Delhi High Court
Director General, E.S.I.C. vs Saurabh Kumar & Anr. on 24 July, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 22.07.2019
% Judgment delivered on: 24 .07.2019
+ W.P.(C) 2853/2015
DIRECTOR GENERAL, E.S.I.C. .......Petitioner
Through: Ms. Biji Rajesh and Mr. Diwankar
Sethi, Advocates for Mr. Gaurang
Kanth, Advocate
versus
SAURABH KUMAR & ANR ..... Respondents
Through: Mr. L.R. Khatana, Adv. for R-1.
Mr. Avadh Kaushik, Advocate for R-
3 to 7.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE A.K. CHAWLA
JUDGMENT
VIPIN SANGHI, J.
1. The Director General, Employee‟s State Insurance Corporation
(hereinafter referred to as „ESIC‟) has preferred the present writ petition to
assail the order dated 05.09.2014 passed by the Central Administrative
Tribunal, Principal Bench, New Delhi (the Tribunal) in O.A. No. 1427/
2012 preferred by respondent 1- Saurabh Kumar. The Tribunal has allowed
the said Original Application and directed the petitioner to prepare an All
India Seniority list of the Lower Division Clerk (LDC) cadre of the ESIC
and on the basis of the said seniority list, to give consequential benefits of
further promotion(s) to respondent 1 within three months from the date of
receipt of the copy of the order.
2. ESIC is a Statutory Body established under the Employee‟s State
Insurance Act, 1948 and Director General is its Chief Executive Officer. Its
Headquarter is in Delhi and it has offices in various other cities of the
country. The conditions of service of employees of the ESIC are governed
by ESIC (Staff and Conditions of Service) Regulations, 1959 which are
statutory in nature, as they have been framed in exercise of powers conferred
by Employees State Insurance Act, 1948. Some of the relevant provisions
contained in these Regulations are the following:
"2(d) "Director General" means the Director General of the
Corporation.
2(g) "Post" means a post under the Corporation and a post
shall be deemed to be post in Class I, Class II, Class III or
Class IV, according as such post is specified in /Class I, Class
II, Class II or Class IV in the First Schedule.
4. Appointing Authority - All appointments to posts shall be
made by the Director General:
Provided that the Standing Committee or the Director General
may, by general or special order, delegate to any other
authority or office to the Corporation, powers to make
appointments to any post or class of posts other than posts in
Class I and Class II."
3. ESIC has also framed the ESIC (Recruitment) Regulations, 1965 and
the ESIC (Lower Division Clerk/ Adrema Operator/ Telephone Operator/
Computer) Recruitment Regulations, 2006. ("ESIC LDC Recruitment
Regulations" for short)
4. Respondent No. 1 - an employee of ESIC, is working as an Upper
Division Clerk (UDC) in one of the regional offices of the ESIC, i.e. office
of Director (Medical) Delhi. Respondent No. 2 is also an employee of the
ESIC who is serving as an Assistant in the Northern Region of ESIC at
Rohini, Delhi. Respondent No.1 & 2 both participated in the same All-India
Competitive Examination of LDCs conducted by the petitioner ESIC in the
year 2000. In the said competitive examination, Respondent No.1 was
ranked No. 342, and Respondent No. 2 was ranked No. 690. Thus,
respondent No.1 was found more meritorious than respondent No.2. As
aforesaid, respondent No.1 joined the office of Director (Medical), Delhi,
whereas respondent No.2 joined Northern Region of ESIC at Rohini, New
Delhi. On the basis of their respective service and performance, they earned
promotion as UDC in their respective Regions after putting in the requisite
length of service; upon occurrence of vacancies, and; conduct of promotion
processes in UDC.
5. Respondent No.1 preferred the aforesaid Original Application,
impleading ESIC as respondent No.1 and Respondent No.2 herein - Shashi
Bhushan Kumar as respondent No.2 with the grievance that the cadre of
LDCs in the ESIC was a common cadre and a common seniority list ought
to be maintained in respect of all the Regions. He was aggrieved by the fact
that Respondent No. 2 in the Original Application stole a march over him
due to disregard of the inter-se merit position in the recruitment process. The
O.A. was earlier dismissed by the Tribunal vide its order dated 21.11.2013.
Subsequently, respondent No. 1 filed a Review Application No. 24/ 2014.
The Review Application was allowed by the Tribunal vide its order dated
09.07.2014, and the O.A. was restored for fresh hearing.
6. The O.A. has finally been allowed by the Tribunal by the impugned
order. Respondent Nos. 3 to 7 sought impleadment in the writ petition by
filing C.M. No. 23190/2016, which was allowed on 06.06.2016. They
support the cause of respondent No.1/ Original Applicant in the case.
Similarly, respondent No.8 was impleaded by this Court by allowing his
application i.e. C.M. No. 27272/2016 vide order dated 01.08.2016. He too
supports the cause of respondent No.1/ original applicant.
7. The case of the applicant/ respondent 1- Saurabh Kumar was that
there was only one cadre of LDCs in the ESIC, which had the sanctioned
strength of 2321 posts and there were no notified sub-cadres or regional
cadres. He claimed that since he ranked higher than Respondent No.2 in the
open competitive examination, he was entitled to rank senior to Respondent
No.2 in the seniority list of LDCs, and was entitled for consideration for
promotion to the post of UDC/ prior to those junior to him - such as,
Respondent No.2. However, he was not considered, and his seniority
disregarded. He claimed that the respondents- in not preparing a combined
All-India seniority list of the LDC cadre, and resorting to giving promotions
on the basis of local region- wise seniority, acted contrary to the Statutory
Rules and Regulations.
8. On the other hand, the petitioner- ESIC submitted that cadre of LDC
in ESIC is a decentralized cadre having Regional seniority. The respondent
sought to place reliance on the ESIC (Staff & Conditions of the service)
Regulations, 1959, as per which, the Appointing Authority in the case of
LDCs was not a common All-India authority, but the respective Regional
Directors/ Director (Medical) Delhi/ MS/ D(M) Noida/ JD-V Headquarters,
as the case may be.
9. The petitioner also contended that the Director (Medical) Delhi had,
on an earlier occasion, finalized the seniority list of LDCs in its Region on
26.04.2004 by circulating a provisional seniority list and inviting objections
thereon. Respondent 1 neither raised any objections, nor challenged the
same at that stage by contending that a common seniority list should be
prepared on All India basis. Thus, he accepted the seniority list drawn by the
Director (Medical) Delhi for LDCs in the said Region. On the basis of the
said seniority list, respondent 1 was promoted to the post of UDC in his turn.
Thus, it was not open to him to question the same after 8 years and, his O.A.
was liable to be dismissed as barred by limitation.
10. The Tribunal while allowing the Original Application held that the
Statutory Rules and Regulations hold supremacy over the executive
instructions. The Tribunal held that the Regulations provided for only one
combined cadre of LDC‟s. Even though, there had been a long standing
practice in the respondent‟s organization of having Regional cadre of LDC‟s
with different appointing authorities, the said practice was held to be not in
accordance with the Statutory Rules and Regulations. The Tribunal, thus,
held that the respondent- ESIC was duty bound to act in accordance with the
Statutory Rules, and further directed the petitioner to prepare an All-India
Seniority list of the cadre of Lower Division Clerks (LDCs) of the ESIC
and, on the basis of the said seniority list, to give consequential benefits of
further promotion(s) to respondent 1. The relevant extract from the
impugned order reads as follows:
"2. The contention of the applicant that Statutory Rules and
Regulations hold supremacy over Executive Instructions cannot
be disputed. From the facts presented above, it is quite obvious
that Regulations provided only for one Combined Cadre of
LDCs. Even then there has ben a long standing practice in the
respondents organization of having regional cadre of LDCs
with different appointing authorities. This practice is obviously
not in accordance with the Statutory Regulations. The Hon‟ble
Delhi Court judgment relied upon by the respondents is not of
any help to them because in that case the Recruitment Rules
permitted Zonal Cadre whereas, in the instant case Statutory
Rules provide only one All India Cadre. Thus, the practice
followed by the respondents in treating the LDCs cadre as
Regional Cadre is unsustainable being contrary to their
Statutory Regulations.
3. The respondents had argued that the applicant was
appointed on the basis of All India Exam and assigned to the
office of Director Medical Delhi. When provisional seniority
list of LDCs was circulated by Director Medical in the year
2004, he did not raise any objection. He also did not challenge
the final seniority that was issued in the same year. Therefore,
the applicant has no right to question this seniority now. The
applicant‟s counsel, on the other hand, argued that the
applicant never received the provisional seniority list that was
issued by Director Medical. Moreover, he argued that even if
this contention of the respondents is accepted, there cannot be
any estoppels against following Statutory Rules and
Regulations.
4. We have considered the arguments of both sides. In our
opinion, the argument of the applicant‟s counsel has merit. This
is because the respondents were duty bound to act in
accordance with the Statutory Rules and Regulations and there
cannot be estoppels against the same. In the case of
Commissioner of Income Tax, Calcutta vs. B.N. Bhatacharjee
and Another, AIR 1979 SC 1725, Hon‟ble Supreme Court
observed as follows:-
"The soul of estoppels is equity, not facility for
inequity. Nor is estoppel against statute
permissible because public policy animating a
statutory provision may then become the
casualty."
5. On the basis of above analysis, we are of the
view that this O.A. deserves to be allowed. The
respondents are directed to prepare a seniority list
of the LDC cadre in the light of observations made
above within a period of three months from the
date of receipt of a certified copy of this order.
They shall also consider applicant for promotion
in his turn as per his position in the seniority list.
No costs."
11. Thus, the question which falls for our consideration is whether the
ESIC LDC Recruitment Regulations provide for a unified cadre, or for
separate/ region-wise/ decentralized cadres of LDCs in the ESIC. If the
cadre of LDCs is unified on All-India basis, a common seniority list of the
said cadre would be required to be maintained for the purpose of
consideration of promotion to the posts of UDC. On the other hand, if there
was no single/ unified cadre of LDCs on All-India basis, separate Region-
wise seniority were rightly maintained for making promotions as UDC in
respect of the vacancies arising in the promotional posts, Region-wise.
12. To deal with issue, it would be appropriate to extract the relevant
Regulations contained in the ESIC LDC Recruitment Regulations notified
vide the Gazette of India Notification 12(11)-1/2002-Estt.I dated
13.03.2006:
"2) They shall come into force on the date of their
publication in the Official Gazette.
Number of post, classification and scale of pay: - The number
of posts, their classification and the scale of pay attached
thereto, shall be as specified in columns 2 to 4 of the Schedule
Annexed to these Regulations.
The method of recruitment, age limit, qualification, etc:- The
method of recruitment, age limit, qualifications and other
matters relating thereto shall be as specified in columns 5 to 14
of the said Schedule.
x x x x x x x x x x
The relevant extract of the Schedule reads as follows:
"SCHEDULE
Name of the Number of ...... Method of recruitment whether by
Post Post direct recruitment or by promotion or
by deputation/ absorption and
percentage of the posts to be filled by
various methods
Lower *2321 (2006) ...... (i) 75% by direct recruitment on the
Division basis of written competitive
Clerk/ Adrena *Subject to examination.
Operator/ variation (ii)(a) 10% by promotion on the basis
Telephone dependent of seniority subject to rejection of
Operator/ upon work unfit from Group D employees
computer load provided they have rendered five
years of regular service in the Group
D cadre and possess the minimum
qualification of Matriculation (10th
Standard pass) or equivalent.
(b) 15% by promotion through
Limited Departmental Competitive
Examination from among the Group
D employees. They should possess
minimum qualification of
Matriculation (10th Standard pass) or
equivalent and have rendered the
minimum service of two years in
Group „D‟ cadre on regular basis.
...... Departmental Promotion Committee exists,
what is its composition
....... Group „C‟ Departmental Promotion
Committee consisting of: Director (Medical)
Delhi/ Regional Director/ Joint Director
Incharge- Chairman Deputy Director/ Deputy
Director (Medical)/ Deputy Director
(General) Member
"
(emphasis supplied)
13. The submission of Ms. Biji Rajesh, learned counsel for the petitioner
is that the Tribunal has not applied its mind to the Statutory Regulations
placed before it. It has not considered the fact that the composition of
Department Promotions Committee (DPC) for the LDC cadre consists of
Director (Medical) Delhi/ Regional Director/ Joint Director Incharge-
Chairman Deputy Director/ Deputy Director (Medical)/ Deputy Director
(General) Member, as the case may be - and, thus, the DPC is constituted at
the Regional level, and not at an All India level. She further submits that
even as per the latest Recruitment Regulations for LDC and UDC cadre, the
DPC for LDC cadre, as well as DPC for UDC cadre is not constituted at All-
India level, but at Regional level only. In this regard, she places reliance on
the ESIC (Lower Division Clerk, Adrema Operator, Telephone Operator
and Computor Recruitment Regulations, 2011, issued vide Notification No.
A-12(11)/10/2000-E.I.(A) dated 14th November, 2011 and ESIC (Upper
Division Clerk or Upper Division Clerk- Cashier Recruitment Regulations,
2011, issued vide Notification No. A-12(11)/10/2000-E.I.(A) dated 14th
November, 2011.
14. She submits that the advertisement issued by ESIC invited
applications for recruitment of LDC/ stenographers against specified posts
which existed in particular States and Regions, and not on All-India basis.
The applications against the advertisement had to be submitted to the
concerned States and Regions in respect whereof the applicant/ candidate
desired to apply.
15. She further submits that the ESIC has always had separate sanctioned
strength of LDC‟s in separate States and Regions. In this regard, she referred
to the communication dated 08.08.2012 issued by the H.Q. Office, ESIC to
the Regional Director/ Director (Medical) Delhi/ Regional Office/ D(M)D,
showing the sanctioned strength of officers and staff in the ESIC in various
States. She further submits that the LDCs are not transferrable from one
State/Region to another State/ Region, as transfers are affected only upon
promotion at All-India level. In this regard, reference is made to the letter of
appointment dated 14.08.2003 issued to Respondent No.1/ Original
Applicant, wherein Clause „D‟ reads:
"D. He can be deployed in any unit of the Directorate
{Medical} Delhi i.e. Administration Unit, Employees State
Insurance Hospital and Employees State Insurance Pharmacy,
Delhi/ New Delhi and can be transferred anywhere in India on
promotion at the All India level." (emphasis supplied)
16. She submits that the Tribunal erred in upsetting the well settled
position with regard to the structure of the cadres of LDCs, UDCs and
Superintendents, which have always existed at Regional levels only, and
there is nothing in the Regulations to suggest that a unified Cadre of LDCs
existed, or that separate seniority in the said cadres could not be maintained
Region/ State wise. She placed reliance on the decisions in N. Suresh
Nathan and Anr. v. Union of India, AIR 1992 SC 564 and M.B. Joshi and
others v. Satish Kumar Pandey and ors, AIR 1993 SC 267 in support of her
submission.
17. On the other hand, Mr. Khatana, learned counsel for the respondent
No.1 and Mr. Avadh Kaushik, counsel for the respondent Nos. 3 to 7
supports the view of the Tribunal in the impugned judgment. He submits
that the ESIC LDC Recruitment Regulations show that there is only one
cadre of LDCs having a unified strength of 2321 posts at All India level. All
the appointments, to all posts in the ESIC, are made by the Director General.
He submits that the cadre of LDCs is not further sub-divided into sub-cadres
or regional cadres. Thus, the promotion of respondent 2 based on local
seniority is contrary to the statutory Rules and Regulations.
18. Mr. Khatana sought to place reliance on the appointment letter of
respondent No. 1, to argue that his terms and conditions of appointment
stipulated that he was liable to be transferred anywhere in India on
promotion at the All India level. Thus, he submitted that a single All-India
seniority list was required to be mandatorily prepared by the ESIC, and
promotions could not be given based on local/ regional seniority.
19. He further submitted that once the Employer frames statutory Rules/
Regulations pertaining to seniority and promotion, they are bound by the
said Rules and Regulations in respect of matters covered by the Rules/
Regulations, and any decision contrary to the said Rules/ Regulations would
be bad in law. In this regard, reliance was placed on the decision in A.K.
Bhatnagar and ors. v. Union of India and ors., (1991) 1 SCC 544 and
Ranajit Kumar Meher v. State of Orissa & Ors., (2017) 4 SCC 568.
20. He relies on P.U. Joshi v. Accountant General, (2003) 2 SCC 632 to
submit that it is for the government to lay down the rules for merge or
demerge the cadres. The cadre of LDC has not been demerged region wise.
Thus, it has to be treated as a unified all- India cadre.
21. We heard learned counsels for the parties, and reserved judgment on
29.11.2018. However, the same could not be pronounced earlier and,
therefore, we listed the matter for re-capitulation of arguments on
22.07.2019.
22. Both the parties have heavily relied upon the Schedule to the ESIC
LDC Recruitment Regulations. However, the said Schedule to these
Regulations cannot be read in isolation, and they have to be read as a whole,
along with other relevant documents.
23. Learned counsel for the petitioner submits that the posts of LDC are
to be filled 75% by direct recruitment, and 25% by promotion (which is
further split up as 10% on the basis of seniority, and 15% on the basis of
LDCE) from amongst Group "D" employees. He has referred to column 13
of the Schedule to the Regulations to argue that the DPC for promotions to
LDC consists of the Director (Medical) Delhi/ Regional Director/ Joint
Director Incharge- Chairman Deputy Director/ Deputy Director (Medical)/
Deputy Director (General) Member, as the case may be and, thus, DPC only
exists at the regional level, and not at the All India Level.
24. On the other hand, respondent No. 1 has referred to column 2 of the
Schedule to the Regulations to argue that the number of sanctioned posts is
on All India basis, and the Schedule does not specify any sub- cadre or
Regional cadre. Thus, the LDC cadre is a unified cadre having all India
Seniority.
25. We have perused the entire scheme of the LDC Recruitment
Regulations and other relevant documents referred to by learned counsels.
The documents placed on record show that the ESIC has always maintained
separate cadres for LDCs, Region-wise. The advertisement issued by the
Petitioner for recruitment of LDCs/ Stenographers in 2007 shows that the
600 vacancies for the post of LDCs had separate sanctioned strength for
every State and Union Territory. The relevant extract from the said
advertisement reads as follows:
Employees‟ State Insurance Corporation
Panchdeep Bhawan: CIG Road : New Delhi
Recruitment of Lower Division Clerk/ Stenographers
A. Applications in the prescribed format are invited to fill up 600
vacancies in Lower Divisions Clerk and 53 vacancies in Stenographer,
Grade- D in the following regions of ESI Corporation as shown below. The
break-up of the vacancies is as follows:-
State/UT SC ST OBC General Total Out of which
OH HI VI EXSM
Orissa 02 03 01 13 19 01 - - -
West Bengal 27 06 - - 33 01 01 - -
Pradesh
Uttar 05 - 08 03 16 - 01 - 01
Pradesh
Maharashtra - 08 - - 08 01 - - -
Goa 01 - 01 02 04 - - - -
Puducherry - - 01 02 03 - - - -
Total 118 67 160 255 600 06 10 05 46
vacancies
26. Clause „C‟ and „G‟ of the said advertisement further provided that
recruitment would be on Region/ State- wise basis, and that the application
forms for the post of LDCs had to be sent to the respective State/ Region for
which the candidates were applying. The relevant extract from the
Advertisement reads as follows:
"A. ..............................
Note:
(A)
(B)
(C) The recruitment would be on Regional/ State-wise basis.
Candidates can apply for vacancies in one State only and have to
appear for the examination from a center of that particular State/
UT and shall be liable to be posted anywhere in the State/ Region.
(D) xxxxxxxxxxxxxxx
B. ..................
C ....................
D. Fee & Mode of Payment:-
A Demand Draft/ Banker‟s Cheque should be drawn on State Bank of
India in favour of concerned Regional Director, Regional Office, ESI
Corporation, payable at the respective centres. i.e. Candidate applying for
the post of L.D.C. from Punjab State has to submit the D.D. in favour of
Regional Director, ESIC, Punjab State payable at Chandigarh.
E. ......................
F. .......................
G. .....................
The application form is to be sent by registered/ speed post to the
respective State/ region for the post of which the candidates have applied.
The addresses of the regions/ states where the posts are existing along with
the centres of the examination are given below:-
Xxxxxxxxxxxxxxxxxxxxxxxxxx
H. General Conditions:
1. ...............................
2. The recruitment is against vacancies on a local/ regional
basis. Hence anyone selected/ appointed on local/ regional basis shall be
liable to posted anywhere in the State/ Region." (emphasis supplied)
27. We may also refer to the communication dated 08.08.2012 addressed
by the Headquarters Office of the ESIC to the Regional Director/ Director
(Med.), Delhi, Regional Office/ D(M)D, ESI Corporation on the subject of
Sanctioned Strength Officers & Staff (as on date)- reg. This communication
reads as follows:
Sir,
I am directed to invite your attention towards the
letter under reference wherein sanctioned strength
excluding posts sanctioned for Medical Education
Division on 09.01.2012 and 24.01.2012 which are pooled
posts to be released on start of functioning of their
institution were communicated, in respect of your
Regional Office/ Sub Regional Office/ PGIMSR/ SSMC/
SMC & Model Hospitals etc and comments/ views were
desired in that respects.
In connection, it is informed that based on the
strength furnished by the concerned Regional Director
and records available with this office, the Sanctioned
strength (excluding posts sanctioned for Medical
Education Division on 09.01.2012 and 24.01.2012 which
are pooled posts to be released on start of functioning of
their institution) in respect of your Regions (including
SRO/SMC/ESIH/ ZTI/ ZVI/ ZDI/ PMD/ MDDC/ PGIMSR
etc) is being communicated. It is to further intimate
that the sanctioned strength which is annexed herewith
will supercede all earlier Sanction/ apportionment and
is final in all respect.
All the concerned are requested to update their
records accordingly for future reference/ recruitment/
transfers etc.
The issues with the approval of Commissioner
(P&A).
28. The said communication contained a Region/ State wise index. We
may refer to the State wise position of the sanctioned posts, in the hierarchy
of posts, in respect of certain States/ Regions by way of illustrations. In
respect of Andhra Pradesh, the State/ Region wise sanctioned posts in the
hierarchy was stated as follows:
ANDHRA PRADESH
NAME OF POST RO VIJAYWAD VISHAKAPATANAM SMC ESIH ESIH ICT PMD TOTAL
A NACHARAM SANATH DIV.
NAGAR
(OL)
(TECH.)
DY. DIRECTOR 8 3 2 2 2 2 2 1 22
DIRECTOR
(OL)
SSO 58 14 9 5 4 1 6 3 100
TRANSLATOR
TRANSLATOR
ASST/ H.C 93 22 14 2 7 5 3 4 150
UDC 17 44 27 2 24 13 3 3 292
MTS 10 26 17 2 6 6 1 3 166
OPERATOR
TOTAL 50 128 82 14 53 32 18 14 850
(emphasis supplied)
29. Similarly, for Delhi, for the State/ Region, Delhi, the sanctioned posts
of LDC were disclosed in the tabulation as follows:
DELHI
NAME RO ROHINI OKHLA ZTI ICT PMD TOTAL
OF DIV .
POST
30. In relation to the Directorate (Medical), Delhi, the number of
sanctioned posts of LDC were disclosed as follows:
DIRECTORATE (MEDICAL) DELHI
NAME OF D(M)D DENTAL PGIMSR TOTAL
POST ROHINI BASAIDARA
PUR
31. Thus, it is evident that not only the recruitment of LDCs was
undertaken on Regional basis, even the sanctioned strength, inter alia, for
the posts of LDC was maintained Region/ State wise.
32. As noticed hereinabove, the appointment letters issued to the LDCs,
including respondent No.1, stipulated that he would be liable to transfer on
All India basis "on promotion at the All India level". Consequently, in
respect of posts for which separate cadres were maintained State/ Region
wise, the employees were not liable to transfer. Pertinently, the contesting
respondents have not been able to point out any general policy for transfer of
LDCs from one Region/ State to another by the Corporation in the
exigencies of service.
33. Pertinently, the office memorandum No. A.33/19/89- Estt.-I dated
25.05.1990 provides for voluntary transfer of Group „C‟ and Group „D‟
employees from one region/ State to another. However, the said
memorandum, which has been issued in consultation with the ESIC
employees federation, provides that such voluntary/ on request transfer
would lead to the transferred Group „C‟ and Group „D‟ employee being
placed at the bottom of the seniority in the cadre to which he is transferred.
This also clearly shows that the post of LDCs/ UDCs/ Assistants do not
carry inter regional/ State transfer liability.
34. Heavy reliance has been placed by Mr. Khatana on the Schedule to
the ESIC LDCs Recruitment Regulations which enlists the post of LDC/
Adrema Operator/ Telephone Operator/ Computer, and also discloses the
number of sanctioned posts as 2321 (in the year 2006), subject to variation
depending upon the workload. In our view, reliance placed on the said
Schedule to the ESIC LDC Recruitment Rules is misplaced.
35. It is evident that even though Region/ State wise cadres of LDC have
been maintained by the petitioner, in so far as the Recruitment Rules for the
post of LDC are concerned, they are the same and have been uniformally
framed for all the States/ Regions. Merely because the Schedule to the ESIC
LDC Recruitment Regulations discloses the consolidated number of
sanctioned posts of LDCs on All India basis, it does not mean that the cadre
of LDCs is unified on All India basis. As submitted by learned counsel for
the petitioner, the DPC for promotion to the post of LDC in respect of 25%
promotion quota (10% on the basis of seniority and 15% through LDCE ) is
constituted on Regional/ State basis. Thus, each Region/ State invites
applications from eligible candidates, and considers promotions to the posts
of LDC on Regional/ State level, depending upon the number of vacancies
available, and on the basis of the seniority / merit position in the LDCE from
amongst employees in the Group „D‟ cadre who meet the eligibility norms
set out in the Schedule to the ESIC LDCE Recruitment Rules.
36. ESIC (Staff and Conditions of Service) Regulations, 1959 may also
be referred to. The post of LDC is classified as a Group „C‟ post under
Schedule I to the said Regulations. Fifth Schedule of these Regulations, inter
alia, sets out as to who are the Appointing Authority; Disciplinary Authority
and; Appellate Authority in respect of officers/ employees holding Group
„A‟, Group „B‟, Group „C‟ and Group „D‟ posts. In respect of Group „C‟
and Group „D‟ staff, the Appointing Authority is the Regional Director/
Administrative Officer. Pertinently, in respect of the Region i.e. the Office
of the Director (Med.), Delhi, the Appointing Authority is stated to be the
Director (Med.), Delhi.
37. Thus, the submission of Mr. Khatana that the appointments are made
to all posts in ESIC by the Director General is not correct in as much, as,
Rule 4 of the ESIC (Staff and Conditions of Service) Regulations, 1959,
states that all appointments to the posts shall be made by the Director
General, provided that, the Standing Committee or the Director General
may, by General or special order, may delegate to any other authority or
office to the Corporation, powers to make appointments to any post or class
of posts other than posts in Class I and Class II. Since the posts of LDC are
Class III posts, the said power of appointment stands delegated at the
Regional/ State level. In any event, even if the submission of Mr. Khatana
were to be accepted - that appointment to all posts of ESIC have to be made
by the Director General, the same does not ipso facto lead to the conclusion
that a unified cadre of LDCs exists in the ESIC. There is nothing to show
that the Director General could not make appointments on Regional/ State
basis in respect of sanctioned posts in different regions/ states, or that merely
because he is the Appointing Authority, it would tantamount to appointment
to a unified/ All India cadre.
38. We may next refer to the ESIC (Upper Division Clerk or Upper
Division Clerk - Cashier Recruitment Regulations, 2011). These
Regulations show that 15% posts are filled through promotion on the basis
of seniority cum fitness. 10% posts are filled by LDCE. Promotions are
made from the post of LDC to the post of UDC. 75% posts are filled
through direct recruitment by written examination. In respect of promotions
made on the basis of seniority and through LDCE, the DPC - like in the case
of LDC, is held on Regional/ State wise basis. The DPC for making
promotions to UDC consists of :
1) Director (Medical) Delhi/ Regional Director/
Additional Commissioner/ Medical
Superintendent, Employees‟ State Insurance
Corporation.
- Chairman
2) Deputy Director, Employees State Insurance
Corporation.
- Member
3) An Officer of appropriate rank from Employees‟
Provident Fund Organisation.
- Member
39. On the other hand, it clearly emerges from the ESIC (Insurance
Inspector/ Manager Grade - II/ Superintendent Recruitment Regulations,
2007) that the said posts fall in a unified All India cadre, and when an
employee reaches the said post, his seniority would have to be fixed on All
India basis. However, that cannot be said in respect of LDCs, UDCs and
Head Clerks/ Assistants.
40. The submission of the petitioner that he ranked higher in merit than
respondent No.2 when recruited to the post of LDC and, therefore, he was
entitled to be considered for promotion to the post of UDC earlier to
respondent No.2 or others - who ranked junior to him in the recruitment
examination for the post of LDC, has no merit. This is for the reason that
the petitioner consciously applied for and opted to get recruited in the
specific region, namely Director (Med.), Delhi. Therefore, his seniority and
inter se merit has to be seen only in respect of those candidates who were
recruited to the same region in the same recruitment process. It is not his
case that any other person recruited along with him in the same region, who
was less meritorious than him, was promoted to the post of UDC earlier in
point of time when compared to his date of promotion to the post of UDC.
Merely because the ESIC may have conducted a unified recruitment
examination - since the recruitment Rules, and eligibility criteria are the
same throughout all the Regions/ States of ESIC for the post of LDC, and
merely because a common merit list may have been prepared, it does not
follow that the petitioner can compare himself with others, who may have
opted for and joined other States/ Regions in the same recruitment process.
The respondent No.1 opted for recruitment to the Director (Med.), Delhi
region with open eyes, knowing fully well the set up of the regions that he
opted for; the location of the said region; the number of posts and hierarchy
in the said region, and he was aware of the pros and cons of opting for the
said region. It is precisely for this reason that he did not raise any grievance
with regard to drawing up of the regional/ State wise seniority lists of LDCs,
or even UDCs for 8 years after his recruitment. Thus, we also find merit in
the objections raised by the petitioners with regard to the timing of the
original application. If the original applicant had any grievance with regard
to the maintenance of region/ state wise seniority, he should have raised the
issue in the first instance when regional seniority list was prepared in the
cadre of LDC. The petitioner was well aware that recruitments to the posts
of LDC were being made on region wise basis. He took advantage of the
said regional recruitment in as much, as, he did not have to face the prospect
of being subjected to transfer to any other region/ State in the exigencies of
service. We may also observe that, by and large, the norm is that employees
working in Group „D‟ and „C‟ posts are generally not transferred due to
exigencies of service, as their posts are not considered transferable. By
contending that a unified cadre on All India basis is required to be
maintained in respect of LDCs, UDCs and Assistants, respondent No.1, in
our view, is seeking to expose all others in the said cadres to the hazard of
facing inter-regional/ State transfers in the exigencies of service.
41. The past practice adopted by the petitioner ESIC is not only in
conformity with the Rules and Regulations taken note of herein above, even
otherwise, there was no justification to upset the same, particularly, when
there was nothing in the Rules and Regulations to suggest that a unified All
India Cadre existed in respect of LDCs, UDCs and Assistants. The Supreme
Court in N. Suresh Nathan and Anr. (supra) held that a past practice,
extending over a long period, should not be upset by the Court, unless the
practice is not tenable under the Rules. The Supreme Court observed:
"4. In our opinion, this appeal has to be allowed. There
is sufficient material including the admission of
respondents diploma-holders that the practice followed
in the department for a long time was that in the case of
diploma-holder Junior Engineers who obtained the
degree during service, the period of three years' service
in the grade for eligibility for promotion as degree-
holders commenced from the date of obtaining the
degree and the earlier period of service as diploma-
holders was not counted for this purpose. This earlier
practice was clearly admitted by the respondents
diploma-holders in para 5 of their application made to
the Tribunal at page 115 of the paper book. This also
appears to be the view of the Union Public Service
Commission contained in their letter dated December 6,
1968 extracted at pages 99-100 of the paper book in the
counter-affidavit of respondents 1 to 3. The real
question, therefore, is whether the construction made of
this provision in the rules on which the past practice
extending over a long period is based is untenable to
require upsetting it. If the past practice is based on one
of the possible constructions which can be made of the
rules then upsetting the same now would not be
appropriate. It is in this perspective that the question
raised has to be determined.
x x x x x x x x x
6. Consequently, the appeal is allowed. The impugned
order of the Tribunal is set aside resulting in dismissal of
the respondents' application made in the Tribunal. The
department will now consider the question of promotion
in accordance with this decision. No costs."
(emphasis supplied)
42. Similar view was taken by the Supreme Court in M.B. Joshi and ors.
(supra), wherein it observed:
"14. It is further important to note that in the cases before
us, the Government itself has been adopting the practice and
making promotion as contended by the appellants and we
are upholding such practice. In N. Suresh Nathan
case [1992 Supp (1) SCC 584 : 1992 SCC (L&S) 451 :
(1992) 19 ATC 928] also this Court had upheld the practice
followed by the Government. It is also a well-settled
principle of service jurisprudence that in the absence of any
specific rule, the seniority amongst persons holding similar
posts in the same cadre has to be determined on the basis of
the length of service and not on any other fortuitous
circumstance."
43. Pertinently, the petitioner has continued to make promotions and
recruitments to LDCs on the basis of regional/ local seniority even in the
year 2008, which is evident from office order No. 19/2008, dated
07.08.2008. The same pertains to the promotions made to the post of LDC
on the basis of DPC held on 17th and 18th May, 2008 on the basis of regional
seniority.
44. Reliance placed by Mr. Khatana on A.K. Bhatnagar and Ors. (supra)
& Ranajit Kumar Meher (supra) is misplaced. The Supreme Court held
that once rules are framed, the action of the Government in respect of
matters covered by the rules should be regulated by the Rules. There can be
no quarrel with this proposition. However, as we have observed
hereinabove, none of the Rules and Regulations brought to our notice
suggest that a unified All India cadre of LDCs has been created or exists in
the ESIC. In fact, the regulations clearly point in the opposite direction.
45. For the aforesaid reasons, we are of the view that the decision of the
Tribunal cannot be sustained. We, accordingly, set aside the impugned
decision of the Tribunal dated 05.09.2014 and dismiss the Original
Application No. 1247/2012, preferred by the respondent No.1.
46. The parties are left to bear their respective costs.
(VIPIN SANGHI)
JUDGE
(A.K. CHAWLA)
JUDGE
JULY 24, 2019
