Finalized inter-regional transferee seniority based on overruled precedent protected prospectively; cannot be reopened per Supreme Court direction and DoP&T circular.

O R D E R

Per : Hon’ble Dr. Hukum Singh Meena, Member (A)

1.Being aggrieved by the impugned Memorandum No.37 / ESIC/ MHB/ ADM/ SL/ 2012 (Vol-III)10561-66 dated 19.09.2018 whereby the provisional gradation/seniority list of various Nursing and Paramedical staff working under ESIC was published, the applicant has filed the present Original Application under Section 19 of the Administrative Tribunal Act, 1985 seeking the following relief:-

“(i) Issue an appropriate direction or order quashing the Memorandum dated 17.12.2018 & 12/10/2020 titled as 'Gradation/seniority list in respect of Nursing Officers (Staff Nurses) working under ESIC Regional Office Gujarat - Various Hospitals Gujarat Region dt. 31/12/2020;

(ii) Issue an appropriate direction or order quashing Order dated 23.10.2018 & 12/10/2020 issued by the Respondent No. 2 disposing off the objections filed by the Applicants;

(iii) Issue an appropriate direction or order directing the Respondents No. 1 and 2 to re-draft the Gradation/Seniority List in respect of Nursing Officers (Staff Nurses) working under ESIC Regional Office Gujarat - Various Hospitals Gujarat Region as per the judgment of the Hon'ble Supreme Court in terms of the law laid down in K. Meghachandra Singh and others v. Ningam Siro and others, (2020) 5 SCC 689 and also final order dt. 24/8/2022 passed by Hon. CAT, Principal Bench, New Delhi in the case of Hans Ram Meena V/s ESIC & Ors.

(iv) Pass any other orders as this Hon'ble Tribunal may deemed fit and proper in the facts and circumstances of the present case.”

2. Brief facts of the case of the applicant are as under:-

2.1 The applicant submitted that they joined various health care Centers run and managed by the ESI HQ New Delhi in the post of Staff Nurse during the period 2009-2012. Meanwhile the respondent issued ‘Revised Inter Region Transfer Policy for Nursing/Paramedical Staff of ESIC’ [Transfer Policy]. In terms of Clasue 5 (i) a criterion for fixation of seniority for inter-regional transferees was provided, the same is extracted hereunder:-

“5. Criteria for fixation of seniority of IRT cases will be as follows:-

“The seniority of the transferee will be fixed below all the employees appointed during the year in the year in the recipient region.”

2.2 In accordance with the transfer policy for Para Medical staff, the applicant applied for Maharashtra Region and Applicant No.2 &3 came from D(M)D, New Delhi to Gujarat Region of ESIC transferred to the post of Staff and joined various hospitals of ESIC Gujarat Region and subsequently transferred and they had also joined. They have referred the Hon’ble Supreme Court judgment dated 19.11.2019 in K.Meghachandra Singh and Other vs Nigam Siro and Others (2020) 5 SCC 689 wherein Hon’ble Supreme Court overruled Union of India vs N.R.Parmar (2012) 13 SCC 340 and reiterated the well settled principle of Service Jurisprudence viz. ‘seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. The relevant extract of the judgment of Hon’ble Supreme Court in K.Megchandra Singh reproduced hereunder:-

39. The judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 (2013) 3 SCC (L&S) 711] relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 (2013) 3 SCC (L&S) 711] had incorrectly distinguished the long-standing seniority determination principles propounded in, inter alia, Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456: 1998 SCC (L&S) 1156] Suraj Parkash Gupt