Per: Justice S.Sujatha Member(J)

1. This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

“a. To call for records and to issue a writ of Certiorari quashing the impugned order dated 05.03.2021 in reference No.A-19/11/22/92- Med.IV/DPC vide Annexure-A15 passed by the 4” Respondent and endorsement dated 19.07.2021 in reference No.532/A/24/Doctors.misc.2019.Vol.HI. vide Annexure A16 passed by the 5" Respondent.

b. Direct the respondents to consider the case of Applicant for promotion to the cadre of Chief Medical Officer (Non-Functional Selection Grade) in level-13 of pay matrix (Grade pay of Rs.8,700/- in Pay Band-4, pre-revised) and above cadre under DACP Scheme with granting due eligibility date with notional benefit from 01.04.2008 and all consequential benefits and consequently refix the pension accordingly.

(c) Pass any other order or direction that the Hon’ble Tribunal deems fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity.”

2. Briefly stated the facts as narrated by the applicant are that she entered into service as Insurance Medical Officer on 12.11.1980 at Employees State Insurance Hospital, Rajajinagar. She was promoted as Deputy Surgeon on 27.03.1996. Further she was promoted as Surgeon/Chief Medical Officer on 14.07.2000. She was sent on deputation to ESI Corporation from 01.04.2003 on account of taking over Hospital by the Central Government. Initially as per the order passed by the 2" Respondent she was absorbed in the 2’ Respondent Corporation w.e.f. 01.01.2006 and she retired from service on attaining the age of superannuation on 30.09.2014. It is submitted that Government of India, Ministry of Health and Family Welfare issued an official memorandum dated 29.10.2008 for extension of Dynamic Assurance Career Progression Scheme (DACPS) up to Senior Administrative Grade (SAG) level in respect of Officers of Central Health Services and Dental Doctors under the Ministry of Health and Family Welfare. Based on the said OM dated 29.10.2008 number of officers have been given the benefit of promotion without linking the Seniority and availability of post in the respective cadres and hence the Government order dated 29.10.2008 is confined only on the basis of the total service in the particular cadre and there 1s no necessity to give on specific post.

3. It is submitted that one Dr.R.Narasimha Murthy approached this Tribunal in OA No.995/2014 with a prayer to consider his case for promotion under the DACPS above the level of CMO with all consequential benefits. This Tribunal passed an order on 14.07.2016 allowing the said application. OA No.671/2014 filed by one Dr.Asha also came to be disposed of on 12.08.2016 in terms of the order passed in OA No.995/2014. However, the Respondents approached the Hon’ble High court of Karnataka in W.P.No.38705/2017. The Hon’ble High Court passed an order on 07.09.2017 in the said Writ Petition, remitting the matter to the Respondents for re-consideration. Thereafter, a speaking order was passed by the 2™ Respondent on 01.11.2017 in so far as Mr.Narasimha Murthy was concerned.

4. It is further submitted that on the basis of the order passed in OA No.809 to 831/2013, an order came to be passed on 29.11.2018 absorbing all the deputed employees in ESIC Model Hospital, Rajajinagar, Bengaluru with effect from 01.04.2003. In the meantime Dr.R.Narasimhamurthy approached this Tribunal in OA No.158/2018 challenging the order dated 01.11.2017. During the pendency of the said OA, Respondent No.2 passed an order dated 04.12.2020 implementing the Government order dated 29.11.2018 in respect of absorbed employees by promoting the eligible employees working as CMO in level-12 of pay matrix in Pay Band-3 to CMO (NFSG) in level-13 of pay matrix under DACP Scheme on the recommendations of the Departmental Promotion Committee. In the said order all the employees who were working in the Rajajinagar Hospital were considered for promotion with effect from 2018. The applicant had retired from service on attaining the age of superannuation on 30.09.2014. Thus, she was not considered for promotion under DACP Scheme albeit she was in service as on 01.04.2008. Thereafter, the representations submitted by the applicant seeking benefits under DACP Scheme has not yielded any result. Hence, applicant has approached this Tribunal.

5. Learned Counsel Mr.Raghavendra G Gayatri representing the applicant submitted that under the DACP Scheme, the promotion is to be granted on the basis of length of service without relating to the seniority and post. As such it is not relating to All India seniority nor institutional seniority. The respondents have given the benefit to all the employees, who are continuing to hold the post but the same is not extended to the retired employees. The same is nothing but discrimination and violative of Article 14 of the Constitution. Placing reliance on the order passed in OA No.158/2018 dated 05.02.2021 in the case of Dr.R.Narasimha Murthy, learned Counsel submitted that the applicant has to be extended with similar benefit. Learned Counsel has placed reliance on the following judgments:

1. 2021 SCC Online Kar 7907 — Employees State Insurance Corporation and another vs. Dr. Vinay Kumar and Others.

2. 2021 SCC Online CAT 15130 — Dr.Lutika Nepram Lyngdoh vs. Union of India and others.

3. (2020) SCC Online Pat 4399 — Dr.Ranjit Das vs. Union of India and others.

4. 2016 SCC Online CAT 5080 — Prashant vs. Union of India and others.

5. 2016 SCC Online HP 1088 — Union of India & Others vs. Meenu Aggarwal.

6. 2007 SCC Online Gau 625 — Dr.Geeta Das vs. Union of India and others.

6. Per contra, learned Counsel Shri N.Amaresh representing the respondents argued that the terms and conditions of the absorption which was accepted by the applicant before exercising her option for being absorbed into ESI Corporation contemplates that before absorption in the corporation, an employee will be free to opt for separate institutional seniority i.e., seniority only for a particular hospital. In the alternative, an option was left to the individuals to opt to be part of All India seniority, in which case they will be liable for All India transfer and India promotional avenues. The respondents, ESI Corporation in order to grant equal opportunity of promotion in the level of NFSG and SAG to all the absorbed Medical Officers, ESI Corporation, in its 174" meeting approved the placement of officials. | Accordingly, the absorbed Medical Officers who were in service as on 01.06.2018 were now placed in All India Seniority level and promoted as per order of ESI Corporation dated 04.12.2020. Reliance was placed on the order passed by this Tribunal in OA No.173/2022 dated 09.06.2023. Accordingly, seeks for dismissal of the OA.

7. We have carefully considered the rival submissions of the learned Counsel for both the parties and perused the material on record.

8. The issue involved herein, is no more res integra in view of the order passed by this Tribunal in OA No. 173/2022 dated 09.06.2023 (Dr.M.Srinivasaiah and others vs. Union of India and others). This Tribunal considered the identical issue involved herein and has held thus:

“7, The genesis for grant of promotions to the Medical Officers of the ESIC to the level of CMO (NFSG) was the decision taken by the ESIC in its 174th meeting held on 29.5.2018. A perusal of the minutes of this decision indicates the following points:

a) The ESIC had taken over number of ESI Scheme Hospitals from different State Government on ‘as is where is’ basis. The State Government doctors working therein, at the time of takeover, were absorbed in ESIC. These absorbed employees which included the present applicants were given one time opportunity to opt for Institutional/State or All India Seniority in terms of clause 4 of the standard terms of absorption approved by the ESI Corporation in its 142nd meeting held on 22.2.2008. The actual orders of absorption of these Doctors in ESIC were issued on 11.2.2010 vide office order 37 of 2010 (Annexure A2).

b) Those absorbed Medical Officers, who opted for Institutional/State seniority, were to be kept posted in hospital only as per their eligibility for promotions upto the level of CMO (Grade Pay 7600 as per 6th CPC). On the other side, those absorbed Medical Officers, who opted for All India Seniority, were liable to be transferred on all India basis but were eligible for promotional posts beyond the level of CMO (i.e. to the grades of NFSG & SAG) against promotional vacancies across the country.

c) There were 184 Medical Officers, who opted for Institutional/State Seniority across all taken-over hospitals. Many of these Medical Officers requested for grant of opportunity to change their option as they lost considerable promotional avenues post implementation of DACP w.e-f. 1/3/2008.

d) ESIC in its meeting held on 29.05.2018, decided to do away with the Institutional/State seniority and decided that each & every absorbed Medical Officer will be placed under All India seniority in order to have equal opportunity of being promoted to the scales of NFSG & SAG. It was further decided that, if any representations are received from any of the absorbed MOs to still place them in institutional/State seniority, the Corporation shall have no objection for their repatriation to their parent organization, if the respective State Government permits so. The employees remaining in the corporation shall be liable for All India Transfer.

e) All these absorbed employees were placed in All India Seniority w.e.f. 1.6.2018. They were granted financial benefits of DACP from 1.6.2018. However, they were also granted notional benefits of DACP from the date of their eligibility.

8. As can be seen from the minutes of the meeting, and as per the terms of the absorption of the Medical Officers, they were entitled for promotion only up to the level of CMO, if they elected to opt for Institutional/State seniority. They were eligible for promotion beyond the level of CMO 1.e. NFSG & SAG only if they opted for All India seniority. This was as per the terms and conditions of absorption offered to them at the time of their absorption under ESIC.

9. This absorption had taken place on 11.2.2010. The DACP scheme which provided for upgradation upto the level of SAG, had been notified on 29.10.2008. Hence, it is apparent that the applicants were fully aware of the DACP scheme as well as the fact that they would not be eligible for upgradation beyond CMO if they opt for Institutional Seniority at the time of their absorption.

10. The DACP scheme envisages promotion without linkage to vacancies. However, the OM dated 29.10.2008 also states that the other conditions for effecting promotions will be governed by the respective Recruitment Rules, as amended from time to time and Department of Personnel & Training instructions in this regard. It is therefore obvious that grant of DACP is subject to fulfilment of various other service conditions governing promotions. One of the conditions specified in the ESIC was that the absorbed employees had to opt for All India transfer liability if they were willing to be considered for promotion beyond the level of CMO.

11. There were, therefore, two separate class of absorbed employees created in ESIC, under its terms of absorption. The absorbed employees opting for Institutional seniority, were a separate class, since they had no liability for All India transfer, and they continued to work in the Institution where they were absorbed at that point of time. However, their promotional avenues were restricted up to the level of CMO alone. The 2nd class of employees were those who opted for All India seniority and All India transfer liability with the understanding that, along with this liability, they would also be eligible for consideration for promotion beyond CMO, to the grade of CMO (NFSG) and SAG.

12. Subsequent to the decision taken in the 174th meeting on 29.5.2018, the ESIC decided to do away this distinction and placed all the absorbed Medical Officers in All India seniority in order to grant every absorbed employee equal opportunity of being promoted to the grade of CMO (NFSG) and SAG, under the DACP scheme. It was also decided that in case any of the Medical Officers still wants to be placed under Institutional/State Seniority, they may be allowed to repatriate to their parent organisation if the respective State Government permits so. In other words, all medical Doctors in ESIC, including the absorbed employees, were placed under All India seniority with equal opportunity of promotion to the scales of CMO (NFSG) and SAG under DACP with effect from 1.6.2018. It is consequent to this decision taken by the ESIC that the applicants have been promoted to CMO (NFSG) under the DACP scheme vide impugned order dated 04.12.2020 (Annexure A-11 & A-12).

13. Since the distinction between these two classes of employees was abolished w.e.f. 1.6.2018, hence, the actual monetary benefits under DACP were also granted to those employees who had earlier opted to remain in Institutional Seniority, from that date only. All other benefits were granted notionally from the date of grant of notional promotion under DACP to the employees who were under institutional seniority and had not been granted the upgradation beyond CMO grade.

14. The applicants had opted for institutional seniority with the knowledge that without accepting All India Transfer liability, they shall not be eligible for promotion beyond the level of CMO. They become eligible for financial benefits of upgradation beyond the CMO level, only after they were included under the All India Seniority with All India transfer liability. They, therefore became eligible for the actual financial benefits with effect from the date on which they were shifted to All India Seniority with All India transfer liability. It would be discriminatory on the part of ESIC to retrospectively do away with this distinction and grant the benefit to those employees as well who had consciously opted only for Institutional Seniority and opted to forego the benefits of financial upgradation beyond CMO grade in order to avoid All India transfer liability along with such other employees who had opted for All India Seniority along with All India transfer liability and were consequently eligible for opportunity of promotion beyond the level of CMO.

15. The prayer of the applicants to grant them actual financial benefits from retrospective effect and not from the date when they were incorporated in the All India Seniority list with All India transfer liability cannot be countenanced. The distinction made between these two classes of employees is justified and cannot be considered as arbitrary under any circumstances, since the applicants had themselves made a conscious choice voluntarily at the time of absorption in ESIC. ESIC has now decided to remove this distinction w.ef. 1.6.2018. It therefore, further decided to grant notional benefits prior to 1.6.2018 under DACP, and full financial benefits subsequent to that date (1.6.2018) to these applicants who were included under All India Seniority list with All India transfer liability with effect from that date.”

9. We have perused the judgments/citations relied upon by the learned Counsel for the applicant. Division Bench of the Hon’ble High Court of Karnataka in Dr. Vinay Kumar supra, has observed that promotions under DACP Scheme are made by the Ministry without linkage to the vacancies. The Hon’ble High Court dismissed the Writ Petition observing that if there are no promotional candidate available in the department, it has to be treated as vacant post and as it was reserved for Scheduled Caste category, it has to be filled up only to a person belonging to Scheduled Caste.

10. In the case of Dr.Lutika Nepram Lyngdoh supra, CAT, Principal Bench held that the applicant would be entitled for the benefit of Time Bound Promotion under DACP Scheme as no benefit was extended for the reason that the approval of the Ministry of Health & Family Welfare was required, the appointing authority being the President of the governing body, i.e., Union Minister for Health & Family Welfare.

11. In Dr.Ranjit Das supra, the Division Bench of the Hon’ble High Court Karnataka held that no justification is found for discrimination and it is arbitrary, unreasonable and department is treating equals differently without any reasonable basis. It was in the context that the Petitioner therein had denied promotion in SAG although found fit for promotion by DPC in its meeting conveyed on 09.11.2012 and approved on 17.12.2012 by the competent authority on the ground that in cases where employees were declared unfit for promotion in previous DPC, they will be granted promotion from the date of approval by competent authority and since petitioner had already retired, he was not granted promotion whereas cases of employees for promotion in SAG was considered for the first time were promoted from due date although they had also retired much prior to 09.11.2012 and 17.12.2012.

12. In Prashant supra, the CAT, Mumbai Bench allowed the OA holding that applicant therein is entitled for counting the service rendered by him as Medical Officer in SSB Cabinet Secretariat from 18.11.1997 to 30.04.2007. The respondents were directed to reckon the service rendered as Medical Officer in SSB Cabinet Secretariat for time bound financial upgradation under DACP Scheme and extend the financial benefit within a period of three months from the date of receipt of a copy of the order.

13. In Meenu Aggarwal supra, the Hon’ble High Court of Himachal Pradesh Shimla confirmed the order passed by CAT, Chandigarh Bench in OA No.778/HP/2005 dated 30.05.2008, whereby the Tribunal allowed the OA and declared that the applicant therein is entitled to same benefits of time bound promotion at par with any other CHS Medical Officers on that date. Dr.R.Narasimha Murthy’s case, supra is also not applicable to the facts of the present case.

14. The aforesaid judgments would not lend any assistance to the applicant. Moreover, applicability of DACP Scheme to the retired employees has not been discussed in the said judgments. There is no cavil on the settled legal proposition of law. But the moot question herein whether the DACP Scheme would be applicable to the retired persons on attaining the age of superannuation, 1.e., giving effect retrospectively has not been dealt with. In our considered view, the applicant who had opted for institutional seniority at the time of absorption shall not be eligible for promotion beyond the level of CMO. Having regard to the conscious option exercised by the employees for institutional seniority, this Tribunal in OA No.173/2022 supra, has observed that it would be discriminatory on the part of ESIC to retrospectively do away with this distinction and grant the benefit to those employees as well who had consciously opted only for Institutional Seniority and further opted to forego the benefits of financial upgradation beyond CMO grade.

15. It is not in dispute that the applicant attained the age of Superannuation well before the implementation of the revised absorption policy of medical officers. |The absorbed medical officers who were in service as on 01.06.2018 were now placed in All India Seniority level and promoted as per order of ESI Corporation dated 04.12.2020. The medical officers were granted notional benefits to the scale of NFSG from the dates they were eligible for promotion and the promoted medical officers were granted financial benefits of DACP only with effect from 01.06.2018 and placed in All India seniority level. This aspect being considered in extenso, OA No.173/2022 has been dismissed confirming the decision of ESIC dated 04.12.2020. The same analogy squarely applies to the present case.

16. For the reasons aforesaid, the OA is dismissed. No order as to costs.