hospital, Bapunagar, informed and declared in the meeting that the entire hospital was to be taken over by ESIC Corporation to be named as Model Hospital.
Thereafter, vide communication No. V37(18)1/03-Med.IV dated 24.02.2006 (Annex. a/5), the Medical Commissioner, ESIC, New Delhi, forwarded a copy of the draft terms and conditions for absorption of the State Government employees working on deputation in the ESIC Model Hospital to the Secretary Health Department, Government of Gujarat and informed that it was proposed to absorb such employees in the Corporation on their resignation from State Government Service and acceptance of the same by the State Government and subject to State Government and employees concerned accepting the terms of absorption. It was further requested to convey the acceptance of these :: 7 :: O.A./404/2018 terms within three months and if within the said time limit, nothing was communicated, it would be presumed that the doctors & staff were in agreement with the proposed terms (Annexs. A/5 & A/6).
The condition no.4 of the said draft Terms and Conditions (T&C) prescribed the terms to determine the seniority of an employee absorbed in the Corporation which reads as under:-
Condition No.4:-
"Seniority of an employee absorbed in the Corporation will be determined either from the date from which one holds the post on deputation or from the date one hold the post in equivalent grade on regular basis in the State Government Service, whichever is earlier. Seniority of two or more State Government employees absorbed in the Corporation Service would however, be fixed as per the seniority existing in the State Government prior to their absorption. Before absorption an employee will be free to opt for separate Institutional seniority, i.e., seniority only for the particular hospital. In this case they will not be transferred outside the hospital even after absorption and the promotions will be based on the Institutional seniority only subject to the vacancy in the hospital OR the individuals can also opt. to be part of All India seniority, in which case they will be liable for all India transfer and all India promotional avenues. If opting for Institutional seniority, the all India posts and cadres to which they will not be eligible for promotion will be the Medical Superintendent of the Hospital and all officers in the pay scale of Rs.14300- 18300 (current NFSG Scale)."
2.3 In response to aforesaid terms and condition for absorption in ESIC, the applicants herein had submitted their options to the effect that they were willing to leave their employment with the State Government and had given option for their separate Institutional seniority as per the condition no.4 stipulated in the letter dated 24.02.2006. In this regard, the applicants have produced their copy of options (Annex.A/8 Colly). 2.4 The Joint Secretary to Government, Health & family Welfare Department State of Gujarat vide his letter dated 08.09.2008 (Annex.A/10) informed the Director General, ESIC, New Delhi that the State Government agreed to the terms and conditions mentioned in the letter dated 24.02.2006 and requested to take further action in the matter.
2.5 Thereafter, O/o the Medical Superintendent, Model Hospital, Bapunagar, Ahmedabad vide its Memorandum dated 16/19.09.2011 (Annex. A/9)informed all the concerned which included applicants herein, that the ESIC Headquarter, New Delhi had approved the absorption w.e.f. 01.01.2006 (AnnexA/9) on the conditions as :: 8 :: O.A./404/2018 mentioned at No. 1 to 10 and directed to submit their consent / undertaking to the said conditions latest by 30.09.2011. 2.6 Thereafter, vide Memorandum dated 06.08.2013 (Annex. A/7), the Deputy Director, Model Hospital, ESIC, Bapunagar, Ahmedabad circulated the provisional seniority list of absorbed IMO Gr.II including the list of State Government employee absorbed in ESIC Corporation w.e.f. 01.01.2006.
2.7 Subsequently, vide Resolution No.KRV-102017-561-CH dated 27/29.04.2017 (Annex. A/11), the Health & Family Welfare Department, Govt. of Gujarat, decided to relieve officers / employees w.e.f. 31.12.2005 for their absorption in Model Hospital, Bapunagar at Ahmedabad operating under ESIC, Govt. of India.
2.8 The applicants had given their options for Institutional seniority as provided in the terms and conditions for absorptions in ESIC. However, the applicants were neither aware at all nor informed at any point of time that they would not be given Institutional seniority. The applicants herein came to know that the ESIC Headquarters vide impugned letter dated 23.07.2018(Annex. A/1) issued on the basis of the decision in the 174th meeting of ESIC Corporation, had decided that the Medical Officers which included the applicants who were absorbed on the conditions institutional seniority had been placed under All India seniority and then their promotion would be on CMO/NSFG as per their eligibility. The applicants aver that the said impugned decision is in violation of Article 14, 16 of the Constitution of India as well contrary to the terms and conditions of absorption. Hence, this OA.
3. On receipt of the notice issued by this Tribunal, the Respondent-ESIC filed its reply and denied the claim of the applicants. It is submitted that the decision taken in 174th meeting of ESIC Corporation held on 31.05.2018 and the letter dated 23.07.2018 (Annex.A/1) (impugned herein) were in order and as per law. It is stated that the ESIC-HQ vide letter dated 24.06.2006 had sent draft of T&C of absorption of State Govt. employees to the Secretary, Health Dept., Govt. of Gujarat seeking their view and comments. In response, the State Govt. had agreed to said T&C as conveyed vide letter dated 08.09.2008.
:: 9 :: O.A./404/2018 3.1 It is also the fact that the applicants were absorbed in ESIC Corporation with an option of Institutional seniority by virtue of which they would not be transferred outside the institute, i.e., ESIC Model Hospital, Bapunagar and would not be eligible for promotion against vacancy of All India posts and Cadre.
3.2 It is stated that subsequently, multiple hospitals were taken over / established in several States and in this process the institutional seniority lost its sanctity as ESIC maintained All India Cadre for Medical Officers and consequent on taking over of more than one institution in one State, it has become imperative to maintain State seniority in order to follow the Article 14 and 16 of the Constitution of India. Due to differences in size of ESIC Hospitals in the State of Gujarat, the Cadre Structure in different units is also dissimilar. As a result, there are few promotional posts in some cadres which are available in bigger units only. In order to provide equal opportunity to the staff posted in the region, it is mandatory to maintain State seniority to provide equal promotional avenues on the basis of seniority, to the staff in feeder cadres of such posts.
3.3 There were 184 Medical Officers who had opted for institutional seniority. Out of them, many MOs requested through representation to change their options as they were keen for promotional avenue posts as per implementation of DACP w.e.f. 01.03.2008. Placement in institutional seniority and grant of NFSG and SAG scales cannot go side by side as per approved terms and conditions. Therefore, they were deprived of the promotion. In this way, the term was obstructing the principle of equality and uniformity in the organization, besides simultaneously restricting the promotion of absorbed staff. Under the circumstances, the respondent ESI Corporation in its 174th Meeting dated 29.05.2018 had approved to place all the absorbed Medical Officers in All India seniority who were previously placed in institutional seniority in the larger interest. Further, it is also approved that in case, any representations received by any absorbed staff to still consider them in institutional seniority, the Corporation should have no :: 10 :: O.A./404/2018 objection for their repatriation to their parent State cadre, if the respective State Govt. permitted so.
3.4 The respondent further submits that the Hon'ble Apex Court in the case of Union Public Service Commission (UPSC) Vs. Girish Jayantilal Vaghela held "that once the person appointed to his post of office, the Government servant acquires a status and its rights and obligation are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government".
3.5 It is submitted that as per Sub-section (1) of Section 97 of ESIC Act, 1948 read with Clause (21) of Sub-section (2) and (2A), the ESI Corporation has power to make a method of recruitment, pay and allowances etc. and other conditions of service of the officers and servants of the Corporation other than the Director General and the Financial Commissioner. Therefore, the ESI Corporation has every right to change the terms and conditions unilaterally. Under the circumstances, the applicants are not entitled to any relief as sought in this OA.
4. The applicants have filed their rejoinder and reiterated their claim by denying the submission of the respondent. The respondent cannot have the unilateral power to subvert the T&C of absorption thereby unilaterally repudiate the conditions of absorption, particularly the condition about ensuring institutional seniority. It is contended that applicants were regularly appointed employees of the State Govt. and based on the said fact, the ESIC had absorbed the applicants herein on the basis of terms and conditions dated 24.02.2006 (Annex. A/5) for the said absorption. Since the very basis of absorption was the condition of institutional seniority, the applicants are entitled to institutional seniority, they contend.
5. During the pendency of this OA, the applicants filed the MA No.15/2021 stating therein that the respondent vide its office order No. 22/2020 dated 04.12.2020, (Annex.MA/1) and Office Order No.23/2020 of the same date 04.12.2020 (Annex.MA/2) issued promotion order under DACP Scheme which included the name of :: 11 :: O.A./404/2018 applicants and thereby the present applicants were compelled to forgo their Institutional seniority. The said promotional order has been forced upon the applicants to accept the All India Seniority which subjects them to transfer outside the institution. Therefore, applicants sought urgent hearing of the OA. The said MA was allowed and case was taken up for final hearing.
6. During the hearing, Ld. Counsel for the applicants placed on record the copy of common order dated 04.03.2021 as passed by the Jaipur Bench of this Tribunal in OA No.763/2019 and other connected OAs (Smt. Sylvia Saroj Vs. UOI, through the Secretary, Ministry of Dept. Labour and Employment, New Delhi) and submitted that in the said case identical issue had been decided and the arbitrary decision of ESIC to change the Terms & Conditions of absorption had been quashed and set aside. It is submitted that the said judgment is squarely applicable in the facts and circumstances of the present case.
7. On the other hand, Mr. Joy Mathew, Learned counsel for the respondent submits that the respondent-ESIC has challenged the order passed by Jaipur Bench before the Hon'ble High Court of Rajasthan and the said Writ Petitions are pending. He fairly accepted that till date, no interim order or relief had been granted in the said Petitions.
8. Heard the counsel for the parties at length and perused the material on record.
9. At the outset, it is not in dispute that in identical case the Jaipur Bench of this Tribunal while deciding the challenge with respect to change of Terms and Conditions of absorption, of the since absorbed employees since absorbed in ESIC, the Tribunal had referred the condition nos.3 & 4 as the same had been referred in the present case, the Tripartite Agreement entered between State of Rajasthan, ESIC and employees including the fact that the applicants therein had exercised their option and in lieu of acceptance of Institutional seniority they had given up their chances of promotion at All India level, the Tribunal held that "
the respondent ESI Corporation in their 174th meeting without intimation to the said applicants decided to place them (the applicants therein) in State seniority of respective States by ignoring the fact that :: 12 :: O.A./404/2018 they were absorbed only after they tendered the resignation from service of State Government and in fact no lien of the applicants lay with State Government. It was agreed between the parties that on absorption in the Corporation, the applicants' lien would be forfeited and they would be able to opt for institutional seniority. Once the said Terms and conditions are agreed between the parties, the Corporation cannot unilaterally transfer the employee stating that they have a right to alter the Rules unilaterally without the consent of the parties. By referring to the law laid down by Hon'ble Apex Court in the case of Anil Bajaj (Dr.) Vs. Post Graduate Institute of Medical & Research & Anr. that the principle of estoppel arises only when a lawful promise was made and acted upon to one's detriment, the party making the promise is stopped in law to resile from the promise. Further, the judgment passed in the case of State of Jharkhand & Ors. Vs. Brahmputra Metallics Ltd., Ranchi & Anr. decided on 01.10.2020, the Hon'ble Apex Court had given an expansive interpretation on the doctrine of promissory estoppel in order to remedy the injustice being done to a party who had relied on a promise." Accordingly by denying the justification of ESIC, the Tribunal quashed and set aside the impugned order of change of Institutional seniority into State seniority and the transfer order.
10. In our considered view, the aforesaid order passed by Jaipur Bench of this Tribunal is squarely applicable to the case at hand.
11. In the present case, undisputedly, the applicants herein were absorbed by ESIC only after they had submitted their option as per the terms and conditions stipulated in order dated 24.02.2006. In our considered view, subsequent unilateral change to the said conditions as decided by the respondent, is not tenable in the light of Hon'ble Apex Courts' interpretation on the doctrine of promissory estoppel and also in view of the order passed in identical case that too in a similarly placed employee of ESIC by Jaipur Bench of this Tribunal (Supra). Accordingly, we quashed and set aside the impugned decision of the respondent in letter dated 23/07/2018 (Annex. A/1) placing those absorbed Medical Officers under All India seniority who had earlier opted for institutional seniority and grant of promotion qua the applicants as the same is :: 13 :: O.A./404/2018 illegal, arbitrary and bad in law being against the terms of absorption stipulated in the Draft terms of absorption No. A37(18)1/03/Med.IV dated 03/06/2005 (Annex. A/6) which was communicated to the Secretary, Health Department, Government of Gujarat vide communication dated 24.02.2006 (Annex. A/5). The respondents are directed to adhere to the terms and conditions mentioned in the Memorandum dated 24.02.2006 in the case of applicants herein, keeping particularly in view the fact that the terms of service agreed at the time of absorption should not be changed or modified to the disadvantage of detriment of the applicants.
12. In view of above, the present OA stands disposed of. No order as to cost.
(Dr A K Dubey) (Jayesh V Bhairavia)
Member(A) Member(J)
JRM/PA