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O.A. No. 2151/2014

Reserved On:29.04.2015
Pronounced On:06.05.2015




Udai Veer Singh

S/o Shiv Pal Singh
ESI, Dispensary,

Mayur Vihar Delhi.


Mayank Sharma

S/o H K Sharma
ESI Hospital Jhilmil,


Rahul Nimiya

S/o Om Prakash
ESI Dispensary Mayur Vihar


Mahender Kumar Meena

S/o Babu Lal

ESI Dispensary
Mayapuri II Delhi.


Shri Prakash Shukla

S/o Ram Bihal Shukla

ESI Dispensary,
Noida Sector 57 U.P.


Sanchit Barua

S/o Late Shri Bimal Barua

ESI Dispensary,
Noida Sector 57 U.P.


Hira Singh

S/o J S Negi
ESI Dispensary,
Noida Sector 57 U.P.


Suresh Sariwan

S/o Punaoo Ram sariwan

ESI Dispensary,
Noida Sector 57 U.P.


Jagdish Prasad

S/o Late Shri Phool Singh

ESI Dispensary,

Noida Sector 57 U.P.


Swati Gupta

D/o Suresh Kumar Gupta

ESI Dispensary Tilak Vihar


Raminder Jeet Singh

S/o Inder Jeet Singh

ESI Central Store Delhi.

12. Himanshu Bansal

S/o R P Bansal
ESI Central Store Delhi.


Lovneet Khurana

S/o S L Khurana
ESI Dispensary Tilak Vihar Delhi.


Mahesh Kumar

S/o Mahaveer Singh

ESI Dispensary Tigri Delhi.


Prakash Chand Meena

S/o Lakshmi Chand Meena

ESI Dispensary Tigri Delhi.


Rekha Yadav

W/o Chandra Prakash Yadav

ESIC, Dispensary,Tigri


Chandra Prakash Yadav

S/o Nand Lal Yadav

ESI Dispensary Mehrauli Delhi.


Om Prakash Jaat

S/o Raghunath Prasad Jaat

ESI Dispensary Mehrauli Delhi.


Rajinder Churawat

S/o S L Churawat
ESIC, Hospital Gurgaon


Sanjay Kumar

S/o Ramji Lal

ESIC Hospital Gurgaon Haryana


Sunil Mehto

S/o Ramji Mehto

ESIC, Hospital Gurgaon


Praveen Kumar Dubey

S/o Ram Narain Dubey

ESIC, Hospital Baddi H.P.


Mani Sood

D/o Lakshman Dass Sood

ESIC, Hospital Baddi H.P.


Poonam Kumari

D/o Tara Dutt Sharma

ESIC, Hospital Baddi H.P.


Vinod Kumar Swami

S/o Asha Ram Swami

ESIC, Hospital Baddi H.P.


Gautam Singh Rawat

S/o narain Singh Rawat

ESI Dispensary Nand Nagri Delhi.


Vijay Kumar

S/o Late Shri Rajvir Singh

ESI Dispensary,
Noida Sectot 12 U.P.


Prabha Adhikari

W/o Sanjay Singh Adhikari

ESI Hospital Jhilmil Delhi.


Devender Kumar

S/o Dharmi Lal

ESI Dispensary Nand Nagri Delhi.


Renu Jaiswal

S/o Dr. Jai Prakash Jaiswal

ESI Dispensary,
Noida Sector 57 U.P.


By Advocate: Shri Sagar Saxena.



The Director General

ESIC Headquarters,
CIG Road, Panchdeep Bhawan,
New Delhi-110002.


Union of India
Ministry of Labour
Shram Shakti Bhawan,

Rafi Marg,New Delhi-110001.

By Advocate: Ms. Rekha Palli.



G. George Paracken, Member(J)

The Applicants in this Original Application are Pharmacists working with RespondentEmployees State Insurance Corporation ( ESIC for short). Their grievance is that they do not have
any promotional avenues as there is no cadre structuring created by the Respondents.
The ESIC runs a number of Hospitals and Dispensaries all over India. Various categories of
employees in Group A , B , C and D are posted there. They include Medical Officers,
Radiographers, Nursing Staff, Pharmacists, Nursing Orderlies. Lab. Technicians etc. The ESIC have
also made the Recruitment Rules for the aforesaid posts and got notified in the Official Gazette. The
Recruitment Rules for the post of Pharmacists has also been framed and notified in Gazette of India
on 21.05.2011. The educational qualification for the said post is as under:B. Pharmacy (i.e. 4 years technical degree course)/Sr. Secondary with Diploma in Pharmacy from a
recognized institution and qualified and registered as Pharmacist under Pharmacy Act, 1948 (Two
Years Diploma + 3 months training after Diploma) .

Some of the Applicants have been appointed in the year 1985 and since they have been working as
Pharmacists at the initial grade without having any promotional avenues. According to them, the
ESIC has not taken any decision on their various applications for creating promotional avenues as in
the case of similarly placed Pharmacists in other Hospitals under the Union and the State
Government. As a result, they will have to superannuate from the same post. On the other hand,
the other categories of employees like Doctors and Nurses employed by them in their various
Hospitals and Dispensaries, there are well defined cadre systems. As far as Doctors are concerned,
their initial appointment is against the post of IMO Grade-II. Then they are promoted to the grades
of IMO Grade-I, CMO, NFSG and SAG on time bound basis. As regards the Nurses are concerned,
they are initially appointed as Staff Nurse. Then they get periodical promotions in the higher grades
of Nursing Sister, Assistant Nursing Superintendent, Deputy Nursing Superintendent, Nursing
Superintendent and Chief Nursing Officer. In the case of Nursing Orderlies, which is the base cadre of
medical service in the ESIC, they have also multiple channel of promotions. Initially they join as
Nursing Orderly and then they have the avenues of promotion to the post of Jr. MRT/Dark Room
Assistant, CSSD Asstt./OT Asstt./Lab. Asstt. CSSD Technician/OT Technician/Sr.MRT, Sr. CSSD
Technician/Sr.OT Technician/Lab Technician/Blood Bank Technician/Radiographer, Sr. Technical
Assistant/Sr. Lab. Technician/Medical Record Officer/Sr. Technical Assistant Radiology etc.
In other organizations also, the Pharmacists have well defined cadre structure and
promotional avenues. In All India Institute of Medical Sciences ( AIIMS for short), the Pharmacists
initially join as Pharmacist Grade-II and then get their periodical promotions to the higher post of

Pharmacist Grade-I, Sr. Pharmacist/Manufacturing Pharmacist and Chief Pharmacist. The State of
Uttrakhand has got a cadre for their Pharmacist consisting of Pharmacist, Chief Pharmacist, Prabhari
Adhikari (Pharmacy), Vishesh Karya Adhikari and Up Nideshak (Pharmacy). The Health Department in
the State of Kerala, the cadre of Pharmacist consists of following posts:Sl.No.
Posts in the Pharmacist Cadre
Pharmacist Grade-II
Pharmacist Grade-I
Pharmacist Store Keeper
Stores Superintendent
(Hospitals) (Gazetted post)
Stores Verification Officer (District)
Stores Officer/FW/IPP
Stores Verification Officer
Asstt. Director (Medical Supplies)

The Applicants have also submitted that the Pharmacy Council of India ( PCI for short)
established under Section 3 of the Pharmacy Act, 1948 enacted by the Parliament on 04.03.1948
which is an Expert Statutory Body to regulate the profession of Pharmacy in the country has also
recommended to 5th Pay Commission regarding pay scales and service conditions of Pharmacist
with the following cadre structure vide its letter No.10-08-81-PCI/5013 dated 28.09.1995:-

Pay Scales

Pharmacist (30% of total strength)
Sr. Pharmacist (after 5 years of experience as Pharmacist) (30% of total strength)
Chief Pharmacist (after 7 years of experience) (30% of total strength)
10% of total strength should be in Sr. Group A Gazetted post
Pharmacy Officer (after 10 years of experience)
Asstt. Director (Pharmacy)
Dy. Director (Pharmacy)
Director (Pharmacy)
Equivalent to Director of Medical Education

The Department of Family Welfare, Government of NCT of Delhi has already constituted a
Committee under the Chairmanship of Dr. Jille Devi, Director, Health Services for the redressal of
similar grievance of the Pharmacists working in the Hospitals under them. The said Committee has
submitted its report in November, 2007. The relevant observations contained in the said report are
as under:-

After detailed deliberations the Committee feels that absence of higher placement promotional
avenues is an important fact in demoralizing the employees which in turn leads to disinterest and
sub-optimal performance. Moreover, due to these very reasons Govt. of NCT of Delhi is facing
problems in getting good quality technical staff. Hence, incorporation of promotional higher
placement avenues is a must as an employee welfare measure .

The Committee has also specially recommended the higher pay scales and Standardization of
designation with 5 tier promotional channel for the Pharmacists as detailed below:S.No.
Entry Level Recruitment
Senior Pharmacist
Ist Placement
Assistant Chief Pharmacist
2nd Placement
Additional Chief Pharmacist
3rd Placement
Chief Pharmacist
Promotion against Identified Post

However, as the GNCTD did not implement the aforesaid recommendations, the Pharmacists
working in Hospitals under them approached this Tribunal vide OA No.3233/2011 Pharmacy

Graduates Welfare Association and Another Vs. Govt. of NCT of Delhi and Others. Their grievance
was also that even after several years of service, they have not been given any promotion as there
was no cadre structuring and promotional avenue for them. The said OA was allowed by this
Tribunal vide order dated 24.04.2011 with its operative part as under:12. We have considered the matter carefully. As submitted by the learned counsel for the
applicants supported by various judgments, in the absence of clear cut cadre structure, the right of
consideration for promotion will remain only an empty principle. Therefore, it is necessary that the
respondents should create a proper cadre in different grades for the Pharmacists working in various
hospitals under the Govt. of NCT of Delhi. We also note that the respondents are already seized of
the matter and they are taking necessary steps in the said direction but we observe that the speed
with which it is moving is not very satisfactory. In view of the circumstances, we direct that the
respondents shall take expeditious steps to finalize the creation of a proper cadre structure for the
Pharmacists working under them within a maximum period of six months from the date of receipt of
a copy of this order. Accordingly, this O.A. is disposed of. There shall be no order as to costs .
The Applicants have also submitted that the Respondent-ESIC is treating them in a
discriminatory manner as they have considered even the request of the Stenographers working with
them and in its 158th meeting held on 10.11.2012 has approved the restructuring Stenographic
hierarchy in ESIC as below:S.No.
Name of post
Pay scale
Existing strength
Revised sanctioned strength
Principal Private Secretary
15600-39100 + G.Pay-6600 (PB-3)
Private Secretary
9300-34800 + GP 4800 (PB-2)

Personal Assistant
9300-34800 + GP 4600 (PB-2)
5200-20200 + GP 2400 (PB-1)



Further according to the learned counsel for the Applicants, right of consideration for
promotion is a fundamental right and in the absence of any promotional avenue, the said right is
worthless. In this regard he has relied upon the judgment of the Apex Court in the case of O.Z.
Hussain Vs. Union of India AIR 1980 SC 311. The relevant part of the said judgment reads as under:
7. This Court, has on more than one occasion, pointed out that provision for promotion increases
efficiency of the public service while stagnation reduces efficiency and makes the service ineffective.
Promotion is thus a normal incidence of service. There too is no justification why. while similarly
placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group
scientists in the establishment of Director General of Health Services would be deprived of such
advantage, In a welfare State, it is necessary that there should be an efficient public service and,
therefore, it should have been the obligation of the Ministry of Health to attend to the
representations of the Council and its members and provide promotional avenue for this category of
officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and
Technology with such alterations as may be necessary, appropriate rules should be framed within
four months from now providing promotional avenue for the 'A' category scientists in the nonmedical wing of the Directorate.

8. This Writ Petition is allowed and the following directions are issued:
1. Within four months from today, the Ministry of Health and Family Welfare of the Union of India
shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A'
Group scientists in the non-medical wing of the establishment of Director General of Health Services;
2. These 'A' Group scientists shall be entitled to book allowance, higher degree allowance, risk
allowance and conveyance allowance at the same rate as is admissible to doctors in the medical
wing in the Directorate w.e.f. 1-4-1989; and
3. Government shall examine the tenability of the within four months from today.
The Respondents have filed their reply and submitted that the Applicants have no right to
claim that the cadre structure in ESIC should be same as in AIIMS or any other State. They have also
stated that ACP and MACP Schemes have been provided to cater such situations where because of
the nature of job, there may not be any promotional avenues and the Applicants are also
beneficiaries of those Schemes.
The learned counsel for the Respondents has also relied upon the judgment of the Hon ble
High Court of Delhi in W.P. ( C) No.6233/2011 Anil Kumar Sharma Vs. U.O.I. & Others decided on
17.10.2011. The petitioners therein were Water Carriers, Barbers, Carpenters, Cooks, Painters etc.
called 'Followers' in BSF. They were tradesmen and used to render service commensurate with their
skills. Barbers were engaged in the trade of hair cutting and shaving. Carpenters were engaged in the
trade of carpentry, etc. etc. Their grievance was also that they do not have any promotional
avenues. The High Court dismissed their case observing what promotion can be made available to
Barbers and others. The relevant part of the said judgment reads as under:14. It is true that modern management and career planning lays emphasis on a system having
promotions for the reason, an organization recruits a person not for a job but a career, and
opportunity to advance one's career acts as an incentive for personal development which ultimately
benefits an organization. But instances of a single cadre post having no promotional avenue was
recognized by the Supreme Court in the decision reported as 2004 (9) SCC 65 State of Tripura & Ors.
vs. K.K.Roy, wherein the Supreme Court directed the State of Tripura to introduce the 'Scheme of
Assured Career Promotion' for the incumbent of the single cadre post, requiring the person to be
placed in the next higher grade after 12 years service and further in the next higher scale of pay on
completing 24 years service.
15. Recognizing that stagnation in the same pay-scale gives birth to discontent, after the Fifth
Central Pay Commission's recommendations were recommended, in the year 1999 an 'Assured
Career Progression' scheme was introduced by the Central Government as per which all those who
had no promotional avenues, or due to insufficient promotional posts, being otherwise competent
and fit, could not earn a promotion, it was put into place that upon completion of 12 years service
they would be placed in the next higher pay-scale and upon completion of 24 years service would be
placed in the next above pay-scale.
16. With the implementation of the recommendations of the Sixth Central Pay Commission, the
'Assured Career Progression Scheme' has been replaced by the 'Modified Assured Career
Progression Scheme' which grants benefit of 3 higher pay- scale placement to those who are

otherwise fit, but cannot earn a promotion; first after 10 years service, second after 20 years service
and third after 30 years service. These persons are placed in the next above higher pay-band or are
granted the grade-pay in the next above grade pay scale.
17. It is not in dispute that Followers upon upgradation to Group 'C' posts as Constable (Cook),
Constable (Waterman), Constable (Tradesman), Constable (Barber) are entitled to and are being
granted the benefit of the 'Modified Assured Career Progression Scheme and thus we see no scope
to interfere on a matter of policy and issue the mandamus sought for.
18. The writ petition is dismissed but without any order as to costs .
We have heard the learned counsel for the Applicants Shri Sagar Saxena and the learned
counsel for the Respondents Ms. Rekha Palli. In our considered view, the response of the
Respondents to the grievance of the Applicants is not appropriate. They are not justified in taking
the stand that the Applicants have no right to claim for a cadre structure and promotional avenues
as they are not bound to follow the cadre structures prevailing in AIIMS or in any other State. The
question is having a cadre structure suitable to the ESIC and not following the cadre structure of any
other Hospital or State Government. The Pharmacy Council of India has framed a model structure
and the ESIC is to adopt it with suitable changes, if necessary. They are also not justified in stating
that since the Applicants are entitled for ACP/MACP benefits, they cannot claim for any promotions.
The Government of India, DoP&T vide their OM No.35034/1/97-Estt.(D) dated 09.08.1999
introduced the ACP Scheme on the recommendation of the Vth CPC as a Safety Net to deal with
the problem of genuine stagnation and hardship faced by the employees due to lack of adequate
promotional avenues. It merely envisages placement in the higher pay-scale/grant of financial
benefits (through financial upgradation) only to the employee concerned on personal basis and shall,
therefore, neither amount to functional/regular promotion nor would require creation of new posts
for the purpose . MACP is only a modified version of ACP.
As rightly argued by the Applicants counsel, the right of consideration for promotion is a
fundamental right of an employee. Exceptions to the said right are very rare. Such a right can be
availed of only when there are avenues of promotion. Therefore, as far as possible, all organizations
should have well defined cadre structures thereby creating the avenues of promotion to their
employees. From the averments of the Applicants, it is seen that various State Governments and
other medical institutions like AIIMS have a well defined cadre structure for the Pharmacists and
they get their promotions timely. Moreover, 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. They have recommended a 7 level
cadre structure. An employee who joins initially as a Pharmacist can have 6 more promotions and
reach the level of Director (Pharmacy). Various other medical institutions have their own cadre
structure depending upon the number of employees and other requirements specific to them. The
ESIC is stated to have a strength of more than 500 Pharmacists working under them. Therefore, the
ESIC alone cannot claim immunity from creating a proper cadre structure to create the promotional
avenues for their existing employees working in the same post for several years.
In view of the above position, we allow this OA and direct the Respondent-ESIC to formulate
a proper cadre structure for the Pharmacists working under them and thereafter consider the
Applicants and other similarly placed persons for promotions to the higher grades so created. They

shall also suitably amend the existing Recruitment Rules for the post of Pharmacists. While doing so,
they may be guided by the recommendations of the Pharmacy Council of India and their own
specific requirement. They shall also set in motion of the cadre structure as early as possible but in
any case within a period of 4 months from the date of receipt of a copy of this order. There shall be
no order as to costs.





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