BINDU K vs Employees State Insurance Corporation on 13 November 2026

1. Bindu K., D/o. Ponnayyan, aged 39 years, Staff Nurse, ESIC

Hospital, Parripally, Kollam – 691 574, Residing at Anizham, Pattathanam, Kollam.

2. T.R. Molly, D/o. J. Titus, aged 40 years, Staff Nurse, ESIC Hospital, Parripally, Kollam – 691 574, Residing at Kavya, OPP to Vimala Central School, Karamcod PO, Chathanoor, Kollam.

3. Reni A., D/o. A.V. George, aged 43 years, Staff Nurse, ESIC

Hospital, Parripally, Kollam – 691 574, residing at Karunya, Erom North, Chathanoor.

4. Bindu S.S., D/o. Sadasivan, aged 42 years, Staff Nurse, ESIC

Hospital, Parripally, Kollam – 691 574, residing at Savithri Bhavan, Pulimath PO., Porunthamon.

5. Saraswathy P., D/o. P. Parameswara Panikker, aged 46 years, Staff Nurse, ESIC Hospital, Parripally, Kollam – 691 574, residing at Souparnika, Koonayil, Paravur PO, Kollam.

6. Sudhamony S., D/o. P. Sankaran, aged 44 years, Staff Nurse, ESIC

Hospital, Parripally, Kollam – 691 574, residing at Plavilaveedu, Maidanam, Varkala PO, Varkala.

7. Laila C.L., D/o. P.K. Leshmanan, aged 40 years, Staff Nurse, ESIC

Hospital, Parripally, Kollam – 691 574., residing at Akshya, Kurumandal, Paravur.

8. Sunija C., D/o. Chandrasenan M., aged 40 years, Staff Nurse, ESIC

Hospital, Parripally, Kollam – 691 574, residing at Rajagiri, Valathungal, Kollam.

9. Girija Kumari G., D/o. Gopinathan Nair, aged 42 years, Staff Nurse, ESIC Hospital, Parripally, Kollam – 691 574, residing at V.V. Nivas, Navaikulam PO, Thiruvananthapuram.

10. I. Moly, D/o. K.K. Mukundan, aged 39 years, Staff Nurse, ESIC

Hospital, Parripally, Kollam – 691 574, residing at Planthottam, Pozhikkara, S. Paravoor, Kollam.

11. Moni G., D/o. George, aged 52 years, Staff Nurse, ESIC

Hospital, Parripally, Kollam – 691 574, residing at Annu Villa, Eramthikku, Karamcode.

12. Sreekumaran Nair B.K., aged 56 years, H/o. Late Bindu S.S., Residing at Sreemandiram House, Mathira PO, Manacodu Village, Kottarakkara Taluk, Kollam – 691536.

13. Aryasree S.B., aged 24 years, D/o. Late Bindu S.S., Residing at Sreemandiram House, Mathira PO, Manacodu Village, Kottarakkara Taluk, Kollam – 691536.

…. Applicants

(By Advocate - Shri Chekkutty Thazhathedath)

V e r s u s

1. Union of India, rep. by the Secretary, Ministry of Labour and Employment, Shram Shakthi Bhavan, New Delhi – 110 002.

2. Employees State Insurance Corporation, Panchadweep Bhavan, CIG Road, New Delhi – 110 002, represented by its Director General.

3. The Regional Director, ESIC Corporation, Panchdeep Bhawan, NS Round, Thrissur.

4. The Medical Superintendent, ESIC Hospital, Parippally, Kollam District – 691 574.

5. The Medical Superintendent, ESIC Hospital, Asramam, Kollam District – 691 002.

6. State of Kerala, rep. By the Secretary to Government, Labour and Rehabilitation Department, Government Secretariat, Thiruvananthapuram – 695 001.

7. Binushma P.G. Aged 37 years, W/o. Sunilkumar, Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at TC 48/882(2), Gokulam, Konchiravila, Manakkadu PO, Thiruvananthapuram.

8. Priya P., aged 36 years, W/o. M. Thilakan, Staff Nurse, Paripally, ESI Hospital, Kollam, Kollam District, residing at Kollayil Charuvila Puthenveedu, Karimpaloor, Puthenkulam PO, Kollam – 691 302.

9. Sherin N.B., aged 36 years, W/o. Biju V., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Nehalayam, Alamukku, Poovachal PO, Thiruvananthapuram – 695 575.

10. Kunjumol P.N., aged 43 years, W/o. K.K. Raju, Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Sopanam, Samurthi Nagar, 8-A, Asramam PO, Kollam -691 302.

11. L. Padmakumari, aged 44 years, W/o. Praveen Kumar K.S., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Krishna, T.C. 21/1461,Nedumacadu, Karamana PO, Thiruvananthapuram – 695 002.

12. Bindu M. Thomas, aged 42 years, W/o. Sini George, Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Kollamppallythara, Mera Nagar, 80-4, Mundakkal, Kollam District.

13. Indu S., aged 40 years, W/o. Padmakumar G., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Nivedhyam, H.No. 08/332, Mekkone, Chandana Thoppu PO, Kollam-691014.

14. Rose Charles, aged 42 years, W/o. Shaji K.V., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Kokkappallil House, Thonackadu PO, Cheriyanadu, Chengannur, Allappey District.

15. Bindu S., aged 41 years, W/o. Jayaprakash K., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Puliyanmavil House, Kavumbhagam PO, Kizhakkumminri, Thiruvalla, Pathanamthitta – 689 102.

16. Sreelekha P.B., aged 43 years, W/o. P. Radhakrishnan, Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Anayadi, Padeetathil, Pallarvimangalam PO, Mavelikkara, Alleppey District.

17. Kavitha Aravind, aged 40 years, W/o. Binulal, Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Krishna Gadha, Kottikada PO, Kollam District.

18. Sunitha S., aged 37 years, W/o. Shaji T.J., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Shaji Nivas, Mithranikethan PO, Vellanadu, Thiruvananthapuram.

19. Susheela T., aged 48 years, W/o. Suresh Babu V., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Sabhalayam, Edavattom, Vellimon PO, Keralapuram, Kolam-691511.

20. Sijitha S., aged 40 years, W/o. Sunil P.S., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Souparnika, Kuzhiyam South Temple Nagar, House No. 5, Chandana Thoppu PO, Kollam – 691 014.

21. Seena M. Nair, aged 37 years, W/o. Anilkumar R., Staff Nurse, Parippally, ESI Hospital, Kollam, Kollam District, residing at Seena Sadan, Valanchery, Kilimanoor PO, Thiruvananthapuram – 695 601.

22. Annie Pius, aged 37 years, W/o. Gracious K.E., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Sharon Cottage, Maruthady PO, Kollam – 691 003.

23. Sheena H.M., aged 36 years, W/o. Santhosh R.P., Staff Nurse, Parippally, ESI Hospital, Kollam, Kollam District, residing at Sheena Mandiram, Edathara PO, Karyam, Kadakkal, Kollam-691536.

24. Soumya S., aged 32 years, W/o. Shaiju B., Staff Nurse, Parippally, ESI Hospital, Kollam, Kollam District, residing at Ozhukupara House, Vattappara House, Thiruvananthapuram – 695 028.

25. Diana Joseph, aged 35 years, W/o. Asok Eapen, Staff Nurse, Parippally, ESI Hospital, Kollam, Kollam District, residing at AN-125, Adarsh Nagar, Pattom PO, Thiruvananthapuram – 695 004.

26. Laisamma P.M., aged 41 years, W/o. Kurian T.C., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Thadimattathil House, Parampuzha PO, Kottayam – 686 004.

27. Preetha S.V., aged 34 years, W/o. Sajumon K., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Uthram, Kavottumukku, Kazhakkootam, Thiruvananthapuram-695 582.

28. Vineetha Kumary T.K., aged 33 years, W/o. G.K. Shanoj, Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Thraisham,Irikkunnam, Nettayam, Manicandeswaram PO, Thiruvananthapuram.

29. Surya K., aged 45 years, W/o. Madhu P.P., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Kareethara House, Chettimangalam, Thekkenada PO, Vaikom, Kottayam – 686 142.

30. Jeena Paul, aged 40 years, W/o. Jiju P.D., Staff Nurse, Udyogamandal, ESI Hospital, Ernakulam, Ernakulam District, residing at Pollayil House, Alangad PO, Near St. Mary's Church, Ernakulam.

31. Manju M.V., aged 39 years, W/o. G.D. Harikumar, Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Gokulam, House No. 20. V.S.P. Nagar,Keravdduray, Pattom PO, Thiruvananthapuram.

32. Prabhu Kumar R.A., aged 34 years, S/o. D. Raveendran, Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Pranavam, Mulammoodu, Mukkampalamoodu, Naruvamoodu PO., Thiruvananthapuram – 695 020.

33. Geethakumari N., aged 39 years, W/o. Suresh Kumar C., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Nermalayam, Perumpuzha PO, Kundara, Kollam – 691 504.

34. Roopa P., aged 38 years, W/o. Gopakumar M.G., Staff Nurse, Udyogamandal, ESI Hospital, Ernakulam, Ernakulam District, residing at Anuroop, Panamanna PO, Ottappalam, Palakkadu – 679 501.

35. Indu P.R., aged 41 years, W/o. Vijayan V., Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Nanda Krishna, Kannimel Cherry, Maruthady, Kollam – 03.

36. Ambili R., aged 46 years, W/o. Cyril Chacko, Staff Nurse, Ashramam, ESI Hospital, Kollam, Kollam District, residing at Kalluvila veedu,Thannicodu, Kundara, Kollam – 691 501.

37. Ambili P.A., aged 39 years, W/o. Biju P., Staff Nurse, Udyogamandal, ESI Hospital, Ernakulam, Ernakulam District, residing at Nadumuttam House, Neeleswaram PO, Kalady, Ernakulam.

…. Respondents

[By Advocates - Shri N. Anilkumar, SCGSC (R1),

Shri T.V. Ajayakumar (R2-5),

Shri M.M. Salim, Sr. GP (R6) and

Mr. T.C. Govindaswamy & Ms. Sreekala T.N.

(R7-9, 11, 13, 15-20, 22-29 & 36)]

This Original Application having been heard on 02.11.2026, the Tribunal on 13.11.2026 delivered the following:

O R D E R

Per: Justice Sunil Thomas, Judicial Member –

The applicants who were Staff Nurses Grade-I in the Kerala State Service, engaged as Nurses in the hospital at Parripally which was taken over by the ESIC, applicants absorbed by order dated 16.4.2010, has approached this Tribunal, claiming that they ought to have been absorbed in the ESIC as Nursing Sisters.

2. All the applicants joined as Staff Nurses in the State Government hospital at Parripally as Staff Nurse Grade-II on different dates during the period 1999 to 2012. Subsequently, during the period 2007 to 2009 each were promoted as Staff Nurse Grade-I. While so, the hospital was taken over by the ESIC on various terms and conditions and the applicants were absorbed as Staff Nurses by Annexure A2 Office Memorandum dated 19.12.2011. According to the applicants, they were absorbed as Staff Nurse in the pay scale of Rs. 9,300-34,800/- with Grade Pay of Rs. 4,600/-. The grievance of the applicants is that they expected to be absorbed as Nursing Sisters in ESIC in the Grade Pay of Rs. 4,800/-. Raising this objection, they submitted Annexures A5 to A7 representations. Since it was not considered nor appropriate decision taken thereon, they approached this Tribunal by filing OA No. 157 of 2013 which was disposed of.

3. Being aggrieved by the inaction on the part of the respondents in not absorbing the applicants as Nursing Sister from 2011, the present Original Application has been filed. The reliefs sought are as follows:

“a) declare that the absorption of the applicants as Staff Nurse with Grade Pay of Rs. 4600/- is irregular even in the face of Annexure A3

b) declare that applicants are entitled to be absorbed as Nursing Sister in the Hospitals managed by the respondent Corporation w.e.f. 4.3.2011.

c) to direct the respondent to dispose of Annexure A6 and A7 representations.”

4. The respondents Nos. 2 to 5 filed a separate reply statement contending that the Original Application filed by the applicants are without any merit. It was contended that in the absence of challenge against Annexure A2 order of absorption dated 19.12.2011, the Original Application filed by the applicants in 2015 seeking the said prayer is beyond the time limit stipulated under Section 21 of the Administrative Tribunals Act, 1985. Hence, the OA itself is liable to be dismissed on that ground. The applicants had expressed their willingness to be absorbed in the respondent Corporation as evident from Annexure A1 and similar letters. They have no case that they opted for being appointed as Staff Nurse Grade-I or in the equivalent cadre and it was accepted by the ESI Corporation. They were holding the post of Staff Nurse Grade-I in the State Service which is not disputed. The further averment made that the post of Staff Nurse Grade-I in the State Service is to be considered to be equivalent to the post of Nursing Sister in ESIC is incorrect and unsustainable. ESI hospital, Parripally comes under the administrative control of the ESI Corporation which has been functioning under the Government of India. The Recruitment Rules for appointment/promotion in the various posts in ESIC is quite different from that of the State Service. The method of recruitment of Nursing cadre/post is governed by ESI Corporation (Recruitment) Regulations, 2010. The applicants were working in the State Service as per the appointment/promotion Rules prevailing in the State Service prior to their absorption. The State Service of the applicants and other relevant aspects were duly considered by the 2nd respondent Corporation while they were absorbed as Staff Nurse in the ESI Corporation.

5. By Annexure A2 order, they were absorbed in the Grade Pay of Rs. 4,600/-. The applicants were not offered any specific post at the time of their absorption. As can be seen from Annexure A1 option form, the 2nd applicant had only submitted that she opted for her absorption in the ESI Corporation only and the above option was not given to any specific post in the ESI Corporation. Absorption was to be done only in the equivalent post in the ESI Corporation. The higher post of Nursing Sister claimed by the applicants can be offered to the applicants only on promotion after rendering the required service in the ESI Corporation in the cadre of Staff Nurse and taking into consideration the seniority and other eligibility criteria as provided in the Regulations mentioned above. All the employees working in the ESI Corporation on deputation like the applicants were given opportunity to opt to render their future service in the State Government or in the ESI Corporation and they had enough time to verify and examine the post in which they are entitled to be absorbed in the ESI Corporation. They were absorbed pursuant to their unconditional acceptance of the terms of absorption.

6. On absorption, an employee of the ESIC will be governed by the ESIC (Staff and Conditions of Service) Regulations, 1959. In the terms of absorption, it was not mentioned that the applicants would be absorbed as Nursing Sisters and the applicants have also no such case. Hence, the applicants cannot turn around and contend that they are entitled to be absorbed as Nursing Sisters which is a higher promotional post in the cadre as per the Recruitment Regulations.

7. The chart showing the post in the State Government and the corresponding post in the ESIC clearly shows that the Nursing Sister in ESIC is equivalent to the Head Nurse. There is no separate Staff Nurse Grade-I and higher grade in the ESIC, and the lowest post in the cadre is known as Staff Nurse. Hence, the applicants who have been occupying the post of Staff Nurse Grade-I and higher grade in the State Service would only be absorbed as Staff Nurse and not as a Nursing Sister which is a higher grade equivalent to the Head Nurse. Further, pursuant to their absorption, they not only had higher salary and allowances, but had the advantage of an extended service up to 60 years. Generally, each of the applicants got an enhanced pay of more than Rs. 6,000/- on absorption. According to the respondents, the 1st applicant got a higher pay of Rs. 6,286/- and the 2nd applicant Rs. 6,354/- on absorption. Arrears due to the applicants were also paid to them. Hence, the contention that they are entitled to be absorbed as Nursing Sisters cannot be accepted. It was also stated that ESIC had not offered any particular post for their absorption. Further, the applicants had agreed to abide by all terms and conditions set out in the terms of absorption. Hence, the Original Application was sought to be rejected.

8. Respondents Nos. 7-9, 11, 13, 15-20, 22-29 & 36 filed another reply statement disputing the claim set up by the applicants. It was stated that they respondents were working as Staff Nurses under the ESI Corporation having been selected and appointed by direct recruitment. It was contended that the applicants were claiming absorption as Nursing Sister, which is against Annexure A2 order and they are indirectly challenging Annexure A2. The order of absorption was issued as early as on 19.12.2011 and it is not legally sustainable at this distance of time. Applicants have no case that they have opted for being appointed as Staff Nursing Sister or in the equivalent cadre and it was accepted by the ESIC. The further claim that post of Staff Nurse Grade-I in the State Service is to be considered as equivalent to the post of Nursing Sister in ESIC is incorrect and unsustainable. ESI hospital is controlled by the ESI Corporation which functions under the Government of India. The Recruitment Regulation for appointment and promotion to the various posts in ESIC is quite different from that of State Service. The method of recruitment to the nursing cadre/posts is governed by ESI Corporation (Recruitment) Regulations, 2010. The State Service applicants were governed by the Rules applicable to the State Service. It was also stated that in Annexure A1 option form the applicants had specifically accepted the absorption without specifying the post in the ESI Corporation. It was further contended that the higher post of Nursing Sister can be claimed by the applicants only on promotion after rendering the required service in the ESIC. The Staff Nurses working in other ESI hospitals on deputation and later on permanent absorption by virtue of option can only be placed below the Staff Nurses working in ESIC. The applicants were given an opportunity to opt to decide their future in the State Government or in ESIC and they had enough time to verify and examine the post in which they are entitled to be absorbed. As per the terms of absorption an official on absorption in the ESIC would be governed by ESIC (Staff and Conditions of Service) Regulations, 1959.

9. The applicants were working in the post of Staff Nurse Grade-I in the State Government service. Hence, they are entitled only to be absorbed to the post of Staff Nurse in ESIC and not to the post of Nursing Sister. The post of Nursing Sister in the ESIC is a higher post in the cadre which is equivalent to the post of Head Nurse in the State Government service. Further the applicants have not challenged Annexure A2 order. In the absence of any challenge, the reliefs now sought cannot be granted.

10. The applicants filed a rejoinder as well as an additional rejoinder traversing the contentions in the Original Application.

11. This Tribunal on the basis of the pleadings by an order dated 10.1.2020 disposed of the OA with a direction to the respondents Nos. 2 to 5 to consider Annexures A4, 6 and 7 representations and to take an appropriate decision on merits without considering the question of delay. This order was challenged in OP (CAT) No. 97 of 2020 by the ESI Corporation. By judgment dated 18.8.2025, the Hon’ble High Court set aside the order of this Tribunal holding that the relief No. (c) which was an alternate relief sought in the Original Application was granted without considering whether the reliefs Nos. (a) and (b) could be granted. It was also held that by directing that the question of delay has to be ignored, virtually the jurisdiction of the authority was circumscribed prejudicing both sides. Accordingly, the order was quashed and the matter was directed to be reconsidered by this Tribunal as to whether the reliefs Nos.

(a) and (b) can be granted. Accordingly, the matter was taken up by this Tribunal.

12. In the meanwhile, the 4th applicant died and her LRs have been brought on record as additional applicants Nos. 12 and 13.

13. Heard both sides and examined the records.

14. The following points arise for consideration in the light of rival contentions:

i) Whether relief sought in the OA is barred by delay, acquiescence and laches.

ii) Whether the relief as sought in the Original Application can be granted in the absence of a challenge to Annexure A2.

iii) Whether the relief sought in the Original Application is hit by the principles of res judicata or constructive res judicata in the light of Annexure A8 order of this Tribunal in OA No. 157 of 2013.

iv) Whether on merits, the claim set up by the applicants is sustainable.

v) Reliefs and costs.

15. Point No. (i): The specific contention of the learned counsel for the respondents is that the relief sought in the Original Application is hit by delay, acquiescence and laches on the part of the Original Applicants. The claim sought in the Original Application is that absorption as Staff Nurse is bad and that they ought to have been absorbed in the posts of Nursing Sisters. Annexure A2 is the order of absorption, by which they were appointed as Staff Nurses. The said office order is dated 19.12.2011. The Original Application is filed almost 4 years thereafter on 29.10.2015. The reason as to why the applicants have not approached this Tribunal earlier is not at all explained. It is seen that the first representation which is Annexure A4 is submitted by them only in the year 2013. The applicants have acquiesced to the situation did not challenge Annexure A2 and has filed this Original Application after a long period of 4 years. The delay is also not sought to be explained. Hence, the Original Application is barred by the principles of delay, acquiescence and laches.

16. Point No. (ii): The learned counsel for the respondents vehemently challenged the contention in the Original Application on the ground that neither the absorption policy nor Annexure A2 was challenged in the

Original Application. By Annexure A2, which is the formal office order, the applicants were absorbed as Staff Nurses. Evidently, it was preceded by the terms of absorption policy or document of absorption. The said details are not forthcoming. It is admitted by the applicants in Annexure A6 representation that the ESI hospital was taken over on 16.4.2010 by the ESI Corporation. Thereafter, the staff were on deemed deputation. Later by Annexure A2 order the applicants were absorbed as Staff Nurses. Evidently, there must have been documents evidencing the terms of absorption. Since such materials are not on record, the exact terms of the absorption are not available. The basic documents in relation to absorption are not forthcoming nor challenged. Annexure A2 can only be the last document issued by which formally the applicants along with others were absorbed. Even Annexure A2 is not challenged. Without challenging Annexure A2, an independent relief of declaration that they are liable to be absorbed as Nursing Sisters contrary to the recitals of Annexure A2 is not legally sustainable.

17. This has another limb also. In Annexure A1 it is specifically stated that the applicants have agreed to abide by all the terms and conditions set out in the enclosure of letter dated 14.6.2011 referred to in Annexure

A2. The details of above terms and conditions are also not available.

18. Point No. (iii): It is pertinent to note that prior to this Original Application, the applicants had approached this Tribunal in OA No. 157 of 2013. The various reliefs sought in that Original Application touched upon the service conditions consequent to the absorption. One of the reliefs sought was to protect the institutional seniority of them. The Original Application was disposed of by Annexure A8 order directing the respondents to finalize the seniority list, if not already finalized, within a period of three months. This clearly shows that the applicants had approached this Tribunal earlier seeking some reliefs. The reliefs now sought, ought to have been agitated in that OA. In other words, by not seeking the relief now sought by them in an Original Application filed after absorption, but prior to this Original Application, the challenge and grounds which ought to have been made the subject matter of this Original Application cannot be agitated in this OA. Hence, the applicants are precluded by the principles of res judicata and constructive res judicata in urging those contentions at this stage. On that ground also the reliefs sought cannot be granted.

19. During the pendency of the Original Application, the applicants had filed MA No. 255 of 2017 seeking amendments incorporating various grounds including a challenge to Annexure A2. Those grounds touch on the relief sought in this OA. The amendment application was dismissed by order dated 28.3.2017. That order was challenged by the applicants before the Hon’ble High Court of Kerala in OP (CAT) No. 110 of 2017. However, it seems that when the OP (CAT) was taken up on 11.4.2017 the learned counsel for the petitioner submitted that they do not wish to pursue the Original Petition and permission was sought to withdraw the same. No permission was sought to agitate the issue afresh. So, without granting any leave, the OP (CAT) was dismissed. The amendments sought and the pleadings therein have a bearing on the reliefs sought in the OA. Hence, the dismissal of the amendment application MA No. 255 of 2017 has become final in the absence of any challenge. That will also operate as constructive res judicata against the applicants and forbid them for agitating those grounds which they did not pursue.

20. Point No. (iv): Advancing the contention that even on merits the claim set up by the applicants is not sustainable, several grounds were urged by learned counsel appearing for the various respondents. All the respondents contended that applicants are not entitled to claim that they should be appointed as Nursing Sisters in the absence of any material to establish that ESI Corporation had offered to absorb them as Nursing Sisters. Applicants in fact has no case that any offer was made by the ESIC, that on absorption the applicants would be posted as Nursing Sisters. Absolutely no document is forthcoming to show that ESIC had ever offered to absorb them as Nursing Sisters. In fact, Annexure A1 which is an option exercised by the 1st applicant which was in tune with the options exercised by the remaining, the applicant had only opted for State level seniority. She undertook to abide by all terms and conditions set out in the enclosure to the letter dated 14.6.2011 referred to in Annexure A1. Evidently, the terms and conditions of absorption were set out in the enclosure along with the letter dated 14.6.2011. Neither the letter nor the enclosure was produced. In other words, the terms and conditions of absorption are not brought on record. On the other hand, there is absolutely nothing to show that the respondents had offered to absorb the applicants as Nursing Sisters. In the absence of any such material to show that any such offer was made, the relief as sought cannot be granted.

21. It was contended by the learned counsel for the party respondents that the applicants can be posted as Nursing Sisters only if it is established that the post held by them at the time of absorption was equivalent to the post of Nursing Sister under the ESIC. The ESI Corporation in the reply statement had specifically contended that the equivalent post of the Nursing Sister in the ESIC was that of Head Nurse. This is clear from the chart produced in the Original Application which shows that the post of Head Nurse in the State Government is equivalent to that of Nursing Sister. The corresponding post to Staff Nurse Grade-I and Staff Nurse Higher Grade is Staff Nurse itself. It was stated that the higher post of Nursing Sister claimed by the applicants can be offered to the applicants only on promotion after rendering the required service in ESI Corporation in the post of Staff Nurse and taking into consideration the seniority and other eligibility criteria provided in the Regulations mentioned. All the employees working in ESI Corporation on deputation like the applicants were given opportunity to opt to render their future service in the State Government or in the ESI Corporation and they had enough time to verify and examine the post in which they were entitled to be absorbed in the ESIC. Applicants were absorbed as Staff Nurse vide Annexure A2 order in the service of ESI Corporation without any condition whatsoever for their promotion and their option to be absorbed in the ESI Corporation was effected on the basis of the unconditional acceptance of the terms of absorption. It was not provided in the terms of absorption that applicants would be absorbed as Nursing Sister on their absorption. It was also stated that applicants who have been occupying the post of Staff Nurse Higher Grade and Staff Nurse Grade-I in the service would be absorbed as Staff Nurse and not as a Nursing Sister, which is a higher post in the cadre equivalent to the Head Nurse.

22. It was also stated in paragraph 9 of the reply statement of the ESI Corporation that each of the applicants got a higher pay of more than Rs. 6,000/- net gain on absorption. It is also stated that all the applicants were granted the arrears for the period from 3rd November to 6th December, and they accepted it. These factual aspects are not disputed.

23. It was further contended by the learned counsel for the applicant that their contention that the basic pay was lesser than that received by them is not sustainable in the light of the decision of this Tribunal in OA

No. 985 of 2013 - Jose Koruth & Ors. v. Director General, ESIC & Anr. and in the decision of the Hon’ble Supreme Court in State Bank of India v. K.P. Subbaiah & Ors. [(2003) 11 SCC 646]. In Jose Koruth’s case (supra) identical contention was set up. Declining the above, it was noticed that one of the attractions which prompted the State Government employees to exercise the option for getting themselves absorbed in ESIC was that the age of superannuation in ESIC was 60 years, whereas it was only 56 years in the State Government. Secondly, other allowances namely Transport Allowance, HRA were on the higher side in ESIC. The contention that the basic pay was less was declined referring to K.P. Subbaiah’s case (supra).

24. In K.P. Subbaiah’s case (supra), the Supreme Court had held that when a question of pay protection arises, the basic feature was that the fitment or fixation of pay in a particular scale must be such as to ensure that the total emoluments are not reduced. Further, the contention raised by the applicants Jose Koruth’s case (supra) that the consideration should not be based on total emoluments but only on the basic pay was rejected by this Tribunal relying on K.P. Subbaiah’s case (supra). Accordingly, the applicants are not entitled to any relief as sought.

25. Point No. (v): In the light of the above conclusions, it is to be conclusively held that the applicants are not entitled for any of the reliefs. The Original Application fails and is accordingly, dismissed. No order as to costs.

(V. RAMA MATHEW)

(JUSTICE SUNIL THOMAS) ADMINISTRATIVE MEMBER JUDICIAL MEMBER

“SA”

Original Application No. 180/00872/2015

1. Annexure A1 - True copy of the willingness given by the 2nd applicant dated 20.6.2011.

2. Annexure A2 - True copy of the order dated 19.12.2011 absorbing the applicants as Staff Nurse.

3. Annexure A3 - True copy of the letter No. 544/A/11/11/EHP/10ADMN dated 20.12.2010 from the 4th respondent to the 2nd respondent.

4. Annexure A4 - True copy of the representation submitted collectively by the applicants dated 18.2.2013.

5. Annexure A5 - True copy of the representation submitted by the 4th applicant dated nil.

6. Annexure A6 - True copy of the representation dated 22.9.2015 sent by 1st applicant.

7. Annexure A7 - True copy of the representation dated 22.9.2015 sent by 4th applicant.

8. Annexure A8 - True copy of the final order dated 5.2.2015 in OA 157/13 of this Hon'ble Tribunal.

9. Annexure A8(a) - True copy of the relevant pages of the order No. E5-16637/2008/DIMS dated 17.9.2008 issued by the Director of Insurance Medical Services, Thiruvananthapuram.

10. Annexure A8(b)- True copy of the circular No. U- 11/11/Rajajinagar/2005-Med.VI/Int.Cell dated 27.2.2012 issued by the Deputy Director, Employees State Insurance Corporation (Integ. Cell) to the 5th respondent.

11. Annexure A8(c)- True copy of the relevant pages of the office order No. 198 of 2015 dated 29.10.2015 issued by the Employees State

Insurance Corporation.

12. Annexure A9 - True copy of the payment of absorption as par 2nd applicant.

13. Annexure A10 - True copy of the letter dated 4.6.2013.

14. Annexure A11 - True copy of the pay fixed in the office of ESIC Paripally.

15. Annexure A12 - True copy of the Government order No. 272/2015 dt. 1.12.2015.

16. Annexure A13 - True copy of the letter No. F. No. 545/A/22/11/CHE/Admn/2013 dated 7.7.2016.

17. Annexure A14 - True copy of the office order No. 542/A/27/22/MHA/08 dt. 22.11.2016.

18. Annexure A15 - True copy of the office order No. EMHA- Mumbai/Recruit/DPC/1150/2013 dt. 30.12.2013.

19. Annexure A16 - True copy of the final seniority list of Staff Nurse in ESIC Model & Super Speciality Hospital, Asramam, Kollam dt. 31.12.2009.

20. Annexure A17 - True copy of the office order F. No. A/33/14/Pro/Absor/Kerala/Med-IV dt.16.3.2016.

21. Annexure A18 - True copy of the seniority list dt. 7.2.2017.

22. Annexure A19 - True copy of the death certificate bearing No. D0040340-20220819547 dated 30.1.2026 issued by the Registrar of Births & Deaths, Ezhukone Grama Panchayat.

23. Annexure A20 - True copy of the certificate bearing No. A4- 14561/2022/KDis dated 10.2022 issued by the Tahsildar, Taluk Office, Kottakara.

24. Annexure R7(a)- True copy of the order dated 26.10.2016 in MA Nos. 1210 of 2015 and 1102 of 2016 in OA No. 627 of 2016 of this Hon'ble Tribunal.

25. Annexure R7(b)- True copy of the order dated 5.4.2017 of this Hon'ble Tribunal.

26. Annexure R7(c)- The terms and conditions of permanent absorption of the applicants.

-x-x-x-x-x-x-x-x-