2022 (1) TMI 1298 - SC - Indian Laws

Interpretation of statute - Section 17(2)(a) of the ESIC Act 1948 - Rejection of petition filed by the appellant against the promotion of the contesting respondents, to the post of Associate Professor under the Dynamic Assured Career Progression DACP Scheme - determination of applicable rules/regulations for promotion of the contesting respondents from the post of Assistant Professor to Associate Professor namely, the ESIC Recruitment Regulations 2008, the DACP Scheme or the ESIC Recruitment Regulations 2015. HELD THAT - The ESIC Recruitment Regulations 2008 and ESIC Recruitment Regulations 2015 have statutory effect by virtue of Section 97(3) of the ESI Act. It is settled law that regulations framed by statutory authorities have the force of enacted law. A Constitution Bench in SUKHDEV SINGH VERSUS BHAGATRAM SARDAR SINGH RAGHUVANSHI 1975 (2) TMI 111 - SUPREME COURT considered the regulations framed by several statutory authorities considered as State within the terms of Article 12. The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the Counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court - the contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The revised seniority list of the Teaching Cadre at the appellant corporation should reflect the promotions of the contesting respondents in accordance with the ESIC Recruitment Regulations 2015 and not the DACP Scheme - Appeal allowed.

Issues Involved
1. Applicability of the DACP Scheme versus ESIC Recruitment Regulations 2015 for promotions.
2. Statutory force and precedence of ESIC Recruitment Regulations 2015 over DACP Scheme.
3. Validity of the concession made by the appellant's counsel before the CAT.
4. The effect of recruitment advertisements mentioning DACP Scheme on actual promotion rules.
5. Prior approval from the Central Government for ESIC Recruitment Regulations 2015.

Issue-wise Detailed Analysis

1. Applicability of the DACP Scheme versus ESIC Recruitment Regulations 2015 for promotions
The core issue is whether promotions from Assistant Professor to Associate Professor should be governed by the DACP Scheme or the ESIC Recruitment Regulations 2015. The DACP Scheme, introduced by the Office Memorandum dated 29 October 2008, allows promotion after two years of service. However, the ESIC Recruitment Regulations 2015, effective from 5 July 2015, mandate five years of service for such promotions. The Supreme Court held that the DACP Scheme does not apply to the contesting respondents as the ESIC Recruitment Regulations 2015, having statutory effect, override the DACP Scheme.

2. Statutory force and precedence of ESIC Recruitment Regulations 2015 over DACP Scheme
The ESIC Recruitment Regulations 2015 were issued under Section 97(1) and Section 17(3) of the ESI Act, giving them statutory force. The Supreme Court emphasized that regulations framed by statutory authorities have the force of law and take precedence over executive instructions like the DACP Scheme. The Court cited several precedents, including Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi and Pepsu Road Transport Corporation, Patiala v. Mangal Singh, to affirm that statutory regulations override executive instructions.

3. Validity of the concession made by the appellant's counsel before the CAT
The appellant's counsel mistakenly conceded before the CAT that the ESIC Recruitment Regulations 2015 would not govern the matter. The Supreme Court clarified that such a concession does not amount to estoppel against statutory regulations. Citing cases like State of Uttar Pradesh v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti and Himalayan Coop. Group Housing Society v. Balwan Singh, the Court held that there can be no estoppel against a statute or regulations having statutory effect.

4. The effect of recruitment advertisements mentioning DACP Scheme on actual promotion rules
The advertisements issued by the appellant mentioned the DACP Scheme, but the Supreme Court held that in the event of a conflict between a statement in an advertisement and service regulations, the latter prevails. The Court referred to Malik Mazhar Sultan v. U.P. Public Service Commission and Ashish Kumar v. State of Uttar Pradesh, which established that erroneous advertisements do not create legal rights if they contradict statutory rules.

5. Prior approval from the Central Government for ESIC Recruitment Regulations 2015
The contesting respondents argued that the ESIC Recruitment Regulations 2015 were issued without the required prior approval from the Central Government as per Section 17(2)(a) of the ESI Act. However, the Supreme Court noted that the preamble to the ESIC Recruitment Regulations 2015 stated that the regulations were made with the approval of the Central Government. Thus, the argument on the lack of prior approval was dismissed.

Conclusion
The Supreme Court allowed the appeal, setting aside the Karnataka High Court's judgment dated 5 September 2019. The Court directed that the promotions of the contesting respondents should be governed by the ESIC Recruitment Regulations 2015, not the DACP Scheme. The revised seniority list of the Teaching Cadre at the appellant corporation should reflect this ruling. Pending applications, if any, were also disposed of.

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