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III. The Hon'ble Tribunal may be pleased to issue an order or direction which may be deemed fit and proper under the facts and circumstances of the case.

IV. Cost of the Original Application may also be awarded in favour of the applicants."

2. The case of the first applicant is that he is presently working as Chief Medical Officer in ESIC Model Hospital, Jaipur and most of the other applicants are also working in the said Hospital and they were absorbed to ESIC service and released by State Govt. on 30.10.2009. While working in ESIC on deputation, the terms of absorption were circulated vide letter dated 03.06.2005. The applicants submitted their option for institutional seniority on OA No. 291/345/2018 23.01.2007 and subsequently a letter dated 11/12.07.2011 was issued for consideration of cases of such absorbees under the Dynamic Assured Career Progression (DACP) Scheme for which their APARs were to be obtained from the State Government. Since ACP was to be granted by ESIC under the DACP Scheme which was introduced on 29.10.2008, again an undertaking was sought from the applicants that they are ready to surrender all benefits of promotion/ financial upgradation under the State ACP granted by State Govt. from 01.01.2006 to 30.10.2009 on absorption under ESIC w.e.f. 01.01.2006. Accordingly, undertakings were submitted as desired vide ESIC letter dated 11.12/07.2011 with a request for promotion and DACP Scheme on implementation of the Scheme so as to provide benefits of the DACP Scheme as per OMs dated 29.10.2008 and 21.07.2009. The respondents vide letter dated 11.12.2015 replied that the employees were absorbed in ESIC Hospital w.e.f. 01.01.2006 as per the terms of absorption, option was provided to opt institutional or All India seniority and they were entitled for promotion in Grade Pay of Rs. 7600/- and promotion on higher post was only on the basis of All India OA No. 291/345/2018 seniority which was not acceptable to the applicants as they had opted for Institutional seniority. Accordingly, applicants had earlier preferred OAs and in pursuance of the same, they had preferred representation which was rejected vide order dated 1.11.2017, wherein the benefits under the DACP Scheme which were only non-functional financial upgradation of financial nature were denied to the applicants. The respondents thereafter issued the said orders vide letter dated 15.03.2018 (Annexure A/1) and letter dated 22.06.2018 (Annexure A/2) which are challenged by the applicants in the present O.A. as the benefits of DACP Scheme are wrongly denied to them.

3. The respondents after issue of notices filed their reply raising preliminary objection that the applicants have not exhausted remedies as per Section 21 of the Administrative Tribunals Act, 1985 as they should have represented to ESI Corporation as per letter of HQ dated 06.08.2018 for alternate solution of repatriation to State Govt. before approaching this Tribunal. Besides this, the respondents stated that the representations of the applicants were rejected by the OA No. 291/345/2018 respondents by which the benefits of the DACP Scheme provided under the OM dated 29.10.2008 and 21.07.2009 have been denied to the applicants. However, the applicants have challenged the office letter dated 22.06.2018 with regard to the issue of grant of Non Functional Selection Grade (NFSG)/SAG (Senior Administrative Grade) scales under the DACP Scheme to absorbee doctors posted at ESIC Model Hospital Jaipur having opted for institutional seniority. However, the ESI Corporation under the Chairmanship of Hon'ble Minister of Labour & Employment, Government of India in its 174th meeting held on 29.05.2018, had considered an Agenda and Condition/Item No. ESIC-4 states that "All India Seniority of various State Govt. medical officers absorbed in ESIC on takeover of hospitals for maintaining equality and uniformity among medical officers working in ESIC and also paving way for eligibility of all absorbed doctors for grant of NFSC/SAG Scale under the DACP Scheme by maintaining the All India seniority". Thus, as the decision has been taken in the said meeting in public interest, the present applicants are not entitled for the benefits under the DACP Scheme. Also the applicants OA No. 291/345/2018 had submitted their options for institutional seniority on 23.01.2007 in pursuance of the draft terms of absorption dated 03.06.2005 which was subsequently approved by the Department of Labour & Employment vide office letter dated 16.10.2006 and, accordingly, the absorbed doctors of the Model Hospital, Jaipur had submitted their options for institutional seniority. As per their options, the absorbees are only eligible for promotions upto the level of CMO (Grade Pay Rs. 7600/- as per 6th CPC) as the promotions upto this level were time scale promotions and were absolutely delinked with the vacancies. On the other hand, the absorbed Medical officers, who opted for All India seniority, were liable to be transferred on All India basis but were eligible for promotional posts beyond the level of CMO (i.e. grades of NFSG & SAG) against the promotional vacancies across the country. It is further stated that placement in Institutional seniority and grant of NFSG & SAG scales cannot go side by side as per approved terms and conditions of absorption and, therefore, the present applicants are deprived from promotions of NFSG & SAG grades. Hence, the present O.A. is liable to be rejected as there is no substantial force in the OA No. 291/345/2018 submissions of the applicants in eyes of law. Therefore, respondents are justified in their action.

OA No. 291/345/2018

10. The facts as seen are that the applicants were earlier working as Medical Officers (MOs) with the State Govt. and later on they were absorbed in ESIC as on 30.10.2009. As per the terms of absorption dated 03.06.2005, the applicants had submitted their option for Institutional Seniority on 23.01.2007 and, accordingly, they had submitted undertaking to the Corporation. According to the said option, it was clear that the absorbed Medical Officers, who opted for Institutional/State Seniority, were to be posted in hospital only as per their options and, accordingly, they were eligible for promotions upto the level of CMO (Grade Pay Rs. 7600/- as per 6th CPC) because the promotions upto this level were time scale promotions absolutely delinked with the vacancies. On the other hand, those who had opted for All India Seniority, the absorbed Medical Officers were liable to be transferred on All India basis but were eligible for promotional posts beyond the level of CMO (i.e. to the grades of NFSG & SAG) against promotional vacancies across the country. But thereafter the Medical Officers who had accepted Institutional Seniority had made several representations for change of option as they had lost promotional avenues post implementation of OA No. 291/345/2018 DACP w.e.f. 01.03.2008. Accordingly, in the 174th meeting of ESIC under the Chairmanship of Hon'ble Minister of Labour & Employment, Government of India held on 29.05.2018 considered an Agenda, according to which it was decided, Item No. ESIC-4, that All India Seniority of various State Government Medical Officers absorbed in the ESIC on takeover of Hospitals for maintaining equality and uniformity among medical officers working in ESIC and also paving way for eligibility of all absorbed doctors for grant of NFSG/SAG scale under the DACP Scheme by maintaining the All India Seniority extended the benefits of DACP Scheme to all Medical Officers absorbed who opted for Institutional Seniority w.e.f. 01.06.2008. It was also observed that if any employee wants to be considered in Institutional seniority, the ESIC shall have no objection for their repatriation to the State Govt., if they permit so.