TaxTMI 
TaxTMI 
2022 (1) TMI 1298
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.... 2015. Respondent 3 to 25 interchangeably referred to as "contesting respondents" joined the appellant as Assistant Professors at ESIC Model Hospital, Rajajinagar, Bengaluru. They joined service between 7 February 2012 and 26 June 2014. The Central Government, through the Central Health Service Division of the Ministry of Health and Family Welfare, had issued the DACP Scheme through an Office Memorandum dated 29 October 2008. The DACP Scheme contemplated promotion as Associate Professor upon completion of two years of service in the post of Assistant Professor as an officer under the Ministry of Health and FamilyWelfare. After two years of service as Assistant Professor on 2 February 2017, the contesting respondents sought promotion under the DACP Scheme and instituted proceedings before the Central Administrative Tribunal "CAT", Bengaluru. 4 On 7 February 2018, the CAT relied on the submission by the Counsel for the appellant and held that the ESIC Recruitment Regulations 2015 were not relevant for adjudication of the matter. The CAT also relied on a letter dated 23 September 2014 addressed by the Joint Director of ESIC to the Dean of ESIC which mentioned the implementation of ....
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....eemed to have the same effect as statutory provisions; (v) The contesting respondents joined the ESIC Medical College and PGIMSR, Rajajinagar, Bengaluru as Assistant Professors on different dates between 7 February 2014 and 26 June 2016. These Respondents were governed by the Employees' State Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations, 2008 "ESIC Recruitment Regulations 2008"; (vi) The High Court incorrectly held that the conditions for promotion from Assistant Professor to Associate Professor were governed by the DACP Scheme on the ground that the ESIC Recruitment Regulations 2015 were inapplicable to the contesting respondents. The ESIC Recruitment Regulations 2008 were gazetted on 2 May 2009 and stipulated four years of qualifying service for promotion from Assistant Professor to Associate Professor. Therefore, none of the contesting respondents would have completed four years of service before the ESIC Recruitment Regulations 2015 came into effect, i.e. on 3 July 2015; (vii) Under the ESIC Recruitment Regulations 2008, the contesting respondents became eligible for promotion after the ESIC Recruitment Regulations 20....
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....ay M Nuli, appearing on behalf of the contesting respondents, Respondent 3 to 25, has urged the following submissions: (i) The Office Memorandum dated 29 August 2008 extended the DACP Scheme to all Medical doctors, whether belonging to Organized Services, or holding isolated posts. It also directed all Ministries/Departments to implement the DACP Scheme. By another Office Memorandum dated 29 October 2008, the Government of India extended the DACP Scheme to various sub-cadres of the Central Health Service, including the teaching cadre. Under Section 17(2)(a) of the ESI Act, the DACP Scheme is binding on the appellant; (ii) The ESIC Recruitment Regulations 2008, which stipulate four years of qualifying service for promotion from Assistant Professor to Associate Professor, were issued without the approval of the Central Government; (iii) The appellant has issued advertisements on 19 August 2011, 12 December 2012 and once in 2013 for the post of Assistant Professor by stating "Promotional avenues in the Department are available under DACP guidelines of Govt. of India". The contesting respondents joined the services of the appellant as Assistant Professors in ....
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....ng respondents had already completed two years of service before they came into effect, on 5 July 2015. Therefore, the contesting respondents should be considered for promotion in accordance with the DACP Scheme, in view of the decisions of this Court in State of UP v. Mukesh Narain (2013) 4 SCC 169 and B L Gupta v. MCD (1998) 9 SCC 223 (xii) All the contesting respondents had three or more years of teaching experience before they joined the appellant as Assistant Professors. The qualifying service of five years under the ESIC Recruitment Regulations 2015 should be given a reasonable interpretation and the cumulative experience of more than five years should be held sufficient for promotion; (xiii) The doctors and medical teaching staff in the Central Government are being promoted in accordance with the DACP Scheme. The arbitrary denial of the DACP Scheme to the contesting respondents' Teaching Cadre of the appellant violates Article 14, especially when they are also discharging functions of attending to patients and performing specialised clinical work; and (xiv) In other legal proceedings, the appellant has taken the stance that the DACP scheme is appli....
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....ed that the sanction of the Central Government shall be obtained for the creation of any post the maximum monthly salary of which exceeds such salary as may be prescribed by the Central Government. (2)(a) The method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay: Provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government: Provided further that this sub-section shall not apply to appointment of consultants and specialists in various fields appointed on contract basis, (b) In determining the corresponding scales of pay of the members of the staff under clause (a), the Corporation shall have regard to the educational qualifications, method of recruitment, duties and responsibilities of such off....
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.... no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation." (emphasis supplied) 12 The ESIC Recruitment Regulations 2008 were issued by the ESIC in the exercise of its powers under Section 97(1) and Section 17(3) of the ESI Act. These regulations introduced the cadre of Specialist (Teaching) in the ESIC and governed all appointments to the teaching faculty posts in ESIC Medical Colleges. The ESIC Recruitment Regulations 2008 embodied a requirement of four years' service as Assistant Professor for promotion as an Associate Professor. The ESIC Recruitment Regulations 2015 which were made on 5 July 2015 stipulated a requirement of five years' service as Assistant Professor for promotion to the post of Associate Professor. The preamble of the ESIC Recruitment Regulations 2015 notes that these regulations were to supersede the ESIC Recruitment Regulations 2008 and were made with the approval of the Central Government: "....ln exercise of the powers conferred by sub-section (1) of Section 97, read with clause(xxi) of sub-section (2) and sub-section ....
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....ditions of service and procedure for dismissing employees. These regulations in the statutes are described as "status fetters on freedom of contract". The Oil and Natural Gas Commission Act in Section 12 specifically enacts that the terms and conditions of the employees may be such as may be provided by regulations. There is a legal compulsion on the Commission to comply with the regulations. Any breach of such compliance would be a breach of the regulations which are statutory provisions. In other statutes under consideration viz. the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to Section 12 of the 1959 Act the terms and conditions of employment and conditions of service are provided for by regulations. These regulations are not only binding on the authorities but also on the public." (emphasis supplied) 14 A two-judge Bench of this Court in Pepsu Road Transport Corporation, Patiala v. Mangal Singh and Others (2011) 11 SCC 702 interpreted a similar power to frame regulations under the Road Transport Corporations Act 1950. This Court held that regulations made under the statute have the force....
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....ot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." (emphasis supplied) 16 In Union of India v. Ashok Kumar Aggarwal (2013) 16 SCC 147 a two judge Bench of this Court speaking in the context of service regulations governing a departmental enquiry re-iterated that an office order or office memorandum cannot contravene statutory rules. Justice B S Chauhan noted the position in law in the following terms: "59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Union of....
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....imilar factual situation, a three-judge Bench of this Court in Union of India v. Majji Jangamayya (1977) 1 SCC 606 held that: "31. The second question is whether the requirement of 10 years' experience was a statutory rule. The High Court held that the requirement of 10 years' experience is not a statutory rule. Counsel for the respondents contended that the requirement of 10 years' experience is statutory because the letter dated January 16, 1950 is by the Government of India and the Government of India has authority to frame rules and one of the letters dated July 21, 1950 referred to it as a formal rule. The contention is erroneous because there is a distinction between statutory orders and administrative instructions of the Government. This Court has held that in the absence of statutory rules, executive orders or administrative instructions may be made. (See CIT v. A. Raman & Company [AIR 1968 SC 49 : (1968) 1 SCR 10 : 67 ITR 11] ) [....] 34. Counsel on behalf of the respondents contended that the requirement of 10 years' experience laid down in the letter dated January 16, 1950 had the force of law because of Article 313. Article 313....
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.... present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules." 21 In Ashish Kumar v. State of Uttar Pradesh (2018) 3 SCC 55 a two-judge Bench of this Court followed the decision in Malik Mazhar Sultan (supra) in interpreting an advertisement issued by the Director, Social Welfare Department, Uttar Pradesh for the position of a psychologist. This Court declined to give precedence to the erroneous qualifica....
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....r should have been dismissed by confirming the order of dismissal of the writ petition earlier passed by the learned Single Judge......." (emphasis supplied) 23 The contesting respondents submitted that the appellant is estopped from urging that the DACP Scheme is not applicable to the Teaching Cadre at the ESIC since they have taken this stance before the CAT and in its writ petition before the High Court. While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect. In Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 a three-judge Bench of this Court decided a central point of the dispute in favour of a party, irrespective of the concession of its Counsel since it was on a point of law. Justice M Hidayatullah (as the learned Chief Justice then was), speaking on behalf of the Court observed: "20. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as suc....
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....cs without consulting the client, while the client has a right to make decisions that can affect his rights." (emphasis supplied) 25 Recently, a two-judge Bench of this Court in Director of Elementary Education, Odisha v. Pramod Kumar Sahoo (2019) 10 SCC 674 observed that a concession on a question of law concerning service rules would not bind the State: "11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant." The concession of the Counsel for the appellant before the CAT does not preclude the finding on the law that is arrived at by this Court. D Conclusion 26 The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memor....