Om Prakash and Ors v. Employees State Insurance Corporation and Ors

V. KAMESWAR RAO, J.

ANOOP KUMAR MENDIRATTA, J. August 02, 2023/akc

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: August 02, 2023 + OM PRAKASH AND ORS. ..... Petitioners Through: Mr. Atul Kumar, Mr. Jayant Malik and Mr. Nishant Prakash, Advocate. versus EMPLOYEES STATE INSURANCE CORPORATION AND ORS. ..... Respondents Through: Mr. V.K. Singh, Ms. Prachi Singh and Ms. Yakshi Rawal, Advocates for ESIC. CORAM: HON'BLE MR. JUSTICE V. KAMESWAR RAO HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO (Oral) 1. The challenge in this writ petition is to an order dated November 30, 2016, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (in short 'Tribunal') in O.A. 2735/2014 (O.A. in short), rejecting the same by holding in para 23 as under:- "23. Considering the ratio of the aforesaid judgment, we find that initial appointment of the applicants being purely adhoc and temporary, could not be counted towards seniority in view of the rules of seniority notified by various OMs, noticed and reproduced hereinabove. The OMs ore binding and applicable in the case of applicants in absence of any statutory rules or regulations to the contrary. There is another aspect. Applicants are claiming seniority over and above private respondents. Though the private respondents have chosen not to contest this Application, however, the fact remains that they were selected and appointed by direct recruitment in accordance with the procedure established by law and in consonance with the mandate of Articles 14 and 16 of the Constitution of India. Their appointment was between the period 1986-1991, i.e., between the period applicants were engaged on adhoc basis and till their regularisation. Private respondents having been appointed on substantive and regular basis right from the day of their appointment, cannot be made to suffer in the matter of seniority merely because the applicants have succeeded in seeking their regularisation. Since the date of regularisation is admittedly later in time, the appointment of applicants shall be deemed to be on substantive and regular basis from the date of their regularisation. They did not become members of the service during the period they were engaged on adhoc/temporary basis. The rights of private respondents cannot be affected to their disadvantage at the instance of the applicants, who entered government service through backdoor, though later regularized." 2. The O.A. was filed by the petitioners with the following prayers:- "(i) Call for the records relating to the present and quash and set aside the action and orders of the respondents in refusing the regularisation of the-applicants' services w.e.f. the dates of initial appointment and the refusal of the respondents to consider the said period of continuous service from initial appointment for the purpose of seniority, study leave, the scale of Senior Medical Officer, the scale of Chief Medical Officer etc being malafide, arbitrary, discriminatory and in violation of the fundamental rights of the applicants under Articles 14 and 16 of the Constitution of India. (ii) Declare the action and orders of the respondents in refusing the regularization of the applicants; services w.e.f. the dates of initial appointment and the refusal of the respondent to consider the said period of continuous service from initial appointment for the purpose of seniority, study leave, the scale of Senior Medical Officer, the scale of Chief Medical Officer etc. are null and void being malafide, arbitrary discriminatory and in violation of the fundamental rights of the applicants under Article 14 and 16 of the Constitution of India. (iii) Direct the respondents to treat the applicants on, regular service w.e.f. the date of initial appointment and to consider the said period of continuous service from initial appointment for the purpose of seniority, study leave, the scale of Senior Medical Officer, the scale of Chief Medical Officer and all other consequential benefits. (iv) Direct the respondents to grant the