Document text
CIIEFINAI BENCII
oA/310/00823/2016
Dated this the 24th day of September, Tlvo Thousand Tbrenty Five
CORAI\{:
IION'BLE MR M. SWAIVTINATHAN. MEMBER (O
AIYD
HON'BLE MR. SrSIR KUMAR RAIHO, MEMBER(A)
L. S.Santhosh Kumar,
S/o V Sharunuganathan,
2/5, ESIC Staff Quarters,
Kaleeswara Nagar, Kattoor,
Coimbatore.
2.M. Rajasekaran,
S/o M. Murugarl
B-t24, ESIC Staff Quarters,
143, Sterling Road,
Nungambakkam, Chennai.
3.A. Puviyarasi,
Wo R. Prabhu,
gN3L,Asath Street, Ami
4.D. Amudha Kalaiyarasi,
D/o ivlDaruman,
25l44,MGR Streef
Kamaraj Nagar,
New Perungalathur, Chennai.
5. V. Sriraj sivashankar,
S/o M. Varadamjan,
l, 62- 1,, Jawahar Main Road,
Punjai Puliyampatti,
S athyamangalarn T alulq
Erode District.
ffi,r
1
OANo.310/0092312016
CENTRAL ADMIMSTRATT\TE TRIBI'NAL
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6.K.P. Arulchezian,
S/o K.Paneerselvam,
B-40, ESIC Staff Quarters,
143, Sterling Road,
Nungambakkam, Chennai.
7.S.Selvam,
S/o M.Soundara Rajan,
54, St. Thomas Streeq
AKANagar, Oragadam,
Ambattur, Chennai.
8.R. Hari Vinod,
S/o V. Raghunattu
2613, B,4n Street, Vt{R Nagar,
Vadavalli, Co imbatore.
9.8. Kalaivani,
Wo J. Satheesh Kumar,
E!-53, ESICStaff Quarters,
143, Sterling Road,
Nungambakkam, Chennai.
l0.S.Gunaseelan Daniel,
S/o (late) I. Soundararajan,
L 46 I 40, Thiruneermalai Road,
West Tambaram, Chennai.
11.S. Vinod Kurnar,
S/o K.Somu Kumar,
13, Dr.Ambedkar Skeet
Palavanthangal, Chennai.
[2.S.Revathi,
D/o P. Selvam,
9-67, ESIC Staff Quarters,
.,143; Stertihg Road,
2
OA l.lc.3 1 0 I 00823 120 I 6
Nungamb akkbrn"Chennai.
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OANo.310/008nn0rc
1 3 . M.A.Mohamed Yas ar Arafath,
S/o Ahamed Meeran,
B-46, ESIC Staff Quarters,
143, Sterling Road
Nungabakkam,Chennai.
14.M. Ramya
IM/o D. Madhan,
170-8, 2od Cross Strree!
Natesan Nagaq
Virugambakkam, Chennai.
l5.A.Virnala,
Wo P. Muthukumar,
B-1 14, ESIC Staff Quarters,
143, Sterling Road,
Nungambakkam, Chennai.
16.5. Manikandan,
S/o V.Subramanian,
64, Periyakoladi, Lotus Nagar,
Thiruverkadq Chennai.
17.R Vilasini,
V//o G. Manikandan,
3817, Thiruvalluvar Apartments, TNHB 608 Flats,
Ayapakkam, Chennai.
18.K. Giridharan,
S/o K.Kamalakannarl
F2, AMRAAS CRESCENT,
No.1, Aryacowda Road,
Rangarajapuram,
Kodambakkam, Chennai.
20.Y. Sivananthan,
S/o M.S. Velpandian,
23, Balaji Nagar 2nd Cross Streeq
, Kalai Nagar Extension, Madurai.
19.M. Pitchaivel,
S/o M. Mahalingam,
18, Velu MudhaLi Street,
Ranipet.
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21.S.S. Rajaganesh.
S/o S.J. Sekar,
25 I lT,Arul Mani Street,
Military Line, Samathanapuram,
Palayamkottai, Tirunelveli.
By Advocate Mr. A. Irudayam
l.The Ernployees' Siate Insurance Corporation
(To be represented by The Director General)
ESI Corporation, Head Quarters Offtce,
G.I.G. Marg,New Delhi.
2.The Regional Director,
ESI Coqporation, Regional Offtce,
143, Sterling Road,
Nungambakkam, Chennai.
3.The Union of India
rep by its Secretary,
Ministqy of Labour and Employment
Sluam Shakti Bhavan,
New Delhi.
ByAdvocate Mr. C.V. Rarnachandra Murthy
Mr. Su. Srinivasan, SCGSC
4
OANo.310/0082312016
Applicants
Vs.
Respondents
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OANo.310/00823/2016
ORDER
(Pronounced by llon'ble Mr. M. Srvaminathan, Judieial Member)
Twenty one applicants have joined together in filing this OA seeking
the following relief:
a) Quash the Memorandum No. A-40/11/1l20ll-E-
Itr. Col.tr dated 05.09.2011 followed by another
Memorandum of even No. dated 04.11.2011 issued
by the 1$ respondent together with the offrce order
No.368 @) of 2011 in File 5l-A-ll/2ll2009lLdmrl.l
dated 13.12.2011 of the 2nd respondent based on the
erronoous approval of upgradation of LDCs under
sub-paras (t) and (ii) of para No.1 of he letter dated
01.09.201i addressed by the 3d respondent to the ls
respondent, on the grounds of violation of DOPT,
Government of India Office Memorandun No.AB
1401716612088-Estt. RR dated 09.03.2009 as well as
violation of Recruitment regulations as applicable to
UDCs
b) Quash the Notification portion under the second
tablo relating to 'LDCE for the post of Assistant"
therein notiff'ng "L62 eligible candidates" but not
eligible as they are not entitled to be bome in the
UDC cadre against 27 vacancies f,or the "Vacancy
e,ar 2015-16" under the circular No.5 l-4/36/2013
Admin-I dated 10.12.2015 issued by the zon
respondent followed by the "Details of Eligible
Applicant's in Tamil Nadu Region for vacancy year
2-15-16 therein detailing 162 LDCs applicants
' enoneously termed as regular UDCs wef 01.L2.20L1
listed from S1. No.1 to 162 both issued by the 2d
respondent together with announcernent of 196
Eligible candidates eligible to appear for the limited
departmental examination to be held on 20o 21't
February,2015 announced undet Letter No.A-
36(l 1/2015-exam dated 28.01.2016 issued b
rs
respondent, n the grounds of violatio
employees state insurance corporatio
5
Division Clerk or Upper Division CIe
recruitment regulations, 201 I as well as
of statutory rules.
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c) And resultantly prohibit the respondents from
declaring the result of limited departrnental
competitive examination for UDCs held 20 &
21.02.2016 for the post of AssistairtsAlead Clerks on
the ground that the notification/Ciroulars vide No.51-
N36/3012013-Admn.I dated 10.12.2015 of the 2od
r6spondent and circular No. A-36(11/2015-Exam
dated 28.01.2016 referred under sub-para (ii) and (iii)
above being statutory violationl violation ofRule of
law an denial of equality of o.pportunity, denial of
Natural Justice guaranteed under Artiole 14 of the
Constihrtion.
d) Direct the l" and Td respondents to isdue the fina1
gradation list of UDC of Tamil Nadu Region as on
31.03.2014 and thereafter by considering the
representations dated 25.03.2015, 24.07.20L5,.
24.08.20-t5, 26.t1..2015, 14.12.201 5, | 5 -12.20t 5,
t6.12.201' 5, t7 .12.20t5, 23.12.201 5, 3 1.12.20 | 5,
20.01.20L6, 25.02-2016 totalling to
18
representations from the period flom 25.03.2015 to
25.02.2016 &om 16 applicants in compliance with
DOPT Office Memorandum NO.AB 140 I 7/6612008-
Estr RR dated'09.03.2009, while examining the
objections raised by the applicant's w.r.t the draft
gradation 1i9t of Upper Division Clerks in r/o Tamil
Nadu Region as on 3103.2014 circulated under
Memorandum No.5 1-424- I 4 - I I I 2007 I Adiiln dated
31.07.2014."
2.
The factual matrix of the case are as follows:
The respondents issued Memoranda dated 05-09-2011 and 04-Il-2011,
approving the upgradatiot of 75Yo of Lower Division Clerks (LDCs) to
Upper Divisign Clerks (JDCs) in the Tamil Nadu Region,
qualif,roation, and subject to vigilanoe clearance, effective
2011. This was based on the 3rd respondent's approval dated
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OANo.310/00823/2016
following the restructuring of the ESI Corporation. When posts are
upgraded, merged, or granted higher replaceinent pay scales, para 2 ofthe
DOPT OM dated 09-03-2009 envisages
. Suitability assessments are not required.
. No minimum service in the previous grade is needed.
. Seniority remains unchanged in merged grades.
These exemptions apply only when all posts in the cadre are
upgraded or merged. ln cases ofpartial upgradation, such as
tha 75Yo LDC upgradation in Tamil Nadu, these exemptions
do not apply.
DoPT OM dated 09-03-2009 further clarifies that for partial upgradation
or restructuring the normal DPC (Departmental Promotion Committee)
procedure must be followed, and assessment of suitability is still
necessary. The DoPT OM dated 13-09-2012 (para 2@)) conceming
seniority-assigning upgraded offrcers en bloc below those in position as
of 29-08-2008-is only applicable in cases of full upgradation/merger as
per 6th CPC recommendations, and not in partial mergers like the one
carried out by the respondents. If the respondents intended to grant regular
promotional status through this upgradation, it should have
DPC in accordance with the existing Recruitment Rules
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7
was not done, the 173 LDCs cannot be considered UDCs an
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OA No.310/008232016
included in the UDC Draft Gradation List as of 31-03-2014 or thereafter.
While upgradation of 769 MTS to LDCs in the Memo dated 0l-03-2016
followed proper RR and DPC procedure, the upgradation of LDCs to
UDCs in 2011 did not. This inconsisiency violated DoPT guidelines and
caused injustice. These actions by the respondents are alleged to be in
violation of statutory regulations, discriminatory, and against principles of
nahrral justice and Articles 14 and 16 of the Constitution. Therefore, relief
as prayed in the Original Application is sought.
3. The learned counsel for the Appticants contents that the applicants
have filod the present Original Application seeking to quash and set aside
the following impugrred orders issued by the Respondents:Memoraudum
No. A-40lll/ll20l1-E-m. Col. II dated 05.09.2011 (Annexure
A7);Memorandum dated 04.11.2011 (Annexure A8);Offrce Order No.
368(E) of 2011 dated 13.12.2011(Annexure Al0),which pertain to the
upgradation of 75%o of the posts of Lower Division Clerks (LDCs) to
Upper Division Clerks (JDCs) without adherence to statutory recruitment
rules or Department of Personnel and Training (DoPT) guidelines.
counsel further submitted that the impugned
principal grounds: Violation of Para 3
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DoPT OM dated 09.03.2009, which mandates DPC- based suitabitity
assessment in cases of partial ca&e restructuring; Non-compliance with
the Recruitment Rules for UDCs dated 03.04.1965, which require three
years' experience and completion of probation for promotion from LDC to
UDC;Improper invocation of Section L7(2) of the ESI Act, without
formation of a reasoned opinion or legal compliance;Iqjustice caused to
directly recruited IJDCs, who have been placed below upgraded LDCs
lacking eligibility under statutory nomrs.
5. It is also submitted by him that the DoPT OM, dated 09.03.2009
clearly distinguishes between full cadre upgradation and patial
upgradation: Para 2 dispenses with DPC procedures only in case of
complete cadre merger/upgradation. Para 3(ii) stipulates that in partial
upgradation or restructuring, where upgraded posts serye as promotion
grades, the normal DPC procedwe is mandatory. In the present case, only
75% of LDC posts were upgraded to UDCs. This constitutes a partial
upgradation, and thus falls within the ambit of Para 3(ii). The Respondents
were therefore bound to conduct DPCs before heating such upgradation as
promotion. Hence, the learned counsel contended that the i
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respondents is in violation of the DOPT guidelines.
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7 .
The learned counsel also referred to Section 17(2) (a) of the BSI Act
which reads as follows:
'The method of recruitrnent salary and allowances,
discipline and other conditions of service of the
,r,."mb"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 others applicable to the officers and employees
of the Central Govemment drawing corresponding
scale of pay.
Provided that where the Corporation is of the
opinion'that it is necessary to make a departure-
from the said rules or others in respect of any of
rthe matters aforesaid, it shall obtain the prior
approval of the Cental Govemment.'
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5. As per the Recruitment Rules dated 03.04.1965, promotion from
LDC to UDC requires Completion of probation in the cadre of LDC;
completion of Three years of regular service as LDC Promotion to IIDC to
be efflected in 50:50 ratio between seniority-cum-fitness and merit-cum-
fitness. However, tlle analysis of records from the Tamii Nadu Region
reveals that only 44 out of 193 upgraded LDCs had completed the
requisite t}ree years. Around 7h80 LDCs had completed merely six
months of service and were yet to complete probation' Further, no DPC
was held and the 50:50 rule was not followed, violating both statutory
requirements and principies of faimess. This attracts non-compliance with
UDC Recruitment Rules (1965)
i:i{
"
,-:,:
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In the instant oasq the leamed counsel pointed out that the lst Respondent
did not form or record any such "opinion" as required. Nojustification for
deviation was provided. The 3rd Respondent's approval letter dated
01.09.2011 (Annexure .4.6) does not qualift as a Speaking Order, and
reflects non-applioation of mind. Moreover, the reference to "Section
17(2)" without specifting clause (a) or (b) is legally untenablq as no such.
stand-alone provision exists. Thus the perfunotory approval conveyed
under letter dated 01.09.2011 by the 3d respondent to the l't respondent is
evidenced by arbitrariness, no-application of mind and in violation of the
statutory provisions, which renders the approval dated28120.08.2011 and
conveyed uader letter dated 01 .09.20 1 I is void.
8. It is further submitted by the leamed counsel that the Draft
Seniority List of UDCs as on 31.03.2014 (Annexure Al4) places 173
upgraded UDCs above 63 directly recruited UDCs of 2011, thereby
Granting seniority to ineligible LDCs, many of whom lacked required
experience; Prejudicing the seniority rights of the Applicant and others
who were lawfully appointed through open competitive examination;
Violating settled principles of service jurisprudence, including
Uiion of India v. N.R. Parmar. The grievance of the Appli
inter se seniority among upgraded LDCs, but with their very
o
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the seniority list of UDCs, without fulfilling eligibility norms.
9. The learned counsel pointed out that the respondents in their
Counter Affrdavig have admitted deviation from statutory rules (as seen
from Pages 3, 6, and 10 of 'the Counter), which further supports the
Applicant's case. Despite such admission, the impugned orders continue to
remain in force. and no corrective action has been taken.
10. In view of the foregoing submissions, the learned counsel for the
applicants prays that this Tribunat may allow the OA by quashing and
setting aside the Memorandum dated 05.09.2011 (Annexure
A7),Memorandum dated 04.11.2011 (Annexure A8), and Office Order
dated 13.12.2011 (Annexure A10) and also declare that the upgradation of
LDCs to UDCs without DPC and in violation of appiicable rules is illegal,
ultra vires and void. He also sought for a direotion to the Respondents to
revise the seniority list of UDCs by excluding all ineligible upgraded
LDCs who did not fulfrll the statutory criteria-
11. Per contra, learned counsel for the respondents con
nls
o
prayers (b) and (c) have become infructuous. If prayer (a) is
tu
do
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prayer (d) would consequentially follow. Therefore, only prayer (a)
survives for adjudication.
12. It is further submitted that the initial oause of action arose in 201 1.
No objections were raised by the applicants regarding the subsequont
seniority list issued :u;.2013J,014, which has thus attained finality. In view
of the above, this Original Application is barred by limitation under
Section 2l of the Administrative Tribunals Act.
13. It is pertinent to submit that the ESI Corporation has sigrrificantly
expanded its operations and firnctions. It has undertaken new initiatives,
including the establishment of Medical Institutes, Post Graduate Medical
Colleges, and Super-speciality Hospitals aoross India. Furthermorq a
comprehensive IT Roll-Out Prografilme has been launched to improve
operational effrciencY.
14. In tight of these developments and to meet future challenges, the
Corporation proposed a restructuring plan, which was placed before the
i50'h Meeting of the ESI Corporation held .on 03.09.1
a)
tn ls
o
a
Corporation approved the formation of a Sub-Committee to
n
olnd .a\\\
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restructuring measures. The Sub-Committee, in its meeting heid on
12.07.2011, provided interim recommendations, including the upgradation
of 7 5Yo of existing LDC posts to UDC posts. It was further recommended
that future direct recruitment be made to the UDC cadre only, with a
mlnlmum
qualification of graduation, thereby discontinuing direct
recruitment to the LDC cadre. These recommendations were approved by
the Corporation in its 153'd Moeting held on 29.07.2011.
15. The leamed counsel further submitted that since the upgradation of
all LDCs'as on 01.12.2011 to the cadre of UDCs involved a deviation tom
the existing rules, prior approval of the Central Government was obtained
as per Section l7(2) of the ESI Ac! ttrough Ministry of Labour &
Employment letter No. L-1201810412;001-SS.I dated 01.09.2011.
Therefore, according to him, no violation of any Act or Rule has occurred,
and the Applicants' contentions are devoid of merit. Pursuant to the
Ministry's letter dated 01.09.2011, the ESI Corporation was direoted to
publish the revised Recruitment Rules for the UDC cadre to fill the
remaining vacancies. These Rules were
of India on
03.12.20 ll, formally introducing
for the
t+r
oo
c
IlJ
first time.
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16. It is further submitted that the approval to upgrade all LDCs to
UDCs as on 01.12.2011, the revised Recruitment Regulations for UDCs,
and the subsequent recruitment through which the Appticants tlemselves
the sake of argument if the upgradation process -
as challenged by the
Applioants -
is held invalid, then the very process of recruitment through
whioh theApplicants were appointed would also stand invalid and is liable
to be struck down.
17. The Applicants have also failed to implead necessary parties to this
Application. On this ground alone, the present Original Application is
liable to be dismissed for non-joinder of necessary parties.
18. In view of the above, learned counsel prayed that this Hon'ble
Tribunal may be pleased to dismiss the Original Application with
exemplary costs, and pass such other orders as may be deemed fit and
proper in the interest ofjustice.
inig
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19. The applicants have filed a rejoinder reiterating the
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rnade in the OA.
were appointed, form part ofa single consolidated prciposal. Therefore, for
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OA No.310/00823/20i6
20. We have heard the arguments advanced by the learned counsel for
the parties at lengt[ perused the pleadings and the materials placed on
record. The judgments referred to by them were also perused by us.
21.
Before going to the merits of the issue, rve would like to refer to
the Memorandum dated 05.09.2011, issued by the Bmployees State
Insurance Corporation in respect of Upgradation of 75Yo posts in the
Cadre of LDC to the post of LIDC which is the fulcrum of the present OA.
The said OM reads as follows:
"The ESI Corporation in its 153rd meeting held on
29.07.2011 has approved the interim report of the Sub-
Committee on "Organizational Restructuring of the ESI
Corporation". One of the recommendations of the Sub-
Committee was for the upgradatiort of 75o/o of the total
sanctioned posts in the cadre of Lower Division Clerk
(LDC) to that of Upper Division Clerk (JDC). The
Ministry of Labour & Employment vide theil letter No. A-
12018/04/2011-SS.1 dated 1.9.2011 has conveyed the
approval for the following-
l. Upgradation of75o/o ofthe existing posts in the cadre of
LDCs in ESIC to the post in the cadre of UDCs.
2- All the existing LDCs as on 1.8.2011, irrespective of their
qualification, subject to vigilance clearance, will be placed
in upgraded posts of UDCs.
3. In future, the direct recruitment will be in the UDC
with minimum qualification as graduation and no
recruituent will be held in cadre of LDCs
()o
niStrq
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Besides, LDCs appointed after 1.8.2011, will not be
covered under this upgradation and will be considered for
promotion as per due process in accordance with the
provisions of the RRs."
The 2011 Regulations, which came into effect on 03'12.2011, prescribe
thal 75% of Upper Division Clerk (JDC) vaoancies are to be filled
through direct recruitment, 15% through promotion based on seniority-
cum-fitness, and l0% through a Limited Departmental Competitive
Examination (LDCE). In accordance . with these regulations, the
respondent Corporation initiated the selection process in December 2011.
Pursuant to the said notification, 77 WC posts were advertised for direct
recruitment. The applicants were seleoted under this process and were
appointed as UDCs in September 2012.
22. Under the old Recruifrnent Rules, 100% of UDC vacancies were to
be filled through promotion-75% based on seniority, subject to rejection
of unfit candidates, ar:d 25o/o through a Departmental Competitive
Examination. However, on 01.12.2011, the respondent Corporation
upgraded all existing Lower Division Clerks (LDCs) to the post of UDC,
irrespective of their qualifications, subject to vigilance clearance, with
effect from the same date. This indicates that no UDC vacancies were
filled in accordance with the old Recruituent Rules either. I
existing LDCs as of 01.12.2011 were promoted en masse as
C
s-;
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)
t.
effect from that date.
aloe
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23. As per Memorandum No. A-40/11/1/2011-E-m, Column II, dated
Ol.lz.2OlL, issued by the ESIC, it is indicated that after the upgradation of
LDCs to UDCs, the remaining vacancies in the UDC oadre were fi'lled by
the applicants through Direct Recruitrnenl It is true that, as per the Office
Memorandum dated 04.03.20i4, ttre applicants are entitled to be
considered against the recruihnent year 20ll-2012, since their recruitment
process was admittedly initiated during that vacancy year. However, it is
also to be noted that the vacancies filled by promotees, who were
uneradel or promoted, are not aileged to have been part of the same set of
UDC vacancies pertaining to the recruiftnent year 20lL-2012. In the
present casg the applicants have also failed to show any valid reason as to
how the 201l' Regulations, which came into effect on O3.l2.2[ll,could be
applied for determining the seniority of promotees who were promoted
prior to that date.
24. Furthermore, we find that the judgment in N.R. Parmar v. Union of
India, (2012) 13 SCC 340, and the subsequent Office Memorandum dated
O4.O3.2lt4,have no applicability to cases prior to 03.12.2011, as the mode
of direct recruitment to the post of UDC was
frrst time
only from that date. It is also noted that the UDC
seniority positions had already been crystall
tng
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uqq da
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n
took place prior to 03.12.2011 .
.dtr -
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OANo.310/008232016
25. The records indicate that the respondent, ESI Corporation, issued a
seniority list of UDCs as on 31.03.2013, after the applicants were
appointed. The applicants were placed at positiorts 334 to 401 aod were
given an opportunity to raise objections within one month from the date of
the Memorandum, dated 17.01.2014. None of the applicants raised any
objections, and the list was teated as final. Similarly, another seniority list
as on 31.03.2014 was issued on 31,07.2014, in which the applicants were
placed at positions 319 to 381, again behin{ the upgraded UDCs. Again,
no objeotions were raised by the applicants.
26. Having accepted the seniority positions reflected in both lists
without challenge, the applicants cannot now oontest the seniority, as the
lists have since attained finality. It is a well-established principle in servioe
jurisprudence that seniority disputes should not be reopened after a
reasonable lapse of time, as doing so would disturb settled service
positions, which is legally notjustifiable.
27. It is pertinent to note that the applicants, whojoined the respondent
ESI Cgrporationin2012 and 2013, are now challenging
decision taken
a
by the Corporation in 2011, a decision that was made in
the provisions of the ESI Act and with the approval
Government in the year 20 I 1.
/fi-
I
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OANo.310/00823/2016
28. In the present case, tlre upgradation of all LDCs as of 01.12.2011 to
the post of UDC, the amendment of the Recruitment Rules (RRs), and the
subsequent recruitment in the UDC cadre were all part of a comprehensive
and unified proposal. Ifthe relief sought by the applicants, namoly, that the
upgradatio-n be declared invalid is granted, it would effectively render the
entire recruitmont process in the UDC cadre, including the process through
which the applicants themselves were appointed, null and void. In fact, the
applicants have directly benefited from the very decision they are now
challenging. But for that 2011 decisioru the Corporation would not have
been in a position to recruit them as LIDCs in2012 and 2013.
29. tn the facts and circumstances of the case and for the aforesaid
reasons, we do nbt find any merit in the contentions of the applicants. The
OA fails and accordingly the same is dismissed. Pending MAs if any staod
closed . No order as to costs.
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