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Judgment
O R D E R
HON'BLE Ms.V.RAMA MATHEW, ADMINISTRATIVE MEMBER
Hon'ble High Court of Kerala vide its judgment dated 18.10.2019 remanded the matter back with directions to consider the matter afresh through O.P.(CAT) No.192/2019 filed against the order of the Tribunal in O.A.No.180/66/2018 as the order was passed exparte under Rule 16 of the CAT (Procedure) Rules, 1987 without considering the issue on merits.
The facts briefly stated are as under : The applicants who entered service as OT Assistant under the respondent ESI Corporation, Asramam, Kollam are aggrieved by the denial of promotion to the post of OT Technician with effect from the date of their entitlement in spite of the availability of vacancies.
The applicants completed probation of one year in December, 2009 – Annexure A-1 document No.542/A/22/15/MHA/08/Adm., dated 08.02.2012 issued by the Joint Director, ESIC Asramam, Kollam establishes the above. A draft seniority list along with declaration of probation order was also declared on 23.06.2012 issued by Deputy Director, ESIC Asramam, Kollam vide Annexure A-2. As per the Recruitment Rules, OT Assistant on completion of 5 years of service is eligible to be promoted as OT Technician, a 100% promotion from OT Assistant with 5 years regular service for matriculates. It is a fact that all applicants meet this basic qualification requirement (Annexure A-3).
An RTI Application reveals that there were 19 vacancies in the cadre of OT Technicians in Kerala and only 6 candidates were eligible for promotion as on 16.12.2013. The applicants had represented for being considered for promotion and while this was under consideration the respondents had attempted to conduct direct recruitment to the post of OT Technician in December, 2015 (15 posts), which was subsequently withdrawn. No DPC were held between 2013 till 14.03.2017, on which date their claim was considered and vide Office Order No.51/2017 dated 14.03.2017 the applicants were promoted with effect from that date.
The relief claimed is for promotion with effect from the date they became due as in other regions in ESI Corporation, which did not happened in Kerala region alone. The main argument advanced for this claim is that administrative delay in conduct of DPC cannot recoil to the disadvantage of the employees.
It is apparent from the facts on record that the DPC was delayed due to delay in finalization of seniority list and it is also a fact that the delay was clearly attributable to litigation which in fact went upto the Hon'ble Supreme Court where the matter was finally settled in 2017 and in fact the DPC was held immediately on finalization of the issue in the Hon'ble Supreme Court and promotion orders were issued promptly thereafter. The request is for a review DPC to allow promotion with effect from an earlier date. The fact of the matter is that on the date the applicants' claim promotion, no seniority list existed and it is not a delay which is attributable to either side. The DoP&T vide O.M.No.22013/1-97-Estt.(D) dated 13.04.1998 had enumerated some of the situations in which Review DPC is required to be held. These situations are :
“(a)Non-reporting of vacancies due to error or omission (ie., though the vacancies were available at the time of holding of DPC meeting, these were not reported to the DPC). This leads to injustice to the officers concerned by artificially restricting the zone of consideration; or
(b)Where eligible persons were omitted to be considered; or
(c)Where ineligible persons were considered by mistake; or
(d)Where the seniority of a person was revised with retrospective effect resulting in a variance of seniority list placed before the DPC; or
(e)Where some procedural irregularity was committed by a DPC; or
(f)Where adverse remarks in the C.Rs were toned down or expunged after the DPC had considered the case of the officer.
These instances are illustrative and not exhaustive.”
A review DPC can be conducted only on situations which is enumerated in the aforesaid O.M dated 13.04.1998, which grounds do not subsist here. It is the established legal position that there is no vested right for retrospective promotion as held by the Hon'ble Supreme Court in the case of Union of India vs. K.K.Vadhere & Ors., 1989 Supp. 92) SCC 625. In the case of Union of India & Anr. vs. Manpreet Singh Poonam Etc., 2022 LiveLaw (SC) 254 the Hon'ble Supreme Court has held that the mere existence of a vacancy per se will not create a right in favour of an employee for retrospective promotion.
Here, there is no argument that all the conditions necessary for prompt conduct of DPC existed and it was mere administrative laches which resulted in non conduct of DPC. It is in fact very clear that there was a seniority dispute and the moment the matter attained finality, the DPC was conducted and promotion orders were issued. Hence, it appears that there is no ground to direct retrospective promotion. Accordingly, the O.A is dismissed. No order as to costs.
List of Annexures in O.A.No.180/00066/2018
Annexure A-1 – A copy of the proceedings No.542/A/22/15/MHA/08/Adm dated08.02.2012 issued by the Joint Director, ESIC Asramam, Kollam.
Annexure A-2 – A copy of the Order No.542/A/29/15/MHA/PPR/2012 datd 23.06.2012 issued by the Deputy Director ESIC Asramam, Kollam.
Annexure A-3 – A copy of the relevant page of the Recruitment Rules for the post OT Technician under the respondents published in the Gazette of India dated 21.05.2011.
Annexure A-4 – A copy of the representation dated 23.12.2013 submitted by the 3rd applicant to the Medical Superintendent, Asramam, Kollam.
Annexure A-5 – A copy of the Order No.543-A.22/11/1/2012-ADM dated 01.01.2014 issued by the Deputy Director in ESIC Asramam, Kollam.
Annexure A-6 – A copy of the online RTI Query dated 25.08.2017.
Annexure A-6(a) – A copy of the RTI Reply dated 19.12.2017 issued by the Deputy Director.
Annexure A-7 – A copy of the job advertisement to various posts under the respondents extracted from an online Job Portal.
Annexure A-8 – A copy of the representation dated 14.12.2015 submitted by the 1st applicant and 3 others.
Annexure A-9 – A copy of the representation dated 13.05.2016 submitted by the 3rd applicant.
Annexure A-10 – A copy of the Circular No.A-33(12)3/2010 Med-VI dated 04.10.2012 issued by the Joint Director, ESIC.
Annexure A-11 – A copy of the Office Order No.51 of 2017 dated 14.03.2017 issued by the 4th respondent.
Annexure A-12 – A copy of the Order issued by the Employees State Insurance Corporation (Ministry of Labour & Employment), Government of India with No.A/33/14/2/2004/Med-4/DPC dated 28.02.2022.
Annexure A-13 – A copy of the Order No.218 of 2021 issued as per Letter No.54-A.22 15.10.2021-Admn dated 26.07.2021 issued on behalf of the Deputy Director, ESIC.
Annexure R-1(A) – A copy of the order dated 04.07.2016 passed by the Hon'ble Supreme Court in SLP No.10471-10472/2016.
Annexure R-1(B) – A copy of the draft seniority list vide Memorandum No.542/A/24/13/15(Adm) dated 19.12.2016.
Annexure R-1(C) – A copy of the final seniority list vide Memorandum No.542/A/24/13/12(Adm) dated 09.02.2017.
Annexure R-1(D) – A copy of the Job Cards for the two posts, ie., OT Technician and OT Assistant respectively.
Annexure R-1(E) – A copy of the O.M.No.22013/1-97-Estt.(D) dated 13.04.1998 issued by DoP&T.
Annexure R-1(F) – A copy of the O.M.No.22011/7/86-Estt.(D) dated 03.07.1986 issued by the DoP&T, Government of India, Ministry of Personnel, Public Grievances and Pensions.
Annexure R-1(G) – A copy of the O.M.No.22011/1/2008-Estt.(D) dated 11.11.2010 issued by the DoP&T, Government of India, Ministry of Personnel, Public Grievances and Pensions.