TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 1298
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.... 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 the DACP Scheme to the Medical Officer Cadr....
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.... 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 2015 came into effect. Thus, the operation of ESIC Regulations 2015 in regard to their service conditions cannot be ignor....
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....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 Pay Band-3 with a grade pay of Rs. 6600/- pursuant to various recruitment advertisements of the appellant; (iv) On 23 September 2011, the appellant addressed a letter to the Dean of ....
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.... 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 applicable to its employees with effect from 01 March 2008 itself. 8 The rival submissions will now be analysed. C Analysis 9 The crux of the dispute is about determining the applicable rules/regulations for promotion of the contesting respondents from the post o....
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....rs 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 officers and employees under the Central Government and in case of any doubt, the Corporation shall refer the matter to the Central Government whose decision thereon shall be final......." (emphasis supplied) 11 Section 97 of the ESI Act empowers the ESIC to frame regulations. The regulations are deemed to have the same effect as s....
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....C 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 (2A) of the said section and sub-section (3) of section 17 of the Employees' State Insurance Act, 1948 (34 of 1948) and in supersession of the Employees State Insurance Corporation (Medical Teaching Faculty posts) Recruitment Regulations, 2008 published in the Gazette of India vide No.A-12(11 )11/2008-Med.-IV dated the 2nd May, 2009, except as respects things done or omitted to be done before such supersession, the Employees' Stat....
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.... 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 of law: "29. It is well-settled law that the regulations made under the statute laying down the terms and conditions of service of the employees, including the grant of retirement benefits, have the force of law. The regulations validly made under the statutory powers are binding and effective as the enactment of the competent legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the regulations as a legal....
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....) 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 Indiav. Majji Jangamayya [(1977) 1 SCC 606 : 1977 SCC (L&S) 191] , P.D. Aggarwal v. State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S) 310 : (1987) 4 ATC 272] , Paluru Ramkrishnaiah v. Union of India [(1989) 2 SCC 541 : 1989 SCC (L&S) 375 : (1989) 10 ATC 378 : AIR 1990 SC 166] , C. Rangaswamaiah v. Karnataka Lokayukta [(1998) 6 SCC 66 : 1998 SCC (L&S) 1448] and Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation [(2011) 5 SCC 435 : AIR 2011 SC 2220] .)" (emphasis supplied) ....
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....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 does not change the legal character of a document. Article 313 refers to laws in force which mean statutory laws. An administrative instruction or order is not a statutory rule. The administrative instructions can be changed by the Government by reason of Article 73(1)(a) itself. [....] 36. The expression "ordinarily" in the requirement of 10 years' experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons. Administrative instructions if not carried into effect for good reasons cannot con....
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.... 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 qualifications prescribed in the advertisement against the relevant recruitment rules and held: "27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence...." 22 The contesting responde....
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....aving 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 such, which again has a presumption of correctness attaching to it, clearly established the appellant's case. Much cannot be made of a concession by counsel that this was a Dharmilainam, in the trial court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in ....