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2. The facts as projected in the Application for the relief indicated above would need a necessary mention. The same, culled out from the Application, would reveal that the applicants were appointed in ESIC between 1995 and 1996. It is their case that their recruitment into service was done vide open ESIC advertisement dated 8.10.1994. They had to undergo interview and later medical fitness test. Qualifications and experience required were similar to those required for analogous posts in Central Health Service (CHS). The first applicant has worked in three ESIC hospitals till date, and is presently working at ESI Hospital, Okhla Industrial Area, Phase-I, New Delhi as Specialist Grade-I and HOD (Department of Pediatrics). He was designated as Specialist Grade-I and HOD (Pediatrics) following his promotion vide office order No.250 of 2006 dated 17.8.2007, and is now drawing pay scale of Rs.14300-18300 + NPA. Present grievance of the applicant stems from this office order against which he made representation to Director General on 7.9.2008, requesting to rectify the date of promotion so as to make it on completion of six years instead of eight years of service, as per DACP scheme, and accord pay fixation under FR 22 (I) (a) (1) instead of FR 22 (I) (a) (2). The applicant claims that the first issue pertains to the date of promotion, which should be 5.4.2002 instead of 25.1.2004. It is the case of the applicants that Dynamic Assured Career Progression (DACP) Scheme provides for promotion to specialist Grade-I after six years of regular service as Specialist Grade-II level, and that this was the recommendation of the 5th Central Pay Commission (CPC) which was accepted by the Central Government vide letter dated 5.4.2002 addressed to all participating units of Central Health Service including ESIC. The DACP scheme is stated to have been recently approved by the Union Ministry of Labour and Employment in respect of ESIC doctors on the directions of this Tribunal in OA No.1036/2007. The second issue pertains to pay fixation under FR 22 (I) (a) (1) instead of FR 22 (I) (a) (2), for the reason that the word Dynamic in DACP scheme is referred to as promotion with financial upgradation and not placement, as referred to in the impugned order No.250 of 2006, and secondly, because in respect of the applicants immediate senior batch of Specialists, pay fixation was done under FR 22 (I) (a) (1) vide ESIC order No.93 of 2003 dated 22.5.2003. Further, the office of Specialist Grade-I involves duties and responsibilities of greater importance, and the applicants are now officially designated as HOD. The applicants may be posted as Medical Superintendent of small hospitals at this level, such as ESI Hospital at Rohini, Delhi or ESI Hospital at Chandigarh. Still further, the applicants do not expect any other promotion in their whole service career as in the case of other Specialists in the cadre. It is averred that the maximum a Specialist can attain is the Senior Administrative Grade in ESIC, which is limited to four posts for the whole cadre. It is the case of the applicants that DACP scheme of 5th CPC as applicable to them was accepted by the Government of India vide letter dated 5.4.2002 to be implemented in all participating units of Central Health Service including ESIC, and that the matter was considered in the Union Ministry of Health and Family Welfare in consultation with other Ministries, and it was done after taking approval of the committee of Secretaries and concurrence of Ministry of Finance vide UO dated 26.3.2002. It is further the case of the applicants that on the directions of this Tribunal vide order dated 31.1.2008 in OA No.1036/2007, Ministry of Labour and Employment has approved the DACP scheme for doctors of ESIC on the pattern being followed in Central Health Service, and yet the ESIC in its order dated 19.3.2008 has now denied the benefit of DACP scheme to the applicants by applying it prospectively from 1.3.2008.

4. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing their reply, contested the cause of the applicants. It has inter alia been pleaded in the reply that appointment of the applicants has been made as per recruitment regulations of the ESIC. It is denied that the DACP scheme has been approved by the Union Ministry of Labour and Employment for ESIC doctors on the basis of any directions issued by this Tribunal, and that the Tribunal vide order dated 31.1.2008 had only directed the Ministry to take final decision on the proposal sent by ESIC within a period of two months. It is pleaded that merely because the DACP scheme providing for promotion to Specialist Grade-II was accepted by the Government vide letter dated 5.4.2002, it cannot imply that the same had to be implemented in ESIC also with effect from the same date. It is denied that ESIC was a participating unit in that scheme. The promotions in ESIC are stated to be granted on the basis of recruitment regulations for the relevant posts as notified by ESIC in the final gazette and as amended from time to time as existing on the date of the DPC. Since promotion to the Grade is time bound and in situ pay fixation is allowed under FR 22 (I) (a) (2), it is admitted that pay fixation of Specialist Grade-I under FR 22 (I) (a) (1) vide order dated 22.5.2003 was an administrative lapse and that no pay fixation has been allowed under FR 22 (I) (a) (1) thereafter. Insofar as, order dated 31.1.2008 passed by this Tribunal is concerned, it is urged that the applicants are misinterpreting the same. It is denied that the DACP scheme of 5th CPC was automatically applicable to the applicants or that ESIC is a participating unit. It is pleaded that as per proviso to Section 17(2)(a) of the Act of 1948 and regulation 24 of the Regulations of 1959, the ESIC can make a departure or exception with approval of the Central Government, and, therefore, in the present case the ESIC got approval of the Central Government for full extension of the DACP scheme to ESIC doctors on 17.3.2008 only, and that it is only on the basis of this approval that ESIC made a scheme applicable to its doctors w.e.f. 1.3.2008. It is then pleaded that in the past also while Specialist Grade-II (Senior Scale) under Ministry of Health & Family Welfare with four years of service were being considered for promotion to the post of Specialist Grade-I, the ESIC was allowing promotion to such Specialists with six years service as Specialist Grade-II (Senior Scale) strictly on the basis of recruitment regulations for the relevant post. The medical set up in ESIC is stated to be different than the one under Ministry of Health and Family Welfare, Government of India both in form of functioning as well as in the nature of duties and, therefore, necessary provisions have been made in the Regulations of 1959 from time to time, and further that even in the OM dated 14.11.2008 of the Ministry of Health and Family Welfare, implementing the Tikku Committee recommendations, other organizations like Railways, ESIC etc. have been allowed to examine the implementation of these recommendations as per recruitment of their particular organization.

In respect of all other matters relating to the conditions of service of employees, for which no provision or insufficient provision has been made in these regulations, the rules applicable from time to time to the corresponding category of Central Government servants shall apply, subject to such modifications and variations or exceptions, if any, as the Director General may, with the approval of the Standing Committee, by order from time to time, specify.

9. What clearly emerges from the provisions contained in Section 17(2) of the Act of 1948 and Regulations 7(1), 7(2) and 24 of the Regulations of 1959 is that insofar as the method of recruitment, salary and allowances, discipline and other conditions of service are concerned, the Corporation has to regulate the same in its Regulations. The Regulations of 1959, insofar as specific conditions of service are concerned, have since already been mentioned above. Regulations 7(1) and 7(2) do not deal with promotion, as is the case before us. Whatever is not provided specifically in Regulations 7(1) and 7(2), has been provided in Regulation 24. In the matter of promotion, thus it is the Regulation 24 which shall be applicable, as it specifically says that the same is in respect of all other matters relating to conditions of service of employees, for which no provision or insufficient provision has been made in the Regulations. It is true that with regard to matters relating to such conditions which have not been specifically provided in the Regulations, rules applicable from time to time to the corresponding category of Central Government servants shall apply, but the same would be subject to such modifications and variations or exceptions, if any, as the Director General may, with approval of the standing committee, by order from time to time, specify. The rules as applicable from time to time to the corresponding category of Central Government servants are not automatically applicable. The same are subject to such modifications and variations or exceptions, if any, as the Director General, with approval of standing committee, may specify from time to time. It is the positive case of the respondents that DACP scheme of the 5th CPC was not automatically applicable to the applicants or ESIC. It is also the case of the respondents that ESIC is not one of the participating units in the order dated 30.1.2008. In the instant case, ESIC has approval of the Central Government for extension of DACP scheme to its doctors on 17.3.2008 only. It is also the case of the respondents that it is only on the basis of this approval that ESIC made the scheme applicable to ESIC doctors w.e.f. 1.3.2008, which, during the course of arguments, we were informed, has been made applicable from 2004. In the past as well, while Specialist Grade-II (Senior Scale) under Ministry of Health & Family Welfare with four years service were being considered for promotion to the post of Specialist Grade-I, ESIC had been allowing promotion to such Specialists with six years service as Specialist Grade-II (Senior Scale), strictly on the basis of recruitment regulations for relevant posts.