Mrs. Kavya B & Ors. vs The Union Of India & Ors.

PER: JUSTICE S. SUJATHA, MEMBER (J)

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

Facts in brief are that the applicants are graduates in Diploma course/Bachelor degree in Medical Laboratory Technology (MLT) from the recognized college of Government of Karnataka. After successful completion of MLT course, they have been appointed as Laboratory Technicians in respondent organisation on contract basis in the various departments of ESI Corporation. It is the contention of the applicants that albeit the requirement for direct recruitment to the post of Laboratory Assistant mandated educational qualification of a technical nature i.e., requirement of a Diploma in MLT, the earlier recruitment rules provided a promotional avenue to the post of Laboratory Assistants from the cadre of Nursing Orderly/Stretcher Bearer/Attendant. No professional qualification was mandated for the promotional quota. A private person named Shri Dilip Kumar R., aggrieved by the Notification dated 08.06.2018 issued by the official respondents for holding Departmental Promotion Committee (DPC) for filling up the post of Laboratory Assistant by promotion challenged the same in OA No. 1692/2018 before this Tribunal. The said OA was allowed vide order dated 21.06.2019 directing the official respondents to take final decision in respect of the proposed amendment in the Recruitment Rules. In the Writ Petition No. 3343/2020 proceedings before the Hon'ble High Court of Karnataka filed by the official respondents against the said order, Hon'ble High Court modified the order dated 21.06.2019 and permitted the official respondents to fill up the post which is available, by holding a DPC vide its order dated 30.07.2021. However, the official respondents were directed to take prime decision in respect of amendment to the Recruitment Rules. Pursuant to the said order and the judgment passed by the other judicial forums, the Ministry of Labour and Employment, Employees’ State Insurance Corporation (ESIC) modified the Recruitment Rules and published the same in the Gazette of India dated 08.01.2022. In the meanwhile, vide order dated 01.12.2021 vide Office Order No. 97 th (MA) of 2021, 4 respondent has ordered the promotion from the cadre of Nursing Orderly to the cadre of Laboratory Assistant on the recommendations of the DPC meeting to the respective hospitals and subsequently, as per the direction of the Regional Director, said order was kept in abeyance to the extent of promotion till further orders. It is the grievance of the applicants that though Recruitment Rules were modified as per the Gazette Notification dated 08.01.2022, the official respondents recruited the vacant post(s) by promoting the non-technical staff to Laboratory Assistant ignoring the applicants who were working as Laboratory Assistants (Outsourced) employees on contractual basis in ESI hospitals having required qualification. Hence, this OA.

Learned counsel Smt. M.V. Thanuja representing the applicants submitted that the Ministry of Labour and Employment (ESIC) modified the Recruitment Rules and published the same in the Gazette of India dated 08.01.2022. Since the post of Laboratory Assistants is a technical post of scientific nature, the recruitment of candidates from non-technical cadre of Nursing Orderly/Stretcher Bearer and Attendant by way of promotion to the post of Laboratory Assistants is completely illogical and life threatening to the patients. The recruitment drive initiated by the official respondents through DPC even after modification of Recruitment Rules is in violation of the said Rules. The applicants are working as Laboratory Assistants on contractual basis having required qualification. Hence, the applicants’ case requires to be considered for the post of Junior Medical Laboratory Technologists rather than promoting the Nursing Orderly staff through DPC. Learned counsel has placed reliance on the judgment of the Hon'ble Apex Court in Civil Appeal No. 9746/2011 DD: 20.05.2022 (State of Himachal Pradesh and Ors. vs. Raj Kumar and Ors.) to contend that the legal principles in Y.V. Rangaiah vs. J. Sreenivasa Rao reported in (1983) 3 SCC 284 that "the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules" has been overruled. As such, the rights and obligations of persons serving the Union and the States are to be sourced from the rules governing the services.

Learned counsel Shri N. Amaresh representing Respondents 1 to 4 submits that the Respondent No. 3 issued OM dated 02.12.2022 to conduct DPC for promotion to the post of Laboratory Assistant at the level of the respective Appointing Authorities as per the Recruitment Regulations for the post of Laboratory Assistant published vide Government of India Gazette dated 21.05.2011 in respect of vacancies that arose upto 07.01.2022 i.e., prior to the notification of the revised Recruitment Regulations as per the Government of India Gazette dated 08.01.2022. It is submitted that instructions were given in the said OM that the promotion orders or compliance of promotion orders already issued against any DPC for promotion to the post of Laboratory Assistant, already held in pursuance to the said OM dated 23.11.2021, but withheld as per directions of Headquarters Memo dated 24.12.2021, may also be issued/done. The gazette published dated 25.01.2011, clearly mentions that the method of recruitment for the post of Laboratory Assistant is 50% by direct recruitment and 50% by promotion, failing which by direct recruitment. Promotion to the post of Laboratory Assistant from Nursing Orderly/Stretcher Bearer/Attendant with six years service for Matriculate and eight years regular service for Non-matriculates. Hence, as per the Gazette dated 21.05.2011, Respondent No. 3 issued Office Memorandum dated 02.12.2022 regarding conducting of DPC for promotion to the post of Laboratory Assistant at the level of the respective Appointing Authorities as per the Recruitment Regulations. Inviting the attention of the Bench to the order passed by this Tribunal-Cuttack Bench in OA No. 102/2025 dated 27.02.2025 (Puspak Nayak and Anr. vs. Union of India and Ors.), learned counsel submitted that the applicants are not aggrieved persons to invoke the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act. The applicants are outsiders and have no vested right to challenge the action initiated by the respondents to hold DPC for the post of Laboratory Assistant as a one-time measure, which is a policy decision. Learned counsel submitted that applications were invited from the eligible candidates for recruitment of 13 posts of Junior Medical Laboratory Technologists (JMLT) vide Notification dated 29.09.2023 (Annexure R15), wherein the closing date of online application was 30.10.2023. Similarly, yet another recruitment Notification dated 07.01.2025 was issued mentioning the closing date as 31.01.2025. But for the reasons best known to the applicants, they have not participated in the said recruitment proceedings. The Respondent No. 4 vide OM No. 60 (MA) of 2022 dated 15/16.12.2022 has ordered to revoke the abeyance order issued vide Office Order dated 27.12.2021.

Placing reliance on the order of the Hon'ble High Court of Karnataka in Writ Petition No. 3343/2020 dated 30.07.2021, learned counsel submitted that the Hon'ble Court has held that the respondents herein shall be free to fill up the post which is available by way of holding a DPC meeting thereby promoting a departmental candidate and Respondent No. 1 therein Shri Dilip Kumar R. who was totally a stranger to the department shall be free to try his luck in case any advertisement is issued pursuant to the amendment in the Recruitment Rules. As such, the applicants not having participated in the advertisement issued pursuant to the amendment in the Recruitment Rules have no locus standi to file this OA. Accordingly, seeks for dismissal of the OA.

Learned counsel Shri B.S. Venkatesh Kumar representing the Private Respondent Nos. 5 to 12, 16 & 18 submits that these respondents were promoted by office order dated 23.12.2022 after the DPC was held on 21.12.2022 in respect of vacancy year 2021 upto 07.01.2022. The revised Recruitment Rules came into effect from 08.01.2022. Immediately after receipt of promotion order many of these respondents got themselves relieved and reported to the respective place of posting. Unfortunately the Rajajinagar Hospital has issued Office Memorandum dated 28.12.2022 intimating that the Competent Authority has directed that the place of posting order issued in pursuance of Office Order No. 876/2022 and the Corrigendum dated 27.12.2022 be kept in abeyance due to administrative exigencies. By Office Memorandum dated 23.01.2023, their promotion came to be kept in abeyance. The applicants have no locus standi to prefer the OA. Thus, adopting the arguments advanced by the learned counsel for the official respondents, learned counsel seeks for dismissal of the OA.

We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.

As per the Recruitment Regulations gazetted on 21.05.2011, the method of recruitment for the post of Laboratory Assistant is 50% by Direct Recruitment and 50% by promotion, failing which by Direct Recruitment. Promotion to the post of Laboratory Assistant from Nursing Orderly/Stretcher Bearer/Attendant with six years regular service for matriculate and eight years regular service for non-matriculate. Respondent No. 3 issued Office Memorandum dated 02.12.2022 regarding conducting of DPC for promotion to the post of Laboratory Assistant. Employees’ State Insurance Corporation, Junior Medical Laboratory Technologist (Group ‘C’ Post) Recruitment Regulations, 2022 has been notified/published in the Gazette of India on 08.01.2022. In terms of the said amended regulations, which comes into force on the date of their publication in the official gazette, method of recruitment is by Direct Recruitment. It is based on the said amended Recruitment Regulations, 2022 the applicants are challenging the action of the official respondents in holding DPC for the post of Laboratory Assistant. It is not in dispute that the applicants were working as Laboratory Assistants on contract basis and now terminated are claiming to consider their candidature for the posts of Junior Medical Laboratory Technologist inter alia challenging the selection of the private respondents through DPC.

At the outset, the locus standi of the applicants questioned by the respondents requires to be addressed. Identical issue had come up before the Cuttack Bench of this Tribunal in OA No. 102/2025, supra. The same Office Memorandum dated 02.12.2022 (Annexure 12) impugned herein was challenged before the Cuttack Bench. In paras 8 and 9, Cuttack Bench has observed thus:

Referring to Section 19 of the Administrative Tribunals, Act, it is observed thus:

Further, referring to the various judgments it has been held that the applicants therein have no locus standi to file the OA before the Tribunal in the garb of Public Interest Litigation.

No vested right is created on the applicants merely for the reason that they were working as Laboratory Assistants on contract basis in ESIC to get appointed as Junior Medical Laboratory Technologists. In service jurisprudence, it is settled law that it is for aggrieved person to assail the legality of the offending action. Third party has no locus standi to canvas the legality or correctness of the action. The applicants have no locus standi to challenge the OM dated 02.12.2022 which is said to have been issued in compliance of the order dated 04.08.2022 passed by this Tribunal, Principal Bench to conduct DPC for promotion to the post of Laboratory Assistant at the level of the respective Appointing Authorities as per the Recruitment Regulations of the post of Laboratory Assistant published vide Gazette dated 21.05.2011 in respect of vacancies arose upto 07.01.2022 i.e., prior to the date of notification of the revised Recruitment Regulations dated 08.01.2022. In OA No. 2865/2021 dated 04.08.2022 before the Principal Bench of this Tribunal, liberty is reserved to the applicants therein to avail the remedies, if any, against Recruitment/Regulations-2022, if so advised, in accordance with law as the applicants therein have not pressed the reliefs inasmuch as the appointments/recruitments made for Medical Laboratory Staff through DPC pursuant to the order dated 23.11.2021 in view of the Notification dated 03.01.2022 i.e., Recruitment Regulations gazetted on 08.01.2022. In the amended Recruitment Regulations for the post of “Laboratory Assistant” change in nomenclature is found as "Junior Medical Laboratory Technologist" as could be seen from the letter dated 15.06.2022 issued by the Assistant Director (MA) (Annexure A23). Office Order 62 (MA) of 2022 dated 23.12.2022 deals with the promotion of the officials mentioned therein from the cadre of Nursing Orderly to the cadre of Laboratory Assistant on regular basis for the vacancy year 2021 upto 07.01.2022 on the recommendation of the DPC meeting held on 21.12.2022 and posting them to the Hospital/Medical College shown against their names. But we having already held that the applicants have no locus standi to challenge the impugned orders, the OA partakes the character of Public Interest Litigation which is not maintainable under the service jurisprudence.

There is no cavil on the legal proposition that the statement in Y.V. Rangaiah, supra, that "the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules" does not reflect the correct proposition of law governing services under the union and the states as held by the Hon'ble Apex Court in Raj Kumar and Ors., supra, overruling Y.V. Rangaiah, supra.

In the present case, the policy decision relies on older rules to fill backlog vacancies as a one-time relaxation/transitional measure benefitting regular in-service candidates thereby, contractual tenure of the contractual employees does not automatically translate into public cadre rights.

13A. The applicants have not accrued any right in the post of Laboratory Assistant merely working on contract basis and on their removal from service on contract basis certainly they become strangers to the department. Even otherwise, there being no employee and employer relationship between the applicants and the respondents, as a one-time measure, based on the policy decision, if the private respondents are promoted as Laboratory Assistants/JMLTs, their efficiency cannot be questioned by the applicants in the garb of their termination from service.

It is significant to note that the applicants have not participated in the recruitment proceedings pursuant to the advertisement issued after amending the Recruitment Rules. It is observed by the Hon’ble High Court in Writ Petition No. 3343/2020, supra, that the Respondent No. 1 therein/original petitioner who is totally a stranger to the department is free to try his luck in case any advertisement is issued pursuant to the amendment in the Recruitment Rules. No such an attempt has been made by the applicants herein to participate in the recruitment process advertised on 29.09.2023 and 07.01.2025 pursuant to the amended Recruitment Rules, 2022 published in the Gazette of India, dated 08.01.2022.

Unless the applicants participate through recruitment mode provided in the Recruitment Regulations, issuing a direction to the respondents to consider the educational qualification of the applicants for the post of JMLT does not arise.

For the reasons aforesaid, OA lacks merit, and accordingly, stands dismissed.

No order as to costs.