Employees transferred on own request to new region under IRT policy with undertaking forego original seniority and rank junior-most, per regional cadre rules; DoPT absorption guidelines inapplicable to direct recruits.

O R D E R

Per: Mr. Braj Mohan Agrawal, Administrative Member

Applicants are Nursing Officers, working in ESIC Hospitals in Kerala who were initially recruited as Staff Nurses in different States, other than Kerala and later on took inter regional transfer and joined ESIC hospitals in Kerala on their own request in terms of Inter Regional Transfer Policy (IRT), Annexure A-6 and Annexure A-7. The applicants submit that in response to Annexure A-1 notification and an earlier circular, the applicants submitted their willingness and request for transfer to the Kerala region. Their Inter Regional Transfer requests were granted by respondents. However, as per the then existing practice the Respondent No.1 considered all such transfers as one on 'own request'. Though the migrants from State Service have succeeded in getting their seniority as a result of Hon'ble High Court of Kerala decision in OP(CAT) No. 17, 51, 157 and 183 of 2020 (Annexure A-2) Applicants who are from the same organisation, i.e. ESIC were placed en-masse at the bottom most position in the seniority list of Staff Nurses in the particular year of Kerala region. This in turn has resulted in loss of many years of seniority. Such arbitrary assignment of seniority by placing the applicants en-masse below the junior most recruits of that particular year (in receiving region i.e. Kerala) has efffectively sabotaged the right/chance of applicants from reaching the eligibility/zone of consideration for promotions.

2. The applicants contend that they were prompted to apply for the transfers as the Respondent Corporation has invited applications from the eligible candidates for Inter Regional Transfers(IRT). When their applications were accepted by ESIC, all applicants on inter regional transfer were straightway absorbed in their posts of Staff Nurses in the new region, Kerala. No cadre change, except the change of region is envisaged here. They were not on any adhoc or deputation service in Kerala. In other words,it is a case of transfer on absorption. As such, and based on the DoPT guidelines contained in Annexure A- 3, they should have been granted the seniority w.e.f. their original date of joining in the cadre, no matter to which region they were originally recruited/joined or later transferred

3. The applicants further contend that according to the latest DoPT order/policy of 2010 (Annexure A-3, para 3.5), the employees so transferred from one region to another do not have to lose their original seniority. Their seniority is to be counted from the date of their original appointment/joining in the cadre irrespective of the region from/to which the transfer has taken place. Post 2010, DoPT has evolved a view that there is an explicit public interest in every transfer, even if it is made on own request. Thus, the part of Inter Regional Transfer policies of ESIC beyond 2010, dealing with seniority of transferees to a new region, is not in conformity with the DoPT directives. Even the Hon'ble High Court of Kerala (Annexure A2) has held that the DOPT directives of 2010 on seniority should find its relevance while deciding inter-se seniority and other related matters. The Respondents have overlooked these guidelines of DoPT, as a result, the applicants have lost their seniority. They are eligible for seniority from the date of their original entry into the cadre.

4. Aggrieved, by the final seniority list date 08.11.2021 (Annexure A-5), which assign