Employees State Insurance Corporation vs Dr.Selvan Lukose

Easwaran S., J

The Employees State Insurance Corporation (for short, ‘the ESI Corporation’) is the petitioner herein and 1st respondent in the Original Application. The reliefs sought for in the Original Application was to declare that the applicant is entitled to be absorbed into the service of the ESI Corporation reckoning his seniority with effect from 24.3.1993 and also to set aside Annexure A4 order 19.12.2011 by which the claim for counting the past service of the applicant was rejected.

The brief facts for the disposal of the present Original Petition are as follows:

The applicant before the Central Administrative Tribunal was appointed in service on 24.3.1993 as Assistant Insurance Medical Officer. At the time of entry into service, the service of the applicant was governed by the Insurance Medical Services. Later, the applicant was appointed as Specialist Surgeon in the ESI Hospital, Ezhukone by order dated 20.11.2003 as evidenced from Annexure A1. The applicant was continuing as Specialist Doctor in ESI Hospital, Ezhukone when the hospitals at Parippally and Ezhukone were handed over to the ESI Corporation with effect from 16.4.2010 and 20.4.2010. The question of absorption of employees was pending consideration and the ESI Corporation, by its communication dated 13.6.2011 forwarded the terms of absorption of employees in the above mentioned hospitals. It was contended by the respondent/applicant that the employees opting for absorption in the Corportion was resigned from the State Government Service and was later absorbed into general duty at medical officer reserve cadre. However, in the case of specialist Doctor, they would be absorbed in the Specialist Sub Cadre of the ESI Corporation. The applicant while working as Specialist Surgeon in the ESI hospital was liable to be absorbed in the ESI Corporation in the Specialist Cadre. This was the backbone of the contention raised by the applicant before the Central Administrative Tribunal (‘the Tribunal’, for short) in the Original Application.

The petitioner appeared before the Tribunal and resisted the claim of the applicant. The prime contention raised was that though the applicant was absorbed by order dated 27.6.2012, the applicant chose to challenge the order before the Tribunal only on 22.10.2013. It was further pointed out that such employees seeking absorption to ESI Corporation had to submit an option. Having unconditionally accepted Annexure A4 order of absorption, the belated claim cannot be considered. The working of the applicant in the ESI Corporation was on a deputation and while so, the applicant had applied for a fresh selection in the post of Specialist in the ESI Corporation as per Annexure A6 notification. Thus, the essence of contention of the petitioner was that the applicant being a direct recruitee to the post of Specialist Grade II (junior scale), there was no question of the reckoning of the past service for the purpose of calculating the seniority in the ESI Corporation.

On a consideration of the rival contentions and the materials on record, the learned Tribunal by the order impugned came to the conclusion that the applicant is entitled to succeed and direction was issued to absorb the applicant in Specialist Grade II in the ESI Corporation from the date of absorption option exercised.

The petitioner has thus challenged the said order before this Court by invoking the powers under Article 227 of the Constitution of India.

We have heard Sri. T.V. Ajayakumar, the learned counsel appearing for the petitioner and Smt. Sumathi Dandapani, the learned Senior counsel assisted by Sri. Millu Dandapani, the learned counsel appearing for the respondent.

We have considered the rival submissions raised across the Bar and have perused the materials produced along with the original petition.

Sri. Ajayakumar, the learned counsel appearing for the petitioner would contend before us that the learned Tribunal erred in allowing the Original Application in so far as the appointment of the applicant was on a direct recruitment. This crucial aspect has been completely lost sight by the Tribunal while rendering the impugned order which calls for the exercise of the power under Article 227 of the Constitution of India and the order is liable to be interfered with. He placed reliance on the notification issued by the ESI Corporation. The notification was produced before the Tribunal as Annexure A6. According to the learned counsel for the petitioner, by Annexure A6 what was intended was recruitment of Specialist Grade II Junior scale in the ESI Corporation for the Kerala region. The reading of the entire Annexure A6 according to the learned counsel for the petitioner would leave no room for doubt that the process undertaken was not that of absorption but a regular selection. The regular selection having been done; the applicant could not aspire to get any benefit of the past service rendered in the State service. He would further place reliance on Annexure R1(a) office order dated 19.12.2011 in which it was specifically ordered that the medical superintendent was required to convey the decision of the competent authority to absorb them by indicating the post in which they were absorbed and seek unconditional offer of acceptance. He would further place reliance on clause 1 of Annexure R1(a) to contend that the basic pay in the post was fixed on the date of absorption in consultation with the Deputy Director, therefore, according to Sri. Ajayakumar, Annexure A4 was rightly issued and should not have been interfered with by the Tribunal.

On the other hand, learned Senior counsel Smt. Sumathy Dandapani appearing on behalf of the respondent/applicant as instructed by Sri. Millu Dandapani would point out that the applicant was a senior doctor continuing in the insurance service of the State and while so, he was posted in the ESI Corporation. She would place reliance on Annexure A1 order dated 20.11.2003, to contend that the applicant, while working as Assistant Insurance Medical Officer was posted as Surgeon in the existing vacancy of the ESI hospital Ezhukone. Therefore, it is the specific contention of the learned Senior counsel that the applicant continued to work as the Specialist doctor even at the time of the so-called recruitment in the year 2011, thus, essentially, there is no change in the duty. Applying the principles of legitimate expectation, according to the learned Senior counsel, the applicant was entitled to have the prior service reckoned for the purpose of all benefits while working under the Corporation and urged that the Tribunal appreciated the facts correctly and does not require any interference at the hands of this Court in the exercise of the powers under Article 227 of the Constitution of India.

The pointed question that arises for consideration is as to “whether the applicant was absorbed in the services of the ESI Corporation on terminating his engagement in the State service or not”. The success of the applicant will depend upon the interpretation of Annexure A6 notification issued by the ESI Corporation. The rationale behind the issuance of Annexure A6 would also have to be looked into by this Court in order to find out what was intended by the Corporation, whether a recruitment process or an absorption of the persons who continued in the State Insurance Service into the Corporation with all consequential benefits, including reckoning of the past service rendered by them in the State. A perusal of Annexure A6 would definitely show that it is definitely a recruitment notice for the post of Specialist Grade II (Junior Scale) in the ESI Corporation for Kerala region. Though the date of notification is not mentioned, a reading of the various provisions of the notification show that the selection of the persons continuing in the State service is not automatic. The recruitment process will begin only on a proper application by the applicant. The candidates who are employed in the Government/Semi Government/autonomous body were entitled to apply. However, conditions were prescribed for such applications being forwarded. One such condition was that the copy should be complete in all respects including the attested copies of all certificates.

Note 2 to Annexure A6 notification shows that the selection would be based on an interview for the post. Furthermore, Note 3 specifies the crucial date for determining the age limit, work experience and other criteria will be 27.1.2011. As per Clause (iv) of the General Conditions incomplete or unsigned application or the application received without the certified copies of the mark sheet /certificate of educational qualification, examination fee etc. would summarily be rejected. The cumulative reading of various clauses in Annexure A6 would leave no room for doubt that what was undertaken is a process of recruitment/selection. The absorption of the existing Specialist Doctors in the State was not automatic. Once the candidates are subjected to a selection process, the irresistible conclusion that is liable to be drawn is that, the same is a fresh recruitment and not an absorption into the services of the ESI Corporation as contended by the learned counsel appearing for the petitioner.

A perusal of Annexure A7 would also show that the list of selected candidates was drawn on the basis of the interviews conducted during 23.06.2011 to 25.6.2011. The selection of these candidates was provisional subject to the verification of their original certificates in support of qualification, age, community/caste experience claimed etc. up to the satisfaction of the appointing authority. Annexure A7 when read along with Annexure A6, would show that the selection of candidates who had applied pursuant to Annexure A6 were not automatic; therefore, the learned counsel for the petitioner is right in contending that the selection process was in fact for a direct recruitment and not for an absorption thereby entitling the applicant to claim the past service. The learned counsel for the petitioner would also contend that the applicant was appointed in the Kerala Insurance Medical Services as per the Special Rules for the Kerala Insurance Medical Rules 1993. The said appointment cannot entail any benefit to the applicant to claim, as a matter of right, his seniority in the ESI Corporation based on the past service. He would also point out that as per Annexure R1(a) the Medical Officer who opted for All India Seniority will also be eligible for promotion beyond CMO level as and when due and, in cases of all other doctors they will be eligible for promotion as and when due only upto CMO grade. Therefore, according to the learned counsel, in the totality of the circumstances, the order passed by the Tribunal is plainly erroneous and certainly call for interference by this Court.

A bare scanning of the order impugned in the Original Petition shows that the Tribunal completely went wrong in appreciating the true purport of Annexure A6 notification. The relevant paragraphs of the findings rendered by the learned Tribunal are extracted below:

The respondents ESIC points out that the applicants had accepted the terms of absorption offered. It would appear that the applicants had little choice, as the whole hospital was being taken over by ESIC where applicants had worked from 1993 to 2011 ie. for over 17 years. Hence opting out of the absorption would leave them in a limbo, an uncertainity about their future, where they would be posted, whether their past service and seniority in the State Insurance Service would count and other countless unanswered questions. Though the respondent avers that absorption was not a compulsory option, it would not have been an easy choice exercised by the applicants. Though it would have been easy for respondents to pick a replacement, it would have been difficult for applicants to find a similar slot and interpolate themselves in another organization considering the age of applicants.

The applicants' services had been extracted in the post of Specialist since 2003. The applicants aver that in the State Government service, there is no recruitment exclusively for the Specialist post nor is there a seniority list separately maintained for the purpose. Those who were accommodated against Specialist posts by virtue of their qualification were treated as having been appointed as Specialists by giving them a specialist allowance of Rs.350/- since there is no separate pay scale for the post.

Applicant in O.A.No.1047/2013 participated in Specialist Grade II direct recruitment of ESIC and qualified for appointment in the said post. Applicants in O.A.No.948/2013 and O.A.No.949/2013 could not participate in Specialist Grade II direct recruitment since they were overaged. The services of the applicants were, on obtaining Post Graduate Diploma/Degree, utilized against the post of Specialist Surgeon (Ο.Α.Νο.1047/2013), Specialist Orthopedic Surgeon (Ο.Α.No.948/2013) and Specialist Pediatrician (O.A.No.949/2013) in State Medical Insurance Service since 2001/2002. The applicants had the qualification and experience necessary for the Specialist post as per conditions in the earlier organization. This was confirmed by applicant in O.A.No.1047/2013 being recruited to the Specialist post by ESIC respondent.

In our considered view the Tribunal had misplaced sympathy on the applicant. The Tribunal which is vested with the power of judicial review of the administrative action as per the provisions of the Administrative Tribunals Act cannot be guided by misplaced sympathy and contrary to the terms and conditions of service. The Administrative Tribunal is not expected to lay down its own views in the matter of providing service conditions of an employee. The stipulation of service conditions of an employee is purely within the domain of the employer and the courts and tribunals are not empowered to alter such terms and conditions of service. The finding of the Tribunal, no doubt in our mind, are plainly erroneous and unwarranted and has been rendered without proper appreciation of the materials on record. The result of the above discussion leads to an irresistible conclusion that the Tribunal went wrong in allowing the Original Application.

Accordingly, we allow the Original Petition. The order of the Tribunal in O.A. No.1047 of 2013 is set aside. No order as to costs.