TMI Blog2022 (1) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - the contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The revised seniority list of the Teaching Cadre at the appellant corporation should reflect the promotions of the contesting respondents in accordance with the ESIC Recruitment Regulations 2015 and not the DACP Scheme - Appeal allowed. - Civil Appeal No. 152 of 2022 - - - Dated:- 20-1-2022 - Justice Dr Dhananjaya Y Chandrachud and Justice A S Bopanna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 by holding that: (i) Since the contesting respondents were recruited before the ESIC Recruitment Regulations 2015 came into effect, they would get the benefit of the DACP Scheme; (ii) The DACP Scheme has statutory effect under Section 17 of the ESI Act. The ESIC Recruitment Regulations 2015 have departed from the DACP Scheme without seeking the prior approval of the Central Government; and (iii) Counsel for the appellant conceded that the appellant would implement the DACP Scheme and the ESIC Recruitment Regulations 2015 do not apply. B Submissions 6 Mr Santhosh Krishnan, appearing on behalf of the appellant has urged the following submissions: (i) The appellant is an autonomous statutory corporation incorporated under the ESI Act. It is within the administrative control of the Ministry of Labour and Employment of the Government of India; (ii) Section 97 of the ESI Act confers power on the appellant to frame its own regulations. The terms and conditions of service of Assistant Professors are governed by the ESIC Recruitment Regulations 2015. These regulations stipulate that a minimum of five years of qualifying service as Assistant Professor is mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the event of an inconsistency or conflict between a statutory provision and an executive instruction, the former must be given effect. This Court in Union of India v. Ashok Kumar Aggarwal (2013) 16 SCC 147 has held that government-issued memorandums or executive instructions can be used only to supplement the statutory rules but not to supplant them; (ix) The appellant s counsel mistakenly made a concession before the CAT when they stated that the ESIC Recruitment Regulations 2015 would not govern the matter. However, this incorrect concession does not amount to estoppel against statutory regulation. This has been held by this Court in State of Uttar Pradesh v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti (2008) 12 SCC 675; (x) The High Court has incorrectly recorded that the ESIC Recruitment Regulations 2015 were issued without approval from the Central Government. The preamble to the ESIC Recruitment Regulations 2015 explicitly states that the regulations were made after approval of the Central Government; (xi) The submission of the contesting respondents that the advertisement issued by the appellant contemplated the application of the DACP Scheme, is irrelevant to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government, as contemplated under Section 17(2)(a) of the ESI Act; (vi) After the contesting respondents instituted an application before the CAT, the Assistant Director (Med), CSIC, Headquarter Office addressed a letter to the Medical Superintendent of the ESIC Model Hospital, Rajaji Nagar, Bangalore on 26 December 2017 stating that a proposal for considering promotion under DACP Scheme . is under process ; (vii) The appellant admitted before the CAT and even in its writ petition before the High Court that the DACP Scheme is applicable to its employees and that it is willing to be bound by the DACP rules. The argument that the DACP Scheme is inapplicable to the contesting respondents is being raised for the first time before this Court; (viii) The DACP Scheme has statutory force under Section 17 of the ESI Act. The DACP Scheme was made on 29 October 2008, before the enforcement of the ESIC Recruitment Regulations 2008 on 2 May 2009. Since the ESIC Recruitment Regulations 2008 were issued without approval of the Central Government mandated under Section 17(2)(a) of the ESI Act, they do not override the DACP Scheme; (ix) The ESIC Recruitment Regulations 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme to all doctors in employment of the Central Government. The recommendations were accepted by the Union Ministry of Health and Family Welfare through an Office Memorandum dated 29 October 2008 which extended the DACP Scheme to Medical and Dental Doctors in the Central Government. In continuation of the Office Memorandum, the Government of India issued another Office Memorandum dated 29 October 2008 detailing promotion under DACP in various cadres under the Ministry of Health and Welfare. The Scheme enabled promotion from the post of Assistant Professor to Associate Professor after two years of service: B. Teaching Sub Cadre Promotions under the DACP Scheme No of Years of regular works required for promotion From To Assistant Associate Professor 2 years in Grade Professor (Grade Pay 6600 in PB-3) (Grade Pay 7600 in PB-3) Pay of Rs. 6600 in PB-3 including service rendered in the pre-revised scale of Rs 10000-15200 Associate Professor (Grade Pay 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me regulations. The regulations are deemed to have the same effect as statutory provisions: 97. Power of Corporation to make regulations.-(1) The Corporation may, subject to the condition of previous publication, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation and for carrying into effect the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely- [ ..] (xvi) the appointment of medical practitioners for the purposes of this Act, the duties of such practitioners and the form of medical certificates; [ ..] (xxi) the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of the officers and servants of the Corporation other than the [Director General and Financial Commissioner; [ ..] (xxiii) any matter in respect of which regulations are required or permitted to be made by this Act. (2-A) The condition of previous publication shall not apply to any regulations of the nature specified in cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs done or omitted to be done before such supersession, the Employees' State Insurance Corporation hereby makes, with the approval of the Central Government, the following regulations for regulating the method of recruitment to the medical teaching faculty posts in the Employees' State Insurance Corporation's medical colleges, namely:- (emphasis supplied) 13 The ESIC Recruitment Regulations 2008 and ESIC Recruitment Regulations 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. A Constitution Bench in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421 considered the regulations framed by several statutory authorities considered as State within the terms of Article 12. Chief Justice A N Ray held that the regulations have the same effect of law and bind the statutory authorities: 21. The characteristic of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules and regulation must specify the source of the rule and regulation making authority. To illustrate, rules are alway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to comply with the terms and conditions laid down in the regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the regulations shall amount to violation of the regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid. 15 Respondent 3 to 25 joined the service of the ESIC Model Hospital, Rajajinagar, Bengaluru as Assistant Professors on different dates, between 07 February 2014 and 26 June 2016. On completing two years in the post of Assistant Professor, Respondent 3 to 25 made representations to the appellant seeking promotion to the grade of Associate Professor, claiming the benefit of the DACP Scheme. The Preamble to the ESIC Recruitment Regulations 2015, recites that the prior approval of the Central Government, as necessitated by Section 17(2) of the ESI Act was duly sought. In the event of a conflict between an executive instruction, an office memorandum in this case, and statutory regulations the latter prevail. A Constitution Bench in Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910 considered the applicability of the letters issued by the Government of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia v. DG of Civil Aviation [(2011) 5 SCC 435 : AIR 2011 SC 2220] .) (emphasis supplied) 17 In P D Aggarwal v. State of U.P. (1987) 3 SCC 622 a two judge Bench of this Court declined to grant primacy to an Office Memorandum issued by the Government of Uttar Pradesh which purportedly amended the method of recruitment of Assistant Civil Engineers in the U.P. Public Service Commission without amending the relevant regulations. The Court held: 20. The office memorandum dated December 7, 1961 which purports to amend the United Provinces Service of Engineers (Buildings and Roads Branch) Class II Rules, 1936 in our opinion cannot override, amend or supersede statutory rules. This memorandum is nothing but an administrative order or instruction and as such it cannot amend or supersede the statutory rules by adding something therein as has been observed by this Court in Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910 : (1968) 1 SCR 111 : (1968) 2 LLJ 830] . Moreover the benefits that have been conferred on the temporary Assistant Engineers who have become members of the service after being selected by the Public Service Commission in accordance with the service rules are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified by reasons. Administrative instructions if not carried into effect for good reasons cannot confer a right. (See P.C. Sethi v. Union of India [(1975) 4 SCC 67 : 1975 SCC (L S) 203 : (1975) 3 SCR 201] .) . (emphasis supplied) 19 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. 20 The advertisements issued by the appellant mentioned that the DACP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the statutory rules, it is the statutory rules which take precedence . 22 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. In Rajasthan Public Service Commission v. Chanan Ram (1998) 4 SCC 202 a two-judge Bench of this Court held that an earlier advertisement becomes infructuous after a subsequent amendment to the service rules: 13. Under these circumstances, therefore, it is difficult to appreciate how the Division Bench of the High Court could persuade itself in agreeing with the submission of the learned counsel for the respondent-writ petitioner that despite this change of cadres and the provision for recruitment on new posts the old advertisement of 5-11-1993 Annexure P-1 seeking to consider the candidature of applicants for erstwhile 23 advertised vacancies in the posts of Assistant Directors (Junior) in the Agricultural Marketing Service of the State of Rajasthan would still be pursued further and recruitment should be effected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it. (emphasis supplied) 24 In Himalayan Coop. Group Housing Society v. Balwan Singh (2015) 7 SCC 373 a three-judge Bench of this Court clarified the law of agency with respect to client-lawyer relationships. The Court held that while generally admissions of fact by counsel are binding, neither the client nor the court is bound by admissions as to matters of law or legal conclusions: 32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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