Full Text
HIGH COURT OF DELHI
Date of Decision: 10.07.2025
RAMESH CHANDER .....Petitioner
Through: Mr.Sudarshan Rajan and Mr.Hitain Bajaj, Advs.
Through: Mr. Ashok Verma, Adv.
HON'BLE MS. JUSTICE RENU BHATNAGAR NAVIN CHAWLA, J. (ORAL)
JUDGMENT
1. This petition has been filed by the petitioner challenging the Order dated 31.05.2019 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the, ‘Tribunal’) in O.A. No. 317/2018, titled Ramesh Chander v. The Director General, E.S.I. Corporation & Ors., dismissing the O.A. filed by the petitioner herein.
2. The petitioner had filed the above O.A. praying for the following reliefs: “(a) impugned order dated 20.03.2017 rejecting the representation of the applicant may kindly be quashed. (b) directions may kindly be issued to the respondents that the applicant may be granted pension as per old pension scheme applicable before 01.01.2004.
(c) direction may kindly be issued to the respondents that the 50% period of service served as daily wager on the post of electrician be counted for the purpose of pensionary benefits from 06.01.1991 to 27.07.2004 i.e. from date of joining to till date of regularization of service of the applicant.”
3. To give a brief background of the facts in which the present petition arises, the petitioner was appointed as a daily wage electrician in the Employees State Insurance Hospital (ESI) in 1991. He filed an application before the learned Tribunal, being O.A. No.1481/1991, seeking regularization.
4. The learned Tribunal, by its Order dated 08.05.1992, disposed of the said O.A. with the following direction:
5. Pursuant to the Recruitment Rules being framed, it was only on 25.02.2002 that a post of electrician was created by the respondent.
6. The petitioner again approached the learned Tribunal by way of O.A. No.2662/2002, seeking his appointment against the said post. The said O.A. was disposed of by the learned Tribunal vide its Order dated 09.10.2002 with the following direction:
7. The respondent, in compliance of the above direction, first initiated the proposal for age relaxation for the petitioner, which, by a Resolution passed in the 159th Meeting of the ESIC on 28.05.2003, was approved.
8. Further approval from the Ministry of Labour and Employment was to be obtained, which approval was received on 15.09.2003.
9. On 30.09.2003, an Order was passed, directing that the petitioner be considered for the post of electrician by following the requisite drill of the recruitment process, that is, calling for applications for filling-up the posts through open advertisement, etc.
10. The petitioner participated in the recruitment process and was given the Offer of Appointment vide Letter dated 19.07.2004. The Offer of Appointment clearly stated that he would be covered under the New Pension Scheme (hereinafter referred to as, ‘NPS’), which had come into operation with effect from 01.01.2004. The petitioner conveyed his acceptance to all the terms of appointment vide his Letter dated 28.07.2004, based whereon a formal letter of appointment dated 25.08.2004 was issued to him. He joined the duty with effect from 28.07.2004.
11. The petitioner, thereafter, made representations dated 23.06.2014, 27.10.2014, 21.01.2015, 08.05.2015 and 09.08.2016 for counting the period of his service as a daily wager as qualifying service for pension.
12. Subsequently, the petitioner filed yet another O.A., being O.A. No.118/2017. The same was disposed of by the learned Tribunal vide Order dated 11.01.2017, directing the respondent to pass a speaking order on the representation dated 09.08.2016 of the petitioner, within a period of 60 days.
13. In compliance with the said direction, the respondent passed the Order dated 20.03.2017, rejecting the representations of the petitioner by, inter alia, observing that prior to 2002, there was no sanctioned post of electrician in the ESIC. It was observed that the request of the petitioner for counting of 50% of service rendered as daily wager for purpose of pensionary benefits could also not be acceded to as all employees appointed in Central Government on or after 01.01.2004 are covered under the NPS. Even the Offer of Appointment given to the petitioner contained such a term, which he had duly accepted.
14. Aggrieved thereby, the petitioner then approached the learned Tribunal by way of the above O.A., which, as noted hereinabove, has been dismissed by the learned Tribunal, observing therein that as the process of appointment of the petitioner had been completed after the coming into operation of the NPS, accordingly, the petitioner would be governed by the same.
15. His plea for considering 50% of the daily wage period towards qualifying service, could also not be accepted as there was no policy guideline of the ESIC in this regard and the policy directive of the GNCTD relied upon by the petitioner before the learned Tribunal was not applicable to the ESIC.
16. The petitioner has filed the present petition now contending that there are DoPT’s Circulars dated 14.05.1968 and 10.03.1986 which provide for counting of 50 % of the service rendered by a daily wager on regularization.
17. The learned counsel for the petitioner further submits that the post having been created on 25.02.2002, the delay in appointment of the petitioner was attributable to the respondent and, therefore, the petitioner would also be governed by the O.M. dated 31.03.2021 issued by the Department of Pension and PW which provides that in such cases the employee shall be covered by the Old Pension Scheme (OPS).
18. He submits that in terms of Section 17 (2) (a) of the Employees’ State Insurance Act, 1948 (hereinafter referred to as the, ‘ESI Act’), the method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the ESI, are to be in accordance with rules and orders applicable to officers and employees of the Central Government. Therefore, the above-mentioned DoPT’s Circulars would also be applicable to the petitioner.
19. On the other hand, the learned counsel for the respondents submits that in the present case, there was no post of electrician available with the respondents till 20.02.2002. As the petitioner was over-aged, the request for age relaxation was mooted and the same was finally received on 15.09.2003 from the Ministry of Labour and Employment. Thereafter, the recruitment process was initiated, in which the petitioner also participated. The petitioner on being declared successful was offered appointment with a clear term that he would be entitled only to the NPS. The petitioner accepted the terms of appointment, and it is only much later that he has gone ahead and again sought that he be covered under the OPS. Therefore, the plea of the petitioner was rightly rejected.
20. He further submits that this being a case of fresh appointment and not regularization, the DoPT’s Circulars would not be applicable. Even otherwise, the DoPT’s Circulars having not been adopted by the respondent in form of a regulation under Section 17 (2)(a) of the ESI Act, would not be enforceable against the respondent.
21. He also places reliance on the Judgment of the Supreme Court in Director General, Doordarshan Prasar Bharti Corporation of India & Anr. v. Smt. Magi H. Desai, AIR 2023 SC 1623, in support of his submissions.
22. We have considered the submissions made by the learned counsels of the parties.
23. From the above, it would be apparent that the petitioner was appointed with the respondents as a daily wager electrician. There was no substantive post for the same and it for the first time came to be created on 25.02.2002. As by then the petitioner was over-aged, necessary approval for age relaxation was obtained and the regular recruitment process was initiated by calling for applications. The petitioner was selected in the same and finally came to be appointed to the post of electrician, with the Offer of Appointment given on 19.07.2004, and appointment being from 28.07.2004, that is, after the coming into operation of the NPS. This was not a case of regularization but a case of fresh appointment.
24. Further, the appointment letter also stated that the petitioner would be covered by the NPS, and the petitioner accepted this term. It is only after a long passage of time that he represented against the same. Having accepted the terms of employment, therefore, the petitioner would even otherwise be estopped from challenging the same.
25. The plea of the petitioner that his appointment must relate back to 2002 when the post was created, can also not be accepted for the above reasons. As noted hereinabove, for even considering the petitioner for the newly created post, there was a requirement for obtaining age relaxation for him, which process took time and thereafter it was in open recruitment that the petitioner was selected.
26. The plea of the petitioner that in terms of the DoPT’s Circulars and instructions, 50% of his service rendered as a daily wager would be counted, can also not be accepted.
27. It is to be noted that the relevant circulars have not been placed on the record of this petition. They were not placed even before the learned Tribunal. The case of the petitioner not being of regularization but of direct recruitment, these Circulars may not be applicable to him.
28. Be that as it may, reliance has been placed on Section 17 (2)(a) of the ESI Act, which provides as under: “(2) (a) The method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay: Provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government. [Provided further that this sub-section shall not apply to appointment of consultants and specialists in various fields appointed on contract basis.]”
29. A reading of the above provision would show that the method of recruitment, salary and allowances, discipline, and other conditions of service of the members of the staff of the ESI is to be governed by the regulations made by the Corporation which must be in accordance with the rules and orders applicable to officers and employees of the Central Government drawing corresponding scale of pay. The petitioner has not been able to show any regulation framed by the ESI which prescribes for the counting of 50% of the service rendered as a daily wager for purposes of determining qualifying service.
30. Mere reliance on DoPT’s Circulars in this regard would not be sufficient. It is only where there is a conflict between the regulation framed by the ESI and the rules or orders in respect of the same matter for the officers and employees of the Central Government, that the ESI has to obtain prior approval of the Central Government. In the present case, there is no such conflict shown by the petitioner.
31. For the above-said reasons, we find no merit in the present petition. The same is, accordingly, dismissed.
NAVIN CHAWLA, J RENU BHATNAGAR, J JULY 10, 2025/sg/ik