(Traditional literature permitted historical fictions both as stories or plays. But, the modern literature permits stories and plays based on contemporary history. The present one is an imaginary play based on contemporary history with the intention of clearing many a doubt on the part of various persons working in various organisations where the DACP is implemented).
Act I : Scene I
Scene: Office of a busy lawyer at 7’O clock in the morning.
Cast: Mr. A, Mr. B, Mr. C and Ms. D, working as Assistant Professors in an ESIC PGMSR and a lawyer.
(The lawyer is going through the sheaf of papers presented by the Assistant Professors. Sullen silence prevails after a long discussion. The lawyer breaks the ice.)
Lawyer: (Placing the papers on his table) Yes. I went through your papers last night. Your grievance is genuine. I shall take up your case. My fee is about twenty per cent of your estimated arrears. You must know that I always charge very reasonably.
(The Assistant Professors are shocked and have been rendered speechless for a moment. Dr. A then recovers from the jolt first.)
Dr. A: Sir, the fee seems to be very huge.
Lawyer: Huge? You know what huge means? Conduct a survey. You will know yourself. My charge is very moderate. That is what I feel.
Dr. A: OK Sir, we have to discuss the issue among ourselves and other colleagues. Let us come back in a few minutes.
Lawyer: Yeah, that is fair. (The Assistant Professors leave the room. When they are about to be out of sight, the Lawyer shouts). Hello, keep in view the fact that I have not charged you the Consultation Fee. If you decide on engaging me, the consultation is free. (Ms. D, who leaves last nods her head).
Act I Scene II.
Scene: Garden in front of the office of the lawyer.
Cast: All the four Assistant Professors.
(The Assistant Professors discuss in a low hush-hush voice among themselves)
Dr. A: Friends, the lawyer wants 20% of our estimated arrears. Is it not a huge fee? Can we afford it?
Dr. B: It is huge, indeed. But, how will he calculate our arrears? We ourselves do not know.
Dr. C: Did you hear him right. He did not say 20%. He said that his fee was “about” 20 %. It seems he would make some calculation, arrive at an imaginary figure and ask us to pay it in advance.
Dr. B: Why not we go and meet some other lawyer who would charge less?
Dr. D: Of course, there are some lawyers who do it for free too.
Dr. C: But, they are not useful to us.
(Mr. A talks to some of his colleagues over mobile. Folds it up and looks at his friends)
Dr. A: Our friends say that we may engage this lawyer himself. Shall we move in?
(They move inside the chamber of the lawyer)
Act II: Scene I
Scene: Office of the lawyer.
Cast: The Assistant Professors and the lawyer.
Dr. A: Yes sir ! We agree to your terms.
(They hand over a wad of currency notes to the lawyer. He keeps the currency bundle in his drawer, feels invigorated, sits up in his chair and looks at them, cheerfully beaming with energy)
Lawyer: Yes, let us go ahead ! Let us analyse the case. You are all working in the ESIC Medical College as Assistant Professors from the year 2011 onwards, and some of you from 2013 onwards.
At the time of inviting applications for the post of the Assistant Professor, the ESIC had, in Para B (v) of its advertisement dated 05.11.2012, held out a categorical, clear and unambiguous promise that the “promotional avenues in the Department are available under DACP guidelines of the Government of India”.
As per Para 2. B of the DACP guidelines of the Government of India, Ministry of Health & Family Welfare, O.M. F.No. A-45012/2/2008-CHS. V dated 29.10.2008, the first benefit of DACP would be given to those in the Teaching Sub Cadre who have completed two years of regular service in the Grade pay of Rs. 6600 in PB-3.
Accordingly, you should have been promoted as Associate Professors in the pay band of Rs. 15600-39100 with Grade Pay of Rs. 7600, in the years 2013 and 2015 respectively, after completion of two years of regular service as Assistant Professor. But, the ESiC has not given that benefit of Assured Career Progression till date. Right?
Dr. A: Yes sir.
Lawyer: You have given representations also individually seeking such promotion to the post of Associate Professor. Yet, there is no positive result yet. Right?
Dr. A: Yes sir.
Lawyer: The position of law on the subject is that as per Sec. 17 (2) (a) of the existing ESI Act, 1948, “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”. Consequently, it is mandatory on the part of the ESIC to enforce in the ESI Corporation, the orders of the Central Government which are applicable to the officers of the Central Government drawing corresponding scales of pay. The rules and orders pertaining to the salary and allowances, method of recruitment and other conditions of service of the employees become applicable to the employees of the ESI Corporation also automatically, by virtue of the aforesaid Sec. 17(2)(a). Right?
Dr. A: Yes sir.
Lawyer: The Proviso to the said Sec. 17 (2) (a) mandates 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”. If at all the ESIC wants to deviate from the directions given in those Rules and Orders of the Government of India, it must obtain the prior approval of the Government, explaining proper reasons which are not arbitrary.
Dr. A: Yes sir.
Lawyer: The Administration says now that the Recruitment Regulations for the Medical Teaching Faculty Posts which had been amended and brought into force w.e.f. 03.07.2015 specified that for promotion to the post of Associate Professor one should have put in five years of regular service in the feeder cadre of Assistant Professor. Citing this, they convince you that you could not be promoted as Associate Professor until you complete five years of service as Assistant Professor. Yes?
Dr. A: Yes sir.
Lawyer: What was the provision in the Recruitment Regulations which were in force when the Advertisement was given on 05.11.2012?
Dr. A: Sir, there existed another set of Recruitment Regulations dated 02.05.2009 for the Medical Teaching Faculty Posts, when the authorities invited applications for the post of Assistant Professor on 05.11.2012. Those Recruitment Regulations provided for time-bound promotion for Assistant Professors to the post of Associate Professors after they put in four years of regular service as Assistant Professors.
Lawyer: But, now you know that the ESIC authorities advertised for the post of Assistant Professors on 05.11.2012 promising time bound promotion to the post of Associate Professor after two years of regular service, knowing full well that the then existing Recruitment Regulations prescribed four years of regular service as the Essential Qualification for promotion to that cadre. Okay?
Dr. A: Yes, sir.
Lawyer: What does it imply? It implies that the officials who dealt with the issues at that time, knew the concept clearly. The officials who deal with the issue now do not understand the concept and make a mess of it.
Dr. A: How?
Lawyer: yes. The fact is the officials who deal with the issue now have, simply, forgotten the fact that the ACPS (Assured Career Progression Scheme), MACPS (Modified Assured Career Progression Scheme) and DACPS (Dynamic Assured Career Progression Scheme) are there only to supplement and improve upon the already existing Recruitment Rules / Recruitment Regulations. The Recruitment Regulations, which provide only for the normal promotional avenues, cannot be invoked to deny and supplant the DACPS or ACPS or MACPS. So, the contents of the MOH&FW order dated 29.10.2008 on DACPS would prevail over the said Recruitment Regulations. But, the officials in the Hqrs. are ignorant of these rudimentary facts.
Dr. A: I see.
Lawyer: So, it is unlawful for the authorities to cite the Recruitment Regulations (either the present one dated 03.07.2015 or the earlier one dated 02.05.2009) to deny the benefit of DACP for which you became entitled to on completion of two years of regular service as Assistant Professor.
Dr. A: Yes.
Lawyer: Moreover, the DACPS benefit is not linked to vacancies but is akin to time-bound promotion, which has to be given with retrospective effect too, if there had been delay in convening the meetings of the DPCs / Review Committees under the DACP Scheme. The authorities cannot, therefore, hold out the later-day Recruitment Regulations of 03.07.2015 to deny the benefit that accrued to all of you already on 22.03.2015 FN. This is only an additional argument, because the RRs do not have the effect of supplanting the DACP guidelines of the Government of India.
Dr. A: I find substance in your argument.
Lawyer: We must stress on the fact that the authorities had offered through their advertisement dated 05.11.2012, to implement the DACP guidelines in respect those who opt for service in the ESIC Medical Colleges, in spite of their being aware of the contents of those Recruitment Regulations dated 02.05.2009 which were in force as on 05.11.2012.
Dr. A: Yes sir.
Lawyer: Another additional point is that there is no reason for the authorities to deny DACP benefits to those who completed two years of regular service even before the later amendment came into force on 03.07.2015. Seen in the light of this fact, the Speaking Order issued by the Hqrs. in C-18/11/7/16- Med VI dated 03.07.2017 is patently incorrect.
Dr. A: Is it?
Lawyer: Yes. I do not know whether you have seen it. It is a case of Assistant Professors (Dental) in the ESIC Dental College. As per the DACP guidelines for Assistant Professors (Dental), promotion will have to be made without linkage to vacancies, for those who have completed two years of regular service in that cadre. “Other conditions for effecting promotion will be governed by the respective Recruitment Rules as amended from time to time and DOPT instruction in this regard”. The Assistant Professors (Dental) in that case had joined in the year 2011. They had completed two years of service in the year 2013. They had become entitled to the DACP in the year 2013 itself. If the DPC had met in the year 2013 they would have got their benefit under the DACP. But, there had been delay and the RRs had later been amended on 23.12.2014. This RR which came into force on 23.12.2014 cannot deny the benefit that accrued to the Assistant Professors (Dental) in the year 2013, which can be and has to be given with retrospective effect, as the DACP, ACP, MACP are not linked to vacancies. This is only an Assured career progression and not a vacancy-based promotion, which alone can have prospective effect from or after the date of DPC. The speaking order dated 03.072017 is clearly wrong.
Dr. A: I see your point.
Lawyer: There is a possibility that similar unlawful and unjustifiable stand would be taken in your cases also. You have to pre-empt it. Or you must complain against the officials of the Hqrs. Office who misguide the Medical Commissioner to issue such a patently wrong order.
Dr. A: I agree.
Lawyer: Moreover, there is the theory of Promissory Estoppel. The promise made by the authorities in their advertisement dated 05.11.2012 falls very clearly within the definition of the term ‘Promissory Estoppel’. The authorities are, by law, prevented from breaking it, especially when you had acted upon that promise. The promise given by the authorities on 05.11.2012 was an enforceable promise, a clear and definite one at that. There is nothing on record to show that the promise was given only with the intention of breaking it later.
Dr. A: I understand.
Lawyer: That promise made by the authorities on 05.11.2012 prevents them from going back on it, especially after the Applicant had acted on it. It had been made with intent to make you to rely upon that promise. You had not only relied upon it but acted upon it too for a continuous period of two years. You had (i) acted on that promise held out on 05.11.2012, (ii) applied for the post of Assistant Professor, (iii) joined the services of the institute and (iv) rendered service for two years hoping all along that the authorities would fulfil their promise on completion of two years’ service. The authorities ought, therefore, to fulfil that promise. They are estopped from reneging from their earlier stand as communicated, on 05.11.2012, to you as one of the terms and conditions of appointment.
Dr. A: When this being the position of law, how come they issued an order like the one dated 03.07.2017 in the case of Assistant Professors (Dental)?
Lawyer: That was a clear case of negligence on the part of the officials who processed the case. A copy of the filenoting, if obtained under the RTI Act, would show who had misled the Medical Commissioner thus. Depending upon the material evidence available thus, you can proceed against the concerned officials under Sec. 24 of the IPC too, after obtaining permission from the Director General to prosecute them for having caused wrongful loss to you.
Dr. A. Why are they not understanding the concept of DACP then?
Lawyer: It is just unwillingness to read the instructions. The orders of the Central Government on the DACPS (just like the ACP and MACP) are intended to improve upon the normal promotional avenues contemplated under the Recruitment Regulations notified in the Gazette for each cadre. This has been repeatedly made clear by the DOPT also right from the year 1999, when the ACP was introduced. The order dated 29.10.2008 cannot, therefore, be refused to be enforced in the ESI Corporation by citing the later day Regulations of 03.07.2015.
Dr. A: Are we entitled to the benefits available to those who are under the CHS?
Lawyer: Yes, of course. The All India Institute of Medical Sciences (AIIMS) and the Jawaharlal Institute of Post-Graduate Institute of Medical Education & Research. Puducherry (JIPMER) are also Central Autonomous Bodies like the ESI Corporation. The orders dated 29.10.2008 of the Department of Health & Family Welfare, Government of India regarding DACPS have already been enforced in those Central Autonomous Bodies. There is, therefore, no justification in denying the benefit to the teaching faculty in the Medical institutions of the ESIC, when Sec. 17(2) (a) of the Act mandates such benefit to be conferred on them.
Moreover, the Principal Bench of the Hon’ble Central Administrative Tribunal, Delhi has in the case involving the conditions of service of the Pharmacists of the ESIC, ruled that the ESIC “cannot claim immunity from creating proper cadre structure”, especially when various State Governments and the AIIMS have a well-defined cadre structure. Hon’ble Principal Bench made such an observation in the light of the fact that the “Pharmacy Council of India, the Apex Statutory Body to regulate the Pharmacy in the country has itself recommended that every health delivery agencies should have a well-defined cadre structure for their Pharmacists”. (Udhay Veer Singh Vs. ESIC – 06.05.2015). The same ratio is applicable to the teaching faculty also in the ESIC, whose cadre structure has all along been on the lines of the structure in the CHS. The authorities are, therefore, required to confer the benefit of DACPS on the teaching faculty of the ESIC Medical institutions, as per the orders of the Department of Health & Family Welfare dated 29.10.2008.
Dr. A: I see.
Lawyer: Besides, as per Sec. 17 (2) (a) the pay and allowances and other conditions of service of the employees of the ESI Corporation are to be in accordance with the rules and orders applicable to the corresponding category of central government employees. Any denial of the benefit of the orders dated 29.10.2008 of the Department of Health & Family Welfare on the DACPS would be in clear violation of the provisions of the aforesaid Sec. 17 (2) (a) of the ESI Act, 1948, which is not permissible in law.
To sum up, you are all entitled to the benefit of Dynamic Assured Career Progression Scheme and get promoted to the post of Associate Professor in the pay band of Rs. 15600-39100 with Grade Pay of Rs. 7600 with effect from the date succeeding the day on which you had completed two years of regular service in the cadre of Assistant Professor in the ESIC PGIMSR. (At this moment, the ten-years old daughter of the Lawyer enters into the room. The lawyer looks at the wall clock. It is 7.45 AM. Time for him to go to a nearby town for a family function for which his wife has left already. His ten-years old daughter would not go with mother. She wants to accompany her indulgent father and has, therefore, entered into the office of the lawyer to remind him. The lawyer rises up. The doctors understand that their appointment is over)
Dr. A, B, C & D: Thank you, sir ! (The lawyer reciprocates their gesture. The doctors get up and move outside)
Act III Scene I
Scene: Near the exit gate of the house of the lawyer.
Cast: The Assistant Professors and the lawyer and his daughter.
(When the Assistant Professors are walking across the garden in front of the house of the lawyer, the car of the lawyer overtakes them. Suddenly, Mr. C, waves at the car to stop it. The car stops near them and the lawyer peeps out with an inquiring glance.)
Dr. C: Sir, when we pay, will you give receipt so that we could account for it before our friends?
Lawyer: Yes, of course ! And, you will have to pay 20% more for that.
(All the Assistant Professors are gasping in unison)
Lawyer: Hey, What happened? Shocked? No. Be happy! I haven’t charged 20% on that 20%, you know. I am, always, reasonable. Charging only 20 instead of 30%. (The Lawyer drives the car on. But, the car stops at a distance. He peeps out of the car and shouts at the Assistant Professors there). Hey, GST, GST ! Keep that in view too !!
(The car glides away and disappears at a distance. The shell-shocked doctors take some time to recover.)
Dr. Ms. D: I didn’t know, yaar! Had I known, I would also have gone for advocacy.
Act III Scene II.
Scene: A highway.
Cast: The lawyer and his daughter in their car.
No traffic rush is there on the highway. Only a few vehicles in sight sporadically. The Lawyer drives the car at slow speed. He switches off the AC and downs the window facilitating his daughter enjoy the cool morning breeze. His daughter prefers travelling in open car, always.
ACPS and DACP are different from normal promotions. It is for the normal vacany-based promotions or normal time-bound promotions, the provisions of the RRs have to be invoked and the condition regarding the period of residency mentioned in the RRs required to be fulfilled. Introduction of ACP or DACP schemes was in addition to the avenues of promotion prescribed in the RRs. These schemes are not to affect normal promotional avenue. While elaborating these facts pertaining to the ACP in its O. M. dated 09.08.1999, the DOPT had said, “The Fifth Central Pay Commission in paragraph 52.15 of its Report has also separately recommended a “Dynamic Assured Career Progression Mechanism” for different streams of doctors. It has been decided that the said recommendation may be considered separately by the administrative Ministry concerned in consultation with the Department of Personnel and Training and the Department of Expenditure.” The Press Information Bureau of the Government of India has also said, in its bulletin dated 07.08.2013,
“Central Health Service (CHS) Officers in Central Government are governed by the Dynamic Assured Career Progression (DACP) Scheme, which was implemented by Government of India based on the recommendations of Vth Central Pay Commission providing promotion to the CHS officers without linkage to vacancies upto the level of Chief Medical Officer – Non-Functional Selection Grade (CMO-NFSG)/ Specialist Grade I/ Professor w.e.f. 5.4.2002. The benefit of promotion under DACP Scheme was extended to Dental Officers under Ministry of Health and Family Welfare without linkage to vacancies upto the level of Staff Surgeon (Dental) (NFSG)/ Professor/ Maxillofacial Surgeon w.e.f. 25.8.2006.
Based on the acceptance of VIth Central Pay Commission’s the Government of India further extended the Dynamic Assured Career Progression (DACP) Scheme upto the Senior Administrative Grade (SAG) level without linkage to vacancies in respect of Medical and Dental Doctors in the Central Government, whether belonging to Organised Service or holding isolated posts w.e.f. 29.10.2008 .All Ministries/ Departments of the Central Government are required to implement the DACP Scheme accordingly in respect of Medical/ Dental Doctors under their control. This benefit of promotion upto the level of SAG without linkage to vacancies under DACP Scheme was also extended to the officers of various sub-cadres of Central Health Service (CHS) and Dental Doctors under the Ministry of Health and Family Welfare w.e.f. 29.10.2008.” (http://pib.nic.in/newsite/mbErel.aspx?relid=98744)
The lawyer is lost in thoughts: “Unless the DACP Mechanism has been done away with, the authorities cannot deny the Assured Career Progression to his clients. They knew that and that was why they made this promise in the advertisement and in the offer of appointment to his clients in the year 2012. They knew that the earlier RR of 2009 had specified four years as the period of residency. And, yet, if the promise of DACP had been made in the year 2012, it implies that the Administration was aware of the fact that the DACP was an additional feature taking the promotional avenues beyond the provisions of the RRs”. The lawyer is not able to comprehend how the officers dealing with the case, at present, arrived at a different and strange conclusion that the RRs amended in 2014 would supersede the provisions of the DACP. How did they do it? How did they issue an order like the one dated 03.07.1017 in the case of Assistant Professors (Dental)? The lawyer is puzzled.
The chain of thoughts of the lawyer gets disrupted by his daughter who prods him to look at the parrots sitting on a roadside tree. ‘Hm, that was a good case’, the ruminating lawyer throws a beaming smile at his daughter sitting near him. The kid responds with a smile too.
She does not know that that beaming smile of her father is the outward expression of his inner joy at the erroneous notes submitted by the officials to mislead the Medical Commissioner of the Hqrs Office. She also does not know that her father wishes the officials to commit more such blunders. She is fascinated by the pandemonium of parakeets and the flutter of sparrows flying in the sky.
Images: Courtesy: net.