ESIC Recruitment Regulations 2015: Respondent 3 to 25 joined the service of the ESIC Model Hospital as Assistant Professors on different dates, between 07 February 2014 and 26 June 2016 – The advertisements issued by the appellant mentioned that the DACP Scheme would be applicable for its recruits – On completing two years in the post of Assistant Professor, Respondents 3 to 25 made representations to the appellant seeking promotion to the grade of Associate Professor, and instituted proceedings claiming the benefit of the DACP Scheme – CAT directed the appellant to consider their case under DACP scheme – Appellant filed writ petition challenging the order of CAT – High Court dismissed the writ petition – On appeal, held: On the dates when the contesting respondents joined the service of the appellant, their promotions were governed by the ESIC Recruitment Regulations 2008 which came into effect on 2 May 2009 and mandated four years of qualifying service for promotion from Assistant Professor to Associate Professor – When the contesting respondents had completed two years of service, they were governed by the ESIC Recruitment Regulations 2015 which came into effect on 5 July 2015 and mandated five years of qualifying service for promotion from Assistant Professor to Associate Professor – Thus, the DACP Scheme facilitating promotion on the completion of two years of service is not applicable to the contesting respondents, when the regulations have a statutory effect that overrides the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme – The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare – The concession by the counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court – There can be no estoppel against a statute or regulations having a statutory effect.
Service law: Appointment/recruitment – It is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail.
Allowing the appeal, the Court
HELD: 1. The ESIC Recruitment Regulations 2008 were issued by the ESIC in the exercise of its powers under Section 97(1) and Section 17(3) of the ESI Act. These regulations introduced the cadre of Specialist (Teaching) in the ESIC and governed all appointments to the teaching faculty posts in ESIC Medical Colleges. The ESIC Recruitment Regulations 2008 embodied a requirement of four years’ service as Assistant Professor for promotion as an Associate Professor. The ESIC Recruitment Regulations 2015 which were made on 5 July 2015 stipulated a requirement of five years’ service as Assistant Professor for promotion to the post of Associate Professor. The preamble of the ESIC Recruitment Regulations 2015 notes that these regulations were to supersede the ESIC Recruitment Regulations 2008 and were made with the approval of the Central Government. The ESIC Recruitment Regulations 2008 and 2015 have statutory effect by virtue of Section 97(3) of the ESI Act. It is settled law that regulations framed by statutory authorities have the force of enacted law. [Paras 12, 13][387-G-H; 388-A-B, F] Sukhdev Singh v. Bhagatram Sardar Singh Raghuvansh (1975) 1 SCC 421 : [1975] 3 SCR 619; Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910 : [1968] SCR 111; Himalayan Coop. Group Housing Society v. Balwan Singh (2015) 7 SCC 373 : [2015] 4 SCR 616 – followed.
Pepsu Road Transport Corporation, Patiala v. Mangal Singh and Others (2011) 11 SCC 702 : [2011] 6 SCR 564; Union of India v. Majji Jangamayya (1977) 1 SCC
606 : [1977] 2 SCR 28 – referred to.
2. On the dates when the contesting respondents joined the service of the appellant- 07 February 2014 till 26 June 2016 - their promotions were governed by the ESIC Recruitment Regulations 2008 which came into effect on 2 May 2009 and mandated four years of qualifying service for promotion from Assistant Professor to Associate Professor. When the contesting respondents had completed two years of service, they were governed by the ESIC Recruitment Regulations 2015 which came into effect on 5 July 2015 and mandated five years of qualifying service for promotion from Assistant Professor to Associate Professor. Thus, the DACP Scheme facilitating promotion on the completion of two years of service is not applicable to the contesting respondents, when the regulations have a statutory effect that overrides the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme. [Para 19][393-F-H]
3. The advertisements issued by the appellant mentioned that the DACP Scheme would be applicable for its recruits. However, it is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail. The contesting respondents urged that the advertisements indicated the applicability of the DACP Scheme before the ESIC Recruitment Regulations 2015 were issued. However, a subsequent amendment to recruitment regulations would override the conditions prescribed in the advertisement. [Paras 20, 22] [394-A-B; 395-B]
Malik Mazhar Sultan v. U.P. Public Service Commission (2006) 9 SCC 507 : [2006] 3 SCR 689; Ashish Kumar v. State of Uttar Pradesh (2018) 3 SCC 55 : [2018] 1 SCR 695; Rajasthan Public Service Commission v. Chanan Ram (1998) 4 SCC 202 : [1998] 1 SCR 1099 – referred to.
4. The contesting respondents submitted that the appellant is estopped from urging that the DACP Scheme is not applicable to the Teaching Cadre at the ESIC since they have taken this stance before the CAT and in its writ petition before the High Court. While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect. [Para 23][396-A-B] Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884: [1963] SCR 208 – referred to.
5. The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the Counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court. [Para 26][398-B-C]
C Sankarnarayanan v. State of Kerala (1971) 2 SCC
361 : [1971] 0 Suppl. SCR 654; Union of India v. Ashok Kumar Aggarwal (2013) 16 SCC 147 : [2013] 12 SCR 629; State of Uttar Pradesh v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti (2008) 12 SCC 675 : [2008]
7 SCR 536; Raminder Singh v. State of Punjab (2016)
16 SCC 95 : [2016] 5 SCR 310; Y V Rangaiah v. J Sreenivasa Rao 1983 (3) SCC 284; State of UP v. Mukesh Narain (2013) 4 SCC 169 : [2013] 4 SCR 534; B L Gupta v. MCD (1998) 9 SCC 223; P D Aggarwal v. State of U.P. (1987) 3 SCC 622 : [1987] 3 SCR 427; Director of Elementary Education, Odisha v. Pramod Kumar Sahoo (2019) 10 SCC 674 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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