SHEENA H vs Employees State Insurance Corporation on 13 November 2026

O R D E R

Per: Justice Sunil Thomas, Judicial Member –

The sole applicant, aggrieved by Annexure A3 order dated 12.8.2021 issued by the ESI Corporation modifying her absorption post as that of Dental Technician instead of Dental Hygienist without notice has approached this Tribunal.

2. According to the applicant, she had successfully completed her Dental Hygienist course in 1st class in the year 1999 from Government Dental College, Thiruvananthapuram and obtained her registration under the Dental Council. She had completed B.A. Sociology with 1st class from Kerala University in 2019. She was appointed as a Dental Hygienist in the State Government service in year 2002 through Kerala Public Service Commission and joined ESI Hospital, Ferook, evidenced by Annexure A1 order dated 23.1.2002. While she was working in the ESI

Hospital, few hospitals of the Government of Kerala were taken over by the ESI Corporation in the year 2011. By Annexure A2 office memorandum dated 19.12.2011, her absorption, along with several other employees were approved by the Director General of ESIC. She was appointed as a Dental Hygienist in the pay scale of Rs. 5,200-20,200/- with Grade Pay of Rs. 2,400/-. According to the applicant, the pay scale of Dental Hygienist at present in the ESIC was in Pay Band-2 based on the VIIth Central Pay Commission recommendations at Rs. 9,300- 34,800/- with Grade Pay of Rs. 4,200/-. While so, Annexure A3 office memorandum was issued by the ESI Corporation after 10 years dated 18.8.2021 modifying the absorption of the applicant as that of Dental Technician on the ground that there was some anomaly while finalizing the absorption of ESIC, Udyogamandal. Thereby, her post was converted from Dental Hygienist to Dental Technician. According to the applicant, she is not qualified to be a Dental Technician. Further, the scale of pay of Dental Technician was in Pay Band-1 with Rs. 5,200-20,200/- with Grade Pay of Rs. 2,800/- under the VIIth CPC.

3. Contending that Annexure A3 was highly illegal and arbitrary, she submitted a representation. The relevant pages of dental and maxillofacial department staff is produced as Annexure A4. Contending that the unsettling of a settled position of the applicant’s post after a period of 10 years was illegal and amounted to violation of the principles of natural justice, the OA has been filed seeking the following reliefs: “A. Declare that the applicant is eligible to continue in the post of Dental Hygienist in Model and Super Speciality ESIC Hospital, Ashramam, Kollam as per Annexure A2 order of ESI.

B. Declare that Annexure A3 order issued by the 2nd respondent is illegal and is liable to be set aside.

C. Direct the respondents 1 to 4 to allow the applicant to continue in the post of Dental Hygienist after setting aside Annx. A3. ………. ….……

F. Declare that Annexure A14 order issued by the 1st respondent is illegal and liable to be set aside.”

4. Pending the OA, the respondents were directed to consider the representation submitted by the applicant and to pass a reasoned order. Accordingly, Annexure A14 order dated 12.7.2025 was passed which is challenged in the Original Application by incorporating relief No. (F).

5. The respondents Nos. 1 to 4 filed a joint reply statement contending that the applicant has approached this Tribunal suppressing truth and suggesting falsehood. It was contended that different running hospitals in Kerala were taken over by the ESI Corporation on “as is where is basis”

along with the staff in public interest, to maintain the continuity in functioning of the hospitals concerned. The employees of various State Governments working in such hospitals at the time of takeover were later absorbed in ESIC as per their option. Applicant was originally appointed as a State Government employee under the Government of Kerala wherein she was working as a Dental Hygienist and she got absorbed in ESI service as Dental Hygienist with effect from 4.3.2011. Later the administrative control of the ESIC Hospital, Parippally was given back to the State Government of Kerala. However, all the absorbed employees including the applicant wished to continue with the ESIC for the reason that there was higher pay and service length in ESIC. The applicant, at the time of absorption was working on a pay scale of Rs. 14,620-25,280/- which was equivalent to Rs. 5,200-20,200/- with Grade Pay of Rs. 2,400/-. After the 7th CPC, the pay of the Dental Technician was revised as Grade Pay of Rs. 2,800/- and the pay of Dental Hygienist was revised as Grade Pay of Rs. 4,200/-. The applicant has been allowed to serve her full service till the attainment of age of 60 years as per Rules. Hence, there would be no service loss as per her original service conditions. Her placement as Dental Technician was correct even in financial terms, keeping in view the pay scale drawn by her in the State Government as there is significant financial increase in her absorption emoluments. The pay fixation details were produced as Annexure R1.

6. While finalizing the absorption of ESIC Hospital, Udyogmandal it was observed that the employees of ESIC Hospitals Asramam and Paripally have been offered the post of Dental Hygienist inadvertently and there was no post sanctioned for Dental Hygienist in ESIC hospital. In fact, 2 posts existed in the ESIC cadre in ESIC Dental College, Rohini only. The Recruitment Rule for the post of Dental Technician with Grade Pay of Rs. 2,800/- after VIIth CPC and that of Dental Hygienist are separate with different qualifications. Since there was no sanctioned post for Dental Hygienist in ESIC hospital, the absorption to the said post was not possible and was a departure from standard provisions. Hence, ESIC was required to create a supernumerary post of Dental Hygienist or by relaxing the qualification to accommodate her to the post of Dental Tecnician by relaxing the qualification and utilizing her services against the sanctioned post. Competent authority has power to relax the eligibility criteria of a candidate if he/she is considered as otherwise well qualified for the post. Considering her case sympathetically, the competent authority in great departure from the eligibility conditions offered her the post of Dental Technician with expectation that she will learn the work of Dental Technician.

7. One Padmavathy Amma who pleaded for her absorption as Cyto Technologist. However, no such post was sanctioned in the cadre structure of ESIC. She was offered analogous post of Lab Technician during the absorption process. She filed Original Application against the ESIC as OA No. 59 of 2014. The case was decided in her favour. It was challenged by the ESIC by filing OP (CAT) No. 48 of 2018 which was allowed in favour of the ESI Corporation. The High Court observed that as far as ESIC was concerned since there was no such post or cadre it was not for the Tribunal to direct creation of such a post for an individual. As per Section 17(2)(A) of the ESI Act, the method of recruitment, salary, 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.

8. The applicant filed a rejoinder in answer to the reply contending that before issuing Annexure A3 the applicant was not given adequate opportunity of hearing nor any notice issued to her. It was stated that at the time of absorption by ESIC the applicant's pay scale in the State Government service was Rs. 14,620-25,280/- and basic pay was Rs. 16,980/-. The applicant’s pay scale fixed by the Corporation on 4.3.2011 was Rs. 5,200-20,200/- and the basic pay was Rs. 13,940/-. Later, by Annexure A5 order dated 31.12.2012, the Grade Pay of Dental Hygienist was changed from Rs. 2,400/- to Rs. 4,200/- and accordingly, the applicant’s Grade Pay was changed to Rs. 4,200/- with band pay of Rs. 11,540/- with effect from 21.5.2011. It was further stated that the respondents had sanctioned two posts of Dental Hygienist in Rohini Dental College. The draft seniority list of Dental Hygienist dated 31.3.2021 shows that in ESI hospitals of Delhi as on that date 5 Dental Hygienist were working. Further the draft seniority list of Dental Hygienist shows that 1 Dental Hygienist was absorbed from Karnataka State Service to ESIC on 31.3.2018. It was stated by the applicant that one Subash Kumar of ESI, Asramam was absorbed as Dental Hygienist. The absorption list of ESI, Asramam shows that they were appointed against the post of Dental Hygienist by changing the post of Dental Technician. The syllabus of Dental Mechanics and Dental Hygienists

differ from each other. The order dated 12th March, 2021 by which the nomenclature of the post of Dental Technician was changed as Dental Mechanic was produced as Annexure A7. At the time of absorption, there was no condition that Dental Hygienist would be promoted as B level and can be transferred to anywhere in India. The true copy of the order issued by the respondents addressed to the various Medical Superintendents relating to absorption was produced as Annexure A8. It was further stated that when Shri Subash Kumar was absorbed as Dental Hygienist he was approved against the post of Dental Technician. Annexure A9 is the relevant page of the order dated 19.7.2006 addressed to the Medical Superintendent, ESI model hospital, Kollam. Final seniority list of Karnataka region produced as Annexure A10 shows that 10 posts of Dental Hygienist existed in Karnataka region. On the basis of the above pleadings, it was sought that the Original Application may be allowed.

9. Pending the Original Application revision of man power of ESI, Asramam was conducted and Annexure A13 order dated 24.12.2024 was issued. As per Annexure A14, one post of Dental Hygienist was approved for ESIC, Super Speciality Hospital, Asramam which had 200 beds. In the light of the above, the applicant submitted Annexure A12

representation to the Director General, ESIC requesting to consider her for the above post. It was rejected by Annexure A14 order dated 7.3.2025, which is challenged in the amended OA.

10. Pursuant to the reply statement on the amended OA, an additional reply statement was filed by the respondents which was replied by filing a rejoinder, reiterating the earlier contentions.

11. When the matter came up for admission, though an interim stay of Annexure A3 order was sought, it was not granted. However, by order dated 7.9.2021 it was made clear that any further action as per Annexure A3 will be subject to the outcome of the Original Application. That order was challenged by the applicant before the Hon’ble High Court in OP (CAT) No. 22 of 2022. The Hon’ble High Court by judgment dated 18.3.2022 disposed of the Original Petition with a direction that the Original Application will have to be heard independently and, in the meanwhile, the petitioner was temporarily allowed to continue to work as Dental Hygienist and to that extent the operation of enforcement of Annexure A3 was kept in abeyance. Accordingly, the applicant is continuing as a Dental Hygienist.

12. Heard both sides and examined the records.

13. There is no dispute that by Annexure A1 order dated 23.1.2002 the applicant was appointed as a Dental Hygienist in the Insurance Medical Service of the State of Kerala. While she was continuing so, by Annexure A2 order issued by the HQ, ESI Corporation, New Delhi dated 19.12.2011, several Government staff working in the ESIC Hospital, Parippally, Kerala were absorbed. The applicant was absorbed as Dental Hygienist in the pay scale of Rs. 5,200-20,200/- with Grade Pay of Rs. 2,400/- in the ESI Corporation. After 10 years, by the impugned order Annexure A3 dated 12.8.2021 she was informed as follows: “While finalizing the absorption of ESIC Hospital, Udyogmandal, it was observed that the above-mentioned officials have been offered the post of Dental Hygienist inadvertently as there is no post sanctioned for Dental Hygienist in ESIC Hospitals. In fact, the RRs for the post exist in ESIC cadre structure with 02 posts sanctioned specifically for ESIC Dental College, Rohini only. The RRs for the post of Dental Technician (GP 2800 after 7th CPC) and Dental Hygienist (GP 4200) are separate with different qualifications.

The incorrect practice followed in absorption of employees in Asramam and Peripally Hospital to accommodate individual’s interest has attracted grievances for similar treatment by other officials resulting in avoidable administrative complications. Such incorrect absorption is a departure from standard provisions and is also against the public interest. The State Govt. employees are to be absorbed on analogous post in ESIC in a transparent manner duly taking into account the sanctioned strength of the unit, comparative functional channels in state government vis-à-vis that in ESIC.”

Accordingly, the applicant was posted as a Dental Technician in the ESIC in PB-1 with Grade Pay of Rs. 2,400/-. It shows that her earlier designation was Dental Hygienist in the pay scale of Rs. 14,620-25,280/-.

14. Annexure A3 is under challenge. While the OA was pending, 1 post of Dental Hygienist was allotted to the hospital, wherein the applicant is working. She submitted Annexure A12 representation seeking claim against that post, which was rejected by Annexure A14 which is also impugned in this Original Application. It was also declined on the ground that the appointments were strictly adhering to the Recruitment Rules and any deviation from it would not only be irregular, but would also set a wrong precedent encouraging similar demands, thereby undermining the integrity of the cadre control and recruitment process. It was stated that the claim made by the applicant was found to be without merit since the Recruitment Rules of Dental Hygienist clearly specifies direct recruitment as the only permissible mode of entry. There is no provision for promotion, deputation or absorption. Sanctioning of a post does not override the mandatory requirement to follow the prescribed method of recruitment. The Recruitment Rules are statutory and binding on all appointments.

15. Annexure A3 has definitely resulted in a serious consequence prejudicial to the applicant. It is an admitted fact that the posts of Dental Hygienist and Dental Technician are two distinct posts. In the reply statement as well as in the additional reply statements the respondents have admitted that both are governed by two different Recruitment Rules. The fact that the functions of the Dental Hygienist and the Dental Technician are substantially different is also evident from Annexure A4. The qualifications required for both are different. It is also evident that by Annexure A3 there is a considerable drop in the pay of the applicant, from which she was drawing prior to Annexure A3. It is also evident that the applicant was in the pay scale of Rs. 5,200-20,200/- with Grade Pay of Rs. 4,200/- as a Dental Hygienist and as a Dental Technician her pay scale was in PB-1 with Grade Pay of Rs. 2,400/-. Secondly, there also arises a question whether a person qualified and experienced as a Dental Hygienist can be posted as a Dental Technician, unilaterally.

16. The learned counsel for the ESI Corporation vehemently supported the contentions of the ESIC and supported Annexures A3 and A14 on the ground that there was no such post of Dental Technician at the time of absorption of the applicant. It was also contended that essentially the applicant’s interest stands protected compared to her post as a Dental Hygienist under the State Government. It was pointed out that the age of retirement in the State Government was 56 years and after absorption, the applicant was permitted to continue up to the age of 60 years. It was also stated that her placement as a Dental Technician was correct even in financial terms also considering her significant financial increase after the absorption. Thus, the applicant stood in a better position and the provision regarding retirement was well protected, it was contended.

17. Evidently, the respondents are comparing her pay prior to the absorption and that after 10 years, at the time of issuing Annexure A3. The contention that her retirement age stands increased and she gets better pay than that what she was enjoying prior to the absorption, definitely, ignoring the fact that she was drawing higher salary as a Dental Hygienist for about 10 years, cannot be accepted.

18. Evidently, the increase in the retirement age and the pay as a Dental Hygienist given to her was not a concession. It was only after such conditions were put to her that she opted for an absorption. Had this been brought to her notice, it is most likely that the applicant would have declined to accept it. Evidently, she has been considerably prejudiced.

19. In this regard there is absolutely nothing to show that the applicant was in any way responsible to this peculiar situation. The respondents have no case that the applicant misrepresented in any manner. It seems that the contention now set up by the ESI Corporation is admittedly due to a mistake from the part of the respondents themselves.

20. To substantiate the contention of the ESI Corporation, the learned counsel for the respondents invited our attention to the decision of the Hon’ble Supreme Court in Union of India & Ors. v. Narendra Singh [(2008) 2 SCC 750]. That was a case wherein a person was wrongly promoted as a Senior Accountant (Functional). After four years the Department realized that the promotion to the respondent was erroneous and that he was not qualified to be promoted. After giving notice to him he was ordered to be demoted which was under challenge before the Tribunal. The Tribunal allowed the Original Application. The order of the Tribunal was confirmed by the High Court. This was under challenge before the Hon’ble Supreme Court. Allowing the challenge, the Supreme Court held that there was a definite mistake on the part of the respondents in promoting the respondent, since he was not eligible and qualified. It was held that mistakes are mistakes and that they can always be corrected, by following due process of law. The Hon’ble Supreme Court relied on Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors. [(1997) 6 SCC 766] wherein it was held that if an erroneous promotion is given by wrongly interpreting the Rules, the employer cannot be prevented from applying the Rules rightly and in correcting the mistake.

21. The learned counsel for the respondents further relied on the decisions of the Hon’ble Supreme Court reported in J&K Public Service Commission & Ors. v. Narinder Mohan & Ors. [(1994) 2 SCC 630] and Aligarh Muslim University & Ors. v. Mansoor Ali Khan [(2000) 7 SCC 529]. Identical view was expressed in both the cases. A perusal of the said decisions, specifically the Narinder Mohan’s case (supra), indicates that the employee therein was not qualified under the Recruitment Rules. In such a case the Hon’ble Supreme Court held that a person cannot be wrongly appointed nor promoted.

22. Evidently, the case at hand is factually different. The respondents have no case that the applicant is not qualified nor experienced. She was absorbed as Dental Hygienist and continued to remain so for about 10 years. Now the only contention of the ESI Corporation is that there was no such post at the time of absorption. This is factually disputed by the applicant by contending that there were several posts of Dental Hygienist in various ESI hospitals, elsewhere, contrary to the contentions of the respondents. Further Annexure A3 order raises several questions which remain unanswered. By Annexure A1 order applicant was appointed as a Dental Hygeinst, on a pay scale applicable to such posts. Respondents have no explanation as to which post was, she appointed and how she was being paid at that pay scale for 10 years. Absolutely, no explanation is forthcoming in this regard. Without going further into these it is also brought on record that now a post has been created though it is to be filled up by direct recruitment or by promotion. Having considered this, at this length of time the respondents cannot also be permitted to act prejudicially. It is also pertinent to note that, not only that the applicant has completed 10 years of service as a Dental Hygienist prior to Annexure A3 and is continuing thereafter, pursuant to the interim order.

Necessarily the equities will have to be worked out.

23. A copy of the Employees State Insurance Corporation (Dental Hygienist) Recruitment Regulations, 2020 dated 19th October, 2020 issued by the Ministry of Labour and Employment has been placed before us. It shows that a Dental Hygienist is in the level 6 of pay matrix of Rs. 35,400-1,12,400/-. The mode of recruitment is clearly by direct recruitment. However, we note that by virtue of Rule 7 the Director General of Employees’ State Insurance Corporation is entitled to relax the provisions in relation to any class or category of persons. We find that the case at hand is a fit case wherein the 1st respondent is liable to exercise the power conferred on him under Rule 7 since it is only in the interest of the ESI Corporation, and in the absence of any contention that the applicant is not qualified nor experienced.

24. Accordingly, we are inclined to direct the 1st respondent to take steps to exercise the powers under Rule 7 of Employees State Insurance Corporation (Dental Hygienist) Recruitment Regulations, 2020 to seek relaxation in the case of applicant and to post her in the post now allotted to Asramam hospital and to issue orders accordingly regularising her entire service from Annexure A1 as that of Dental Hygienist with all service benefits. The 1st respondent shall try to pass an order as expeditiously as possible. We are not inclined to fix any time limit. The interim order granted by the Hon’ble High Court in the Original Petition (CAT) No. 22 of 2022 dated 18th March, 2022 will continue till such order is passed.

25. The Original Application is allowed to the extent as above. No order as to costs.

(V. RAMA MATHEW)

(JUSTICE SUNIL THOMAS) ADMINISTRATIVE MEMBER JUDICIAL MEMBER

“SA”

Original Application No. 180/00435/2021

APPLICANT’S ANNEXURES Annexure A1 – True copy of the order dated 23.1.2002 issued by the Kerala Public Service Commission.

Annexure A2 – True copy of the office order No. 2 of 2011 issued by ESIC, New Delhi dated 19.12.2011 approving the absorption by the Director General, ESIC, New Delhi.

Annexure A3 – True copy of the office order No. 7 of 2021 dated 12.8.2021 along with its covering letter dated 18.8.2021.

Annexure A4 – True copy of the relevant pages of the nature of duties of the dental and maxillofacial department staff.

Annexure A5 – True copy of the office order No. 75/12 File No. 544/A/27/21/EHP/12/Admin dated 31.12.12.

Annexure A6 – True copy of the draft seniority list of the Dental Hygienist as on 31.3.2008 and as on 1.11.2009 issued by the 2nd respondent 54-A24/14/1/2021-Med-Adm dated 20.4.2021.

Annexure A7 – True copy of the order F.No. A-12/11/1/2014- Med.VI(DT) dated 12th March, issued by the 2nd respondent by which the nomenclature of the post of Dental Technician was c hanged as Dental Mechanic.

Annexure A8 – True copy of the order No. A11/11/10/09 Med VI dated 13.6.11 issued by the respondent addressed to the Medical Superintendent, ESI Hospitals Parippally, Ezhukone, Udyogamandal, Naroda and Vapi relating to terms of absorption.

Annexure A9 – True copy of the relevant page of the order No. U11/11/Asramam/2005-Med IV dated 19.7.06 issued by the respondent addressed to the Medical Superintendent, ESI Model Hospital, Kollam.

Annexure A10 – True copy of the final seniority list of para medical staffs in Karnataka region as on 31.3.2018 issued by the Deputy Director (Med.Adm) vide memorandum No. 53.A.24.16.2017 RO.Med.(Adm) Partfile-II dated 22.5.2019.

Annexure A11 – True copy of the relevant pages of the office memorandum No. V-14/11/5/2019/POLICY/Med.I dated 2.2.2024 issued by the 1st respondent.

Annexure A12 – True copy of the representation dated 10.2.2024 submitted before the 1st respondent by the applicant through proper channel.

Annexure A13 – Revision of man power of ESIC Model Hospital Asramam per new Human Resource Norms for ESIC Hospitals and Dispensaries bearing No. F. No. A- 11011/23/2024-MED-VI issued by the Assistant Director ESIC.

Annexure A14 – True copy of order dated 12/7/2025 No. F. No. Z- 11/05/09/MedVI (Integ) Asramam PI-II issued by the issued by the Joint Director (Legal & Int).

Annexure A15 – True copy of the all India final seniority list of Dental Hygienist dated 11.12.2020 of ESIC.

RESPONDENTS’ ANNEXURES

Annexure R1 – True copy of details germane to pay fixation before and after revision of absorption.

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