Holding

The ESIC Recruitment Regulations 2015, having statutory effect under the Employees’ State Insurance Act, supersede the DACP Scheme and the Office Memorandum, rendering the respondents ineligible for promotion under the DACP Scheme.

Summary

The Employees’ State Insurance Corporation (ESIC) appealed against a Karnataka High Court order that had upheld promotions of its teaching staff under the Dynamic Assured Career Progression (DACP) Scheme. The respondents, who joined ESIC as Assistant Professors between February 2014 and June 2016, claimed promotion to Associate Professor after two years of service based on the DACP Scheme advertised in ESIC recruitment notices. The Supreme Court examined whether the DACP Scheme, an Office Memorandum dated 29 October 2008, could override the ESIC Recruitment Regulations 2008 and 2015, which required four and five years of service respectively and were made under Sections 17 and 97 of the Employees’ State Insurance Act, 1948. The Court held that the regulations have statutory effect and therefore prevail over the DACP Scheme and the advertisements, and that no estoppel can bind the corporation against its statutory obligations. Consequently, the appeal was allowed, the High Court judgment set aside, and the seniority list revised in accordance with the 2015 regulations.

Issues considered

The applicability of the DACP Scheme to promotion of ESIC teaching cadre versus the ESIC Recruitment Regulations 2008 and 2015
Whether an Office Memorandum implementing the DACP Scheme can override statutory regulations made under the ESI Act
Whether advertisements mentioning the DACP Scheme create enforceable rights for employees
Whether the appellant is estopped by its earlier concession before the CAT and High Court
Whether the ESIC Recruitment Regulations 2015 were validly issued with prior Central Government approval under Section 17(2)(a) of the ESI Act

Legislation cited

Employees' State Insurance Act, 1948s. 17(1), s. 17(2)(a), s. 17(3), s. 97(1), s. 97(3)

Subjects

service lawpromotionstatutory regulationsDACP SchemeOffice MemorandumestoppelEmployees' State Insurance Actrecruitment regulationsadvertisement vs rules

Judgment

[2022] 1 S.C.R. 373 373

THE EMPLOYEES’ STATE INSURANCE CORPORATION A
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 152 of 2022)
JANUARY 20, 2022 B
[DR. DHANANJAYA Y CHANDRACHUD AND A. S.
BOPANNA, JJ.]
ESIC Recruitment Regulations 2015: Respondent 3 to 25
joined the service of the ESIC Model Hospital as Assistant Professors
C
on different dates, between 07 February 2014 and 26 June 2016 –
The advertisements issued by the appellant mentioned that the DACP
Scheme would be applicable for its recruits – On completing two
years in the post of Assistant Professor, Respondents 3 to 25 made
representations to the appellant seeking promotion to the grade of
Associate Professor, and instituted proceedings claiming the benefit D
of the DACP Scheme – CAT directed the appellant to consider their
case under DACP scheme – Appellant filed writ petition challenging
the order of CAT – High Court dismissed the writ petition – On
appeal, held: On the dates when the contesting respondents joined
the service of the appellant, their promotions were governed by the
E
ESIC Recruitment Regulations 2008 which came into effect on 2
May 2009 and mandated four years of qualifying service for
promotion from Assistant Professor to Associate Professor – When
the contesting respondents had completed two years of service, they
were governed by the ESIC Recruitment Regulations 2015 which
came into effect on 5 July 2015 and mandated five years of F
qualifying service for promotion from Assistant Professor to
Associate Professor – Thus, the DACP Scheme facilitating promotion
on the completion of two years of service is not applicable to the
contesting respondents, when the regulations have a statutory effect
that overrides the Office Memorandum dated 29 October 2008 which
G
implemented the DACP Scheme – 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 H
373
374 SUPREME COURT REPORTS [2022] 1 S.C.R.

A supporting the correct position of law before this Court – There
can be no estoppel against a statute or regulations having a statutory
effect.
Service law: Appointment/recruitment – It is a settled principle
of service jurisprudence that in the event of a conflict between a
B statement in an advertisement and service regulations, the latter
shall prevail.
Allowing the appeal, the Court
HELD: 1. The ESIC Recruitment Regulations 2008 were
issued by the ESIC in the exercise of its powers under Section
C 97(1) and Section 17(3) of the ESI Act. These regulations
introduced the cadre of Specialist (Teaching) in the ESIC and
governed all appointments to the teaching faculty posts in ESIC
Medical Colleges. The ESIC Recruitment Regulations 2008
embodied a requirement of four years’ service as Assistant
D Professor for promotion as an Associate Professor. The ESIC
Recruitment Regulations 2015 which were made on 5 July 2015
stipulated a requirement of five years’ service as Assistant
Professor for promotion to the post of Associate Professor. The
preamble of the ESIC Recruitment Regulations 2015 notes that
these regulations were to supersede the ESIC Recruitment
E Regulations 2008 and were made with the approval of the Central
Government. The ESIC Recruitment Regulations 2008 and 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. [Paras 12, 13][387-G-H; 388-A-B, F]
F Sukhdev Singh v. Bhagatram Sardar Singh Raghuvansh
(1975) 1 SCC 421 : [1975] 3 SCR 619; Sant Ram
Sharma v. State of Rajasthan AIR 1967 SC 1910 : [1968]
SCR 111; Himalayan Coop. Group Housing Society v.
Balwan Singh (2015) 7 SCC 373 : [2015] 4 SCR 616 –
G followed.
Pepsu Road Transport Corporation, Patiala v. Mangal
Singh and Others (2011) 11 SCC 702 : [2011] 6 SCR
564; Union of India v. Majji Jangamayya (1977) 1 SCC
606 : [1977] 2 SCR 28 – referred to.
H
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 375

2. On the dates when the contesting respondents joined A
the service of the appellant- 07 February 2014 till 26 June 2016
- their promotions were governed by the ESIC Recruitment
Regulations 2008 which came into effect on 2 May 2009 and
mandated four years of qualifying service for promotion from
Assistant Professor to Associate Professor. When the contesting
B
respondents had completed two years of service, they were
governed by the ESIC Recruitment Regulations 2015 which came
into effect on 5 July 2015 and mandated five years of qualifying
service for promotion from Assistant Professor to Associate
Professor. Thus, the DACP Scheme facilitating promotion on the
completion of two years of service is not applicable to the C
contesting respondents, when the regulations have a statutory
effect that overrides the Office Memorandum dated 29 October
2008 which implemented the DACP Scheme. [Para 19][393-F-H]
3. The advertisements issued by the appellant mentioned
that the DACP Scheme would be applicable for its recruits. D
However, it is a settled principle of service jurisprudence that in
the event of a conflict between a statement in an advertisement
and service regulations, the latter shall prevail. The contesting
respondents urged that the advertisements indicated the
applicability of the DACP Scheme before the ESIC Recruitment
Regulations 2015 were issued. However, a subsequent E
amendment to recruitment regulations would override the
conditions prescribed in the advertisement. [Paras 20, 22]
[394-A-B; 395-B]
Malik Mazhar Sultan v. U.P. Public Service Commission
(2006) 9 SCC 507 : [2006] 3 SCR 689; Ashish Kumar F
v. State of Uttar Pradesh (2018) 3 SCC 55 : [2018] 1
SCR 695; Rajasthan Public Service Commission v.
Chanan Ram (1998) 4 SCC 202 : [1998] 1 SCR 1099
– referred to.
4. The contesting respondents submitted that the appellant G
is estopped from urging that the DACP Scheme is not applicable
to the Teaching Cadre at the ESIC since they have taken this
stance before the CAT and in its writ petition before the High
Court. While this Court expresses its disapproval at the lack of
proper instructions being tendered to the Counsel of the H
376 SUPREME COURT REPORTS [2022] 1 S.C.R.

A appellant, there can be no estoppel against a statute or regulations
having a statutory effect. [Para 23][396-A-B]
Nedunuri Kameswaramma v. Sampati Subba Rao AIR
1963 SC 884: [1963] SCR 208 – referred to.
5. The CAT and the High Court failed to notice the
B 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
C 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.
[Para 26][398-B-C]

D C Sankarnarayanan v. State of Kerala (1971) 2 SCC
361 : [1971] 0 Suppl. SCR 654; Union of India v. Ashok
Kumar Aggarwal (2013) 16 SCC 147 : [2013] 12 SCR
629; State of Uttar Pradesh v. U.P. Rajya Khanij Vikas
Nigam Sangharsh Samiti (2008) 12 SCC 675 : [2008]
7 SCR 536; Raminder Singh v. State of Punjab (2016)
E 16 SCC 95 : [2016] 5 SCR 310; Y V Rangaiah v. J
Sreenivasa Rao 1983 (3) SCC 284; State of UP v.
Mukesh Narain (2013) 4 SCC 169 : [2013] 4 SCR 534;
B L Gupta v. MCD (1998) 9 SCC 223; P D Aggarwal v.
State of U.P. (1987) 3 SCC 622 : [1987] 3 SCR 427;
F Director of Elementary Education, Odisha v. Pramod
Kumar Sahoo (2019) 10 SCC 674 – referred to.
Case Law Reference
[1971] 0 Suppl. SCR 654 referred to Para 6 (vii)
[2008] 7 SCR 536 referred to Para 6 (ix)
G
[2016] 5 SCR 310 referred to Para 6 (xi)
1983 (3) SCC 284 referred to Para 7 (x)
[2013] 4 SCR 534 referred to Para 7 (x)

H
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 377

(1998) 9 SCC 223 referred to Para 7 (x) A
[1975] 3 SCR 619 followed Para 13
[2011] 6 SCR 564 referred to Para 14
[1968] SCR 111 followed Para 15
[2013] 12 SCR 629 referred to Para 16 B
[1987] 3 SCR 427 referred to Para 17
[1977] 2 SCR 28 referred to Para 18
[2006] 3 SCR 689 referred to Para 20
C
[2018] 1 SCR 695 referred to Para 21
[1998] 1 SCR 1099 referred to Para 22
[1963] SCR 208 referred to Para 23
[2015] 4 SCR 616 followed Para 24
D
(2019) 10 SCC 674 referred to Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 152 of
2022.
From the Judgment and Order dated 05.09.2019 of the High Court
of Karnataka at Bengaluru in Writ Petition No.24808 of 2018 (S-CAT). E
Santosh Krishnan, Yakesh Anand, Ms. Sonam Anand, Advs. for
the Appellant.
Yatindra Singh, Sr. Adv., Anand Sanjay M Nuli, M/s Nuli & Nuli,
Advs. for the Respondents.
F
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A Introduction...............................................................3*
B Submissions..............................................................5*
G
C Analysis..................................................................12*
D Conclusion..............................................................26*

Ed. Note - *denotes the actual pagination in the Original Judgment.
H
378 SUPREME COURT REPORTS [2022] 1 S.C.R.

A A Introduction
1. Leave granted.
2. The Employees’ State Insurance Corporation1 is in appeal against
a judgment of a Division Bench of the Karnataka High Court dated 5
September 2019. The Division Bench rejected the petition filed by the
B appellant against the promotion of the contesting respondents -
Respondent 3 to 25, to the post of “Associate Professor” under the
Dynamic Assured Career Progression 2 Scheme as opposed to the
appellant’s recruitment regulations.
3. ESIC, the appellant, is a statutory body constituted under the
C Employees’ State Insurance Act 19483. The recruitment and promotion
of its teaching staff are governed by the Employees’ State Insurance
Corporation (Medical Teaching Faculty Posts) Recruitment Regulations
20154 which came into effect on 5 July 2015. Respondent 3 to 255 joined
the appellant as Assistant Professors at ESIC Model Hospital, Rajajinagar,
D Bengaluru. They joined service between 7 February 2012 and 26 June
2014. The Central Government, through the Central Health Service
Division of the Ministry of Health and Family Welfare, had issued the
DACP Scheme through an Office Memorandum dated 29 October 2008.
The DACP Scheme contemplated promotion as Associate Professor
upon completion of two years of service in the post of Assistant Professor
E as an officer under the Ministry of Health and Family Welfare. After
two years of service as Assistant Professor on 2 February 2017, the
contesting respondents sought promotion under the DACP Scheme and
instituted proceedings before the Central Administrative Tribunal6,
Bengaluru.
F 4. On 7 February 2018, the CAT relied on the submission by the
Counsel for the appellant and held that the ESIC Recruitment Regulations
2015 were not relevant for adjudication of the matter. The CAT also
relied on a letter dated 23 September 2014 addressed by the Joint Director
of ESIC to the Dean of ESIC which mentioned the implementation of
the DACP Scheme to the Medical Officer Cadres. Thus, the CAT directed
G
1
“ESIC” (interchangeably referred to as the appellant)
2
“DACP”
3
“ESI Act”
4
“ESIC Recruitment Regulations 2015”
5
interchangeably referred to as “contesting respondents”
6
H “CAT”
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 379
[DR. DHANANJAYA Y CHANDRACHUD, J.]

the appellant to consider the contesting respondents for promotion under A
the DACP Scheme.
5. The appellant challenged the order of the CAT in a writ petition
before the High Court of Karnataka. The High Court dismissed the
petition on 5 September 2019 by holding that:
(i) Since the contesting respondents were recruited before the B
ESIC Recruitment Regulations 2015 came into effect, they
would get the benefit of the DACP Scheme;
(ii) The DACP Scheme has statutory effect under Section 17
of the ESI Act. The ESIC Recruitment Regulations 2015
have departed from the DACP Scheme without seeking C
the prior approval of the Central Government; and
(iii) Counsel for the appellant conceded that the appellant would
implement the DACP Scheme and the ESIC Recruitment
Regulations 2015 do not apply.
B Submissions D
6. Mr Santhosh Krishnan, appearing on behalf of the appellant
has urged the following submissions:
(i) The appellant is an autonomous statutory corporation
incorporated under the ESI Act. It is within the
administrative control of the Ministry of Labour and E
Employment of the Government of India;
(ii) Section 97 of the ESI Act confers power on the appellant
to frame its own regulations. The terms and conditions of
service of Assistant Professors are governed by the ESIC
Recruitment Regulations 2015. These regulations stipulate F
that a minimum of five years of qualifying service as
Assistant Professor is mandatory for promotion as
Associate Professor. The ESIC Regulations 2015 cannot
be overridden by the DACP Scheme;
(iii) The Office Memorandum dated 29 October 2008
G
implementing the DACP Scheme is applicable to employees
of the Ministries and Departments of the Central
Government, but not a statutory body like the ESIC. The
text of the DACP Scheme makes it clear that the Office
Memorandum applies to employees of the Ministry of
Health, subject to an appropriate amendment in the H
380 SUPREME COURT REPORTS [2022] 1 S.C.R.

A recruitment rules. Thus, the DACP Scheme does not
override or supersede statutory regulations made under the
ESI Act;
(iv) Section 17(2) permits the ESIC to depart from the conditions
of service applicable to employees of the Central
B Government, subject to prior approval of the Central
Government. Section 97(3) empowers the ESIC to frame
regulations that are deemed to have the same effect as
statutory provisions;
(v) The contesting respondents joined the ESIC Medical College
C and PGIMSR, Rajajinagar, Bengaluru as Assistant
Professors on different dates between 7 February 2014 and
26 June 2016. These Respondents were governed by the
Employees’ State Insurance Corporation (Medical Teaching
Faculty Posts) Recruitment Regulations, 20087;

D (vi) The High Court incorrectly held that the conditions for
promotion from Assistant Professor to Associate Professor
were governed by the DACP Scheme on the ground that
the ESIC Recruitment Regulations 2015 were inapplicable
to the contesting respondents. The ESIC Recruitment
Regulations 2008 were gazetted on 2 May 2009 and
E stipulated four years of qualifying service for promotion
from Assistant Professor to Associate Professor. Therefore,
none of the contesting respondents would have completed
four years of service before the ESIC Recruitment
Regulations 2015 came into effect, i.e. on 3 July 2015;
F (vii) Under the ESIC Recruitment Regulations 2008, the
contesting respondents became eligible for promotion after
the ESIC Recruitment Regulations 2015 came into effect.
Thus, the operation of ESIC Regulations 2015 in regard to
their service conditions cannot be ignored and there can be
no estoppel against legislative action. This Court, in C
G
Sankarnarayanan v. State of Kerala8, has held that there
is no estoppel against legislative action concerning service
conditions;

7
“ESIC Recruitment Regulations 2008”
8
H (1971) 2 SCC 361
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 381
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(viii) It is settled law that in the event of an inconsistency or A
conflict between a statutory provision and an executive
instruction, the former must be given effect. This Court in
Union of India v. Ashok Kumar Aggarwal9 has held that
government-issued memorandums or executive instructions
can be used only to supplement the statutory rules but not
B
to supplant them;
(ix) The appellant’s counsel mistakenly made a concession
before the CAT when they stated that the ESIC Recruitment
Regulations 2015 would not govern the matter. However,
this incorrect concession does not amount to estoppel against
statutory regulation. This has been held by this Court in C
State of Uttar Pradesh v. U.P. Rajya Khanij Vikas
Nigam Sangharsh Samiti10;
(x) The High Court has incorrectly recorded that the ESIC
Recruitment Regulations 2015 were issued without approval
from the Central Government. The preamble to the ESIC D
Recruitment Regulations 2015 explicitly states that the
regulations were made after approval of the Central
Government;
(xi) The submission of the contesting respondents that the
advertisement issued by the appellant contemplated the E
application of the DACP Scheme, is irrelevant to the
adjudication of the matter. It is settled law that if an
advertisement is inconsistent with recruitment rules, the rules
would prevail, as held by this Court in Malik Mazhar
Sultan v. UPSC11, Ashish Kumar v. State of UP12 and F
Raminder Singh v. State of Punjab13;
(xii) The applicability of the DACP to non-teaching staff of the
ESIC is irrelevant since the ESIC Recruitment Regulations
2015 specifically govern “Medical Teaching Faculty Posts”;
and G

9
(2013) 16 SCC 147
10
(2008) 12 SCC 675
11
(2006) 9 SCC 507, para 21
12
(2018) 3 SCC 55, para 27
13
(2016) 16 SCC 95, paras 24 and 25 H
382 SUPREME COURT REPORTS [2022] 1 S.C.R.

A (xiii) Except in three cases, the contesting respondents have been
granted promotions upon completion of five years of regular
service, in accordance with the ESIC Recruitment
Regulations 2015.
7. Mr Yatindra Singh, Senior Counsel and Mr Anand Sanjay M
B Nuli, appearing on behalf of the contesting respondents, Respondent 3
to 25, has urged the following submissions:
(i) The Office Memorandum dated 29 August 2008 extended
the DACP Scheme to all Medical doctors, whether belonging
to Organized Services, or holding isolated posts. It also
C directed all Ministries/Departments to implement the DACP
Scheme. By another Office Memorandum dated 29 October
2008, the Government of India extended the DACP Scheme
to various sub-cadres of the Central Health Service,
including the teaching cadre. Under Section 17(2)(a) of the
ESI Act, the DACP Scheme is binding on the appellant;
D
(ii) The ESIC Recruitment Regulations 2008, which stipulate
four years of qualifying service for promotion from Assistant
Professor to Associate Professor, were issued without the
approval of the Central Government;
E (iii) The appellant has issued advertisements on 19 August 2011,
12 December 2012 and once in 2013 for the post of Assistant
Professor by stating “Promotional avenues in the
Department are available under DACP guidelines of Govt.
of India”. The contesting respondents joined the services
of the appellant as Assistant Professors in Pay Band-3 with
F a grade pay of Rs. 6600/- pursuant to various recruitment
advertisements of the appellant;
(iv) On 23 September 2011, the appellant addressed a letter to
the Dean of ESIC Dental College by stating that “the existing
recruitment regulations are under active process of revision
G vis-à-vis provisions of the DACP Scheme”;
(v) The ESIC Recruitment Regulations 2015 were issued
without obtaining prior approval from the Central
Government, as contemplated under Section 17(2)(a) of the
ESI Act;
H
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 383
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(vi) After the contesting respondents instituted an application A
before the CAT, the Assistant Director (Med), CSIC,
Headquarter Office addressed a letter to the Medical
Superintendent of the ESIC Model Hospital, Rajaji Nagar,
Bangalore on 26 December 2017 stating that “a proposal
for considering promotion under DACP Scheme…. is under
B
process”;
(vii) The appellant admitted before the CAT and even in its writ
petition before the High Court that the DACP Scheme is
applicable to its employees and that it is willing to be bound
by the DACP rules. The argument that the DACP Scheme
is inapplicable to the contesting respondents is being raised C
for the first time before this Court;
(viii) The DACP Scheme has statutory force under Section 17
of the ESI Act. The DACP Scheme was made on 29
October 2008, before the enforcement of the ESIC
Recruitment Regulations 2008 on 2 May 2009. Since the D
ESIC Recruitment Regulations 2008 were issued without
approval of the Central Government mandated under Section
17(2)(a) of the ESI Act, they do not override the DACP
Scheme;
(ix) The ESIC Recruitment Regulations 2015 were also issued E
without the “prior approval” mandated under Section
17(2)(a) of the ESI Act. The appellant has not furthered
any evidence to indicate that prior approval was taken and
this has been noted by the High Court;
(x) The appellant is estopped from denying the applicability of F
the DACP Scheme to the contesting respondents since they
made such a representation in their recruitment
advertisements. The contesting respondents have acted on
such representations to quit their existing jobs. Reliance is
placed on a decision of this Court in Y V Rangaiah v. J G
Sreenivasa Rao14;
(xi) Even if the ESIC Recruitment Regulations 2015 were held
to be validly issued, the contesting respondents had already

14
1983 (3) SCC 284, para 9 H
384 SUPREME COURT REPORTS [2022] 1 S.C.R.

A completed two years of service before they came into
effect, on 5 July 2015. Therefore, the contesting respondents
should be considered for promotion in accordance with the
DACP Scheme, in view of the decisions of this Court in
State of UP v. Mukesh Narain 15 and B L Gupta v.
MCD 16 ;
B
(xii) All the contesting respondents had three or more years of
teaching experience before they joined the appellant as
Assistant Professors. The qualifying service of five years
under the ESIC Recruitment Regulations 2015 should be
given a reasonable interpretation and the cumulative
C experience of more than five years should be held sufficient
for promotion;
(xiii) The doctors and medical teaching staff in the Central
Government are being promoted in accordance with the
DACP Scheme. The arbitrary denial of the DACP Scheme
D to the contesting respondents’ Teaching Cadre of the
appellant violates Article 14, especially when they are also
discharging functions of attending to patients and performing
specialised clinical work; and
(xiv) In other legal proceedings, the appellant has taken the stance
E that the DACP scheme is applicable to its employees with
effect from 01 March 2008 itself.
8. The rival submissions will now be analysed.
C Analysis
F 9. The crux of the dispute is about determining the 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. On 29 October 2008, the Sixth Central
Pay Commission recommended the extension of the DACP Scheme to
G
all doctors in employment of the Central Government. The
recommendations were accepted by the Union Ministry of Health and
Family Welfare through an Office Memorandum dated 29 October 2008

15
(2013) 4 SCC 169
16
H (1998) 9 SCC 223
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 385
[DR. DHANANJAYA Y CHANDRACHUD, J.]

which extended the DACP Scheme to Medical and Dental Doctors in A
the Central Government. In continuation of the Office Memorandum,
the Government of India issued another Office Memorandum dated 29
October 2008 detailing promotion under DACP in various cadres under
the Ministry of Health and Welfare. The Scheme enabled promotion
from the post of Assistant Professor to Associate Professor after two
B
years of service:
“B. Teaching Sub Cadre

C

D

E

(emphasis supplied) F
10. The controversy in the present appeal arises out of the
interpretation of Section 17(2)(a) of the ESIC Act 1948 and the
applicability of the Office Memorandum dated 29 October 2008 against
the ESIC Recruitment Regulations 2008 and the subsequently issued
ESIC Recruitment Regulations 2015. Section 17 of the ESI Act 1948 G
provides as follows:
“17. Staff.—(1) The Corporation may employ such other staff of
officers and servants as may be necessary for the efficient
transaction of its business, provided that the sanction of the Central
Government shall be obtained for the creation of any post the H
386 SUPREME COURT REPORTS [2022] 1 S.C.R.

A maximum monthly salary of which exceeds such salary as may
be prescribed by the Central Government.
(2)(a) 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
B 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:
Provided that where the Corporation is of the opinion that
C 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:
Provided further that this sub-section shall not apply to appointment
of consultants and specialists in various fields appointed on contract
basis,
D
(b) In determining the corresponding scales of pay of the members
of the staff under clause (a), the Corporation shall have regard to
the educational qualifications, method of recruitment, duties and
responsibilities of such officers and employees under the Central
Government and in case of any doubt, the Corporation shall refer
E the matter to the Central Government whose decision thereon
shall be final…….”
(emphasis supplied)
11. Section 97 of the ESI Act empowers the ESIC to frame
regulations. The regulations are deemed to have the same effect as
F statutory provisions:
“97. Power of Corporation to make regulations.—(1) The
Corporation may, subject to the condition of previous
publication, make regulations, not inconsistent with this
Act and the rules made thereunder, for the administration
G of the affairs of the Corporation and for carrying into effect
the provisions of this Act.
(2) In particular and without prejudice to the generality of the
foregoing power, such regulations may provide for all or any of
the following matters, namely—
H […..]
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 387
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(xvi) the appointment of medical practitioners for the purposes A
of this Act, the duties of such practitioners and the form of
medical certificates;
[…..]
(xxi) the method of recruitment, pay and allowances, discipline,
superannuation benefits and other conditions of service of the B
officers and servants of the Corporation other than the [Director
General and Financial Commissioner;
[…..]
(xxiii) any matter in respect of which regulations are required C
or permitted to be made by this Act.
(2-A) The condition of previous publication shall not apply to any
regulations of the nature specified in clause (xxi) of sub-section
(2).
(3) Regulations made by the Corporation shall be published D
in the Gazette of India and thereupon shall have effect as if
enacted in this Act.
(4) Every regulation shall, as soon as may be, after it is made by
the Corporation, be forwarded to the Central Government and
that Government shall cause a copy of the same to be laid before E
each House of Parliament, while it is in session for a total period
of thirty days, which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the
F
regulation or both Houses agree that the regulation should not be
made, the regulation shall thereafter have effect only in such
modified form or be of no effect, as the case may be, so, however,
that any such modification or annulment shall be without prejudice
to the validity of anything previously done under that regulation.”
(emphasis supplied) G

12. The ESIC Recruitment Regulations 2008 were issued by the
ESIC in the exercise of its powers under Section 97(1) and Section
17(3) of the ESI Act. These regulations introduced the cadre of Specialist
(Teaching) in the ESIC and governed all appointments to the teaching
faculty posts in ESIC Medical Colleges. The ESIC Recruitment H
388 SUPREME COURT REPORTS [2022] 1 S.C.R.

A Regulations 2008 embodied a requirement of four years’ service as
Assistant Professor for promotion as an Associate Professor. The ESIC
Recruitment Regulations 2015 which were made on 5 July 2015 stipulated
a requirement of five years’ service as Assistant Professor for promotion
to the post of Associate Professor. The preamble of the ESIC Recruitment
Regulations 2015 notes that these regulations were to supersede the
B
ESIC Recruitment Regulations 2008 and were made with the approval
of the Central Government:
“….ln exercise of the powers conferred by sub-section (1) of
Section 97, read with clause(xxi) of sub-section (2) and sub-section
(2A) of the said section and sub-section (3) of section 17 of the
C
Employees’ State Insurance Act, 1948 (34 of 1948) and in
supersession of the Employees State Insurance Corporation
(Medical Teaching Faculty posts) Recruitment Regulations, 2008
published in the Gazette of India vide No.A-12(11 )11/2008-Med.-
IV dated the 2nd May, 2009, except as respects things done or
D omitted to be done before such supersession, the Employees’
State Insurance Corporation hereby makes, with the
approval of the Central Government, the following
regulations for regulating the method of recruitment to the
medical teaching faculty posts in the Employees’ State
Insurance Corporation’s medical colleges, namely:- …”
E
(emphasis supplied)
13. 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
F authorities have the force of enacted law. A Constitution Bench in
Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi 17
considered the regulations framed by several statutory authorities
considered as “State” within the terms of Article 12. Chief Justice A N
Ray held that the regulations have the same effect of law and bind the
statutory authorities:
G
“21. The characteristic of law is the manner and procedure adopted
in many forms of subordinate legislation. The authority making
rules and regulation must specify the source of the rule and

17
H (1975) 1 SCC 421
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 389
[DR. DHANANJAYA Y CHANDRACHUD, J.]

regulation making authority. To illustrate, rules are always framed A
in exercise of the specific power conferred by the statute to make
rules. Similarly, regulations are framed in exercise of specific power
conferred by the statute to make regulations. The essence of law
is that it is made by the law-makers in exercise of specific authority.
The vires of law is capable of being challenged if the power is
B
absent or has been exceeded by the authority making rules or
regulations.
[…]
23. The noticeable feature is that these statutory bodies have no
free hand in framing the conditions and terms of service of their C
employees. These statutory bodies are bound to apply the terms
and conditions as laid down in the regulations. The statutory bodies
are not free to make such terms as they think fit and proper.
Regulations prescribe the terms of appointment, conditions of
service and procedure for dismissing employees. These regulations
in the statutes are described as “status fetters on freedom of D
contract”. The Oil and Natural Gas Commission Act in Section
12 specifically enacts that the terms and conditions of the
employees may be such as may be provided by regulations. There
is a legal compulsion on the Commission to comply with
the regulations. Any breach of such compliance would be a E
breach of the regulations which are statutory provisions.
In other statutes under consideration viz. the Life
Insurance Corporation Act and the Industrial Finance
Corporation Act though there is no specific provision
comparable to Section 12 of the 1959 Act the terms and
conditions of employment and conditions of service are F
provided for by regulations. These regulations are not only
binding on the authorities but also on the public.”
(emphasis supplied)
14. A two-judge Bench of this Court in Pepsu Road Transport G
Corporation, Patiala v. Mangal Singh and Others18 interpreted a
similar power to frame regulations under the Road Transport Corporations
Act 1950. This Court held that regulations made under the statute have
the force of law:
18
(2011) 11 SCC 702 H
390 SUPREME COURT REPORTS [2022] 1 S.C.R.

A “29. It is well-settled law that the regulations made under the statute
laying down the terms and conditions of service of the employees,
including the grant of retirement benefits, have the force of law.
The regulations validly made under the statutory powers are binding
and effective as the enactment of the competent legislature. The
statutory bodies as well as general public are bound to comply
B
with the terms and conditions laid down in the regulations as a
legal compulsion. Any action or order in breach of the terms and
conditions of the regulations shall amount to violation of the
regulations which are in the nature of statutory provisions and
shall render such action or order illegal and invalid.”
C 15. Respondent 3 to 25 joined the service of the ESIC Model
Hospital, Rajajinagar, Bengaluru as Assistant Professors on different
dates, between 07 February 2014 and 26 June 2016. On completing two
years in the post of Assistant Professor, Respondent 3 to 25 made
representations to the appellant seeking promotion to the grade of
D Associate Professor, claiming the benefit of the DACP Scheme. The
Preamble to the ESIC Recruitment Regulations 2015, recites that the
prior approval of the Central Government, as necessitated by Section
17(2) of the ESI Act was duly sought. In the event of a conflict between
an executive instruction, an office memorandum in this case, and statutory
regulations – the latter prevail. A Constitution Bench in Sant Ram Sharma
E v. State of Rajasthan19 considered the applicability of the letters issued
by the Government of India detailing the administrative practice for
promotions, against the Indian Police Service (Regulation of Seniority)
Rules, 1954. The Constitution Bench held that:
7. We proceed to consider the next contention of Mr N.C.
F Chatterjee that in the absence of any statutory rules governing
promotions to selection grade posts the Government cannot issue
administrative instructions and such administrative instructions
cannot impose any restrictions not found in the Rules already
framed. We are unable to accept this argument as correct. It is
G true that there is no specific provision in the Rules laying down
the principle of promotion of junior or senior grade officers to
selection grade posts. But that does not mean that till statutory
rules are framed in this behalf the Government cannot issue

19
H AIR 1967 SC 1910
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 391
[DR. DHANANJAYA Y CHANDRACHUD, J.]

administrative instructions regarding the principle to be followed A
in promotions of the officers concerned to selection grade posts.
It is true that Government cannot amend or supersede
statutory rules by administrative instructions, but if the rules
are silent on any particular point Government can fill up
the gaps and supplement the rules and issue instructions
B
not inconsistent with the rules already framed.”
(emphasis supplied)
16. In Union of India v. Ashok Kumar Aggarwal20 a two judge
Bench of this Courtspeaking in the context of service regulations
governing a departmental enquiry re-iterated that an office order or office C
memorandum cannot contravene statutory rules. Justice B S Chauhan
noted the position in law in the following terms:
“59. The law laid down above has consistently been followed
and it is a settled proposition of law that an authority cannot
issue orders/office memorandum/executive instructions in D
contravention of the statutory rules. However, instructions
can be issued only to supplement the statutory rules but
not to supplant it. Such instructions should be subservient
to the statutory provisions. (Vide Union of India v. Majji
Jangamayya [(1977) 1 SCC 606 : 1977 SCC (L&S) 191] , P.D.
Aggarwal v. State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S) E
310 : (1987) 4 ATC 272] , Paluru Ramkrishnaiah v. Union of
India [(1989) 2 SCC 541 : 1989 SCC (L&S) 375 : (1989) 10 ATC
378 : AIR 1990 SC 166] , C. Rangaswamaiah v. Karnataka
Lokayukta [(1998) 6 SCC 66 : 1998 SCC (L&S) 1448] and Joint
Action Committee of Air Line Pilots’ Assn. of India v. DG of F
Civil Aviation [(2011) 5 SCC 435 : AIR 2011 SC 2220] .)”
(emphasis supplied)
17. In P D Aggarwal v. State of U.P.21 a two judge Bench of this
Court declined to grant primacy to an Office Memorandum issued by
the Government of Uttar Pradesh which purportedly amended the method G
of recruitment of Assistant Civil Engineers in the U.P. Public Service
Commission without amending the relevant regulations. The Court held:

20
(2013) 16 SCC 147
21
(1987) 3 SCC 622 H
392 SUPREME COURT REPORTS [2022] 1 S.C.R.

A “20. The office memorandum dated December 7, 1961 which
purports to amend the United Provinces Service of
Engineers (Buildings and Roads Branch) Class II Rules,
1936 in our opinion cannot override, amend or supersede
statutory rules. This memorandum is nothing but an
administrative order or instruction and as such it cannot
B
amend or supersede the statutory rules by adding something
therein as has been observed by this Court in Sant Ram
Sharma v. State of Rajasthan [AIR 1967 SC 1910 : (1968) 1
SCR 111 : (1968) 2 LLJ 830] . Moreover the benefits that
have been conferred on the temporary Assistant Engineers who
C have become members of the service after being selected by the
Public Service Commission in accordance with the service rules
are entitled to have their seniority reckoned in accordance with
the provisions of Rule 23 as it was then, from the date of their
becoming member of the service, and this cannot be taken away
by giving retrospective effect to the rules of 1969 and 1971 as it is
D
arbitrary, irrational and not reasonable.”
(emphasis supplied)
18. The contesting respondents have referred to certain letters
and to an internal communication of the appellant to urge that the DACP
E Scheme was to be implemented for promotions at the appellant. However,
these letters, similar to the Office Memorandum dated 29 October 2008
implementing the DACP Scheme, would not have the force of law until
they were enforced through an amendment to the recruitment regulations.
In considering a similar factual situation, a three-judge Bench of this
Court in Union of India v. Majji Jangamayya22 held that:
F
“31. The second question is whether the requirement of 10 years’
experience was a statutory rule. The High Court held that the
requirement of 10 years’ experience is not a statutory rule.
Counsel for the respondents contended that the
requirement of 10 years’ experience is statutory because
G the letter dated January 16, 1950 is by the Government of
India and the Government of India has authority to frame
rules and one of the letters dated July 21, 1950 referred to
it as a formal rule. The contention is erroneous because

22
H (1977) 1 SCC 606
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 393
[DR. DHANANJAYA Y CHANDRACHUD, J.]

there is a distinction between statutory orders and A
administrative instructions of the Government. This Court
has held that in the absence of statutory rules, executive
orders or administrative instructions may be made.
(See CIT v. A. Raman & Company [AIR 1968 SC 49 : (1968) 1
SCR 10 : 67 ITR 11] )
B
[….]
34. Counsel on behalf of the respondents contended that the
requirement of 10 years’ experience laid down in the letter dated
January 16, 1950 had the force of law because of Article 313.
Article 313 does not change the legal character of a document. C
Article 313 refers to laws in force which mean statutory laws. An
administrative instruction or order is not a statutory rule. The
administrative instructions can be changed by the Government by
reason of Article 73(1)(a) itself.
[….] D
36. The expression “ordinarily” in the requirement of 10 years’
experience shows that there can be a deviation from the
requirement and such deviation can be justified by reasons.
Administrative instructions if not carried into effect for good
reasons cannot confer a right. (See P.C. Sethi v. Union of E
India [(1975) 4 SCC 67 : 1975 SCC (L&S) 203 : (1975) 3 SCR
201] .)….”
(emphasis supplied)
19. On the dates when the contesting respondents joined the service
of the appellant - 07 February 2014 till 26 June 2016 - their promotions F
were governed by the ESIC Recruitment Regulations 2008 which came
into effect on 2 May 2009 and mandated four years of qualifying service
for promotion from Assistant Professor to Associate Professor. When
the contesting respondents had completed two years of service, they
were governed by the ESIC Recruitment Regulations 2015 which came
G
into effect on 5 July 2015 and mandated five years of qualifying service
for promotion from Assistant Professor to Associate Professor. Thus,
the DACP Scheme facilitating promotion on the completion of two years
of service is not applicable to the contesting respondents, when the
regulations have a statutory effect that overrides the Office Memorandum
dated 29 October 2008 which implemented the DACP Scheme. H
394 SUPREME COURT REPORTS [2022] 1 S.C.R.

A 20. The advertisements issued by the appellant mentioned that
the DACP Scheme would be applicable for its recruits. However, it is a
settled principle of service jurisprudence that in the event of a conflict
between a statement in an advertisement and service regulations, the
latter shall prevail. In Malik Mazhar Sultan v. U.P. Public Service
Commission23 a two-judge Bench of this Court clarified that an
B
erroneous advertisement would not create a right in favour of applicants
who act on such representation. The Court considered the eligibility
criteria for the post of Civil Judge (Junior Division) under the U.P. Judicial
Service Rules, 2001 against an erroneous advertisement issued by the
U.P. Public Service Commission and held:
C “21. The present controversy has arisen as the advertisement
issued by PSC stated that the candidates who were within the
age on 1-7-2001 and 1-7-2002 shall be treated within age for the
examination. Undoubtedly, the excluded candidates were of eligible
age as per the advertisement but the recruitment to the service
D can only be made in accordance with the Rules and the error, if
any, in the advertisement cannot override the Rules and create a
right in favour of a candidate if otherwise not eligible according to
the Rules. The relaxation of age can be granted only if permissible
under the Rules and not on the basis of the advertisement. If the
interpretation of the Rules by PSC when it issued the
E advertisement was erroneous, no right can accrue on basis thereof.
Therefore, the answer to the question would turn upon the
interpretation of the Rules.”
21. In Ashish Kumar v. State of Uttar Pradesh24 a two-judge
Bench of this Court followed the decision in Malik Mazhar Sultan
F (supra) in interpreting an advertisement issued by the Director, Social
Welfare Department, Uttar Pradesh for the position of a psychologist.
This Court declined to give precedence to the erroneous qualifications
prescribed in the advertisement against the relevant recruitment rules
and held:
G “27. Any part of the advertisement which is contrary to the
statutory rules has to give way to the statutory prescription. Thus,
looking to the qualification prescribed in the statutory rules, the

23
(2006) 9 SCC 507 [“Malik Mazhar Sultan”]
H 24
(2018) 3 SCC 55
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 395
[DR. DHANANJAYA Y CHANDRACHUD, J.]

appellant fulfils the qualification and after being selected for the A
post denying appointment to him is arbitrary and illegal. It is well
settled that when there is variance in the advertisement and in the
statutory rules, it is the statutory rules which take precedence….”
22. The contesting respondents urged that the advertisements
indicated the applicability of the DACP Scheme before the ESIC B
Recruitment Regulations 2015 were issued. However, a subsequent
amendment to recruitment regulations would override the conditions
prescribed in the advertisement. In Rajasthan Public Service
Commission v. Chanan Ram 25 a two-judge Bench of this Court
heldthat an earlier advertisement becomes infructuous after a subsequent
amendment to the service rules: C

“13. Under these circumstances, therefore, it is difficult to
appreciate how the Division Bench of the High Court could
persuade itself in agreeing with the submission of the learned
counsel for the respondent-writ petitioner that despite this change
of cadres and the provision for recruitment on new posts the old D
advertisement of 5-11-1993 Annexure P-1 seeking to consider
the candidature of applicants for erstwhile 23 advertised vacancies
in the posts of Assistant Directors (Junior) in the Agricultural
Marketing Service of the State of Rajasthan would still be pursued
further and recruitment should be effected for these 23 erstwhile E
vacancies as per the old advertisement. It is easy to visualise that
even if such an earlier advertisement of 5-11-1993 was proceeded
with further it would have resulted into a stalemate and an exercise
in futility. No appointment could have been given to the
selected candidates to the posts of Assistant Directors
(Junior) after 1995 amendment of Rules as there were no F
such posts in the hierarchy of State Service. Consequently
it must be held that on account of the amendments to the
Rajasthan Agricultural Marketing Service Rules the earlier
advertisement dated 5-11-1993 had become infructuous and
otiose. Only on this short ground the writ petition of the G
respondent-writ petitioner should have been dismissed by
confirming the order of dismissal of the writ petition earlier passed
by the learned Single Judge…….”
(emphasis supplied)
25
(1998) 4 SCC 202 H
396 SUPREME COURT REPORTS [2022] 1 S.C.R.

A 23. The contesting respondents submitted that the appellant is
estopped from urging that the DACP Scheme is not applicable to the
Teaching Cadre at the ESIC since they have taken this stance before
the CAT and in its writ petition before the High Court. While this Court
expresses its disapproval at the lack of proper instructions being tendered
to the Counsel of the appellant, there can be no estoppel against a statute
B
or regulations having a statutory effect. In Nedunuri Kameswaramma
v. Sampati Subba Rao26 a three-judge Bench of this Court decided a
central point of the dispute in favour of a party, irrespective of the
concession of its Counsel since it was on a point of law. Justice M
Hidayatullah (as the learned Chief Justice then was), speaking on behalf
C of the Court observed:
“20. From the above analysis of the documents, it is quite clear
that the documents on the side of the appellant established that
this was a Karnikam service inam, and the action of the Zamindar
in resuming it as such, which again has a presumption of
D correctness attaching to it, clearly established the appellant’s case.
Much cannot be made of a concession by counsel that this
was a Dharmilainam, in the trial court, because it was a
concession on a point of law, and it was withdrawn. Indeed,
the central point in the dispute was this, and the concession
E appears to us to be due to some mistake or possibly
ignorance not binding on the client. We are thus of opinion
that the decision of the two courts below which had concurrently
held this to be jeroyti land after resumption of
the Karnikam service inam, was correct in the circumstances of
the case, and the High Court was not justified in reversing it.”
F
(emphasis supplied)
24. In Himalayan Coop. Group Housing Society v. Balwan
27
Singh a three-judge Bench of this Courtclarified the law of agency
with respect to client-lawyer relationships. The Court held that while
G generally admissions of fact by counsel are binding, neither the client
nor the court is bound by admissions as to matters of law or legal
conclusions:

26
AIR 1963 SC 884
27
H (2015) 7 SCC 373
THE EMPLOYEES’ STATE INSURANCE CORP. v. UNION OF INDIA 397
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“32. Generally, admissions of fact made by a counsel are binding A
upon their principals as long as they are unequivocal; where,
however, doubt exists as to a purported admission, the court should
be wary to accept such admissions until and unless the counsel or
the advocate is authorised by his principal to make such admissions.
Furthermore, a client is not bound by a statement or admission
B
which he or his lawyer was not authorised to make. A lawyer
generally has no implied or apparent authority to make an
admission or statement which would directly surrender or
conclude the substantial legal rights of the client unless
such an admission or statement is clearly a proper step in
accomplishing the purpose for which the lawyer was C
employed. We hasten to add neither the client nor the court
is bound by the lawyer’s statements or admissions as to
matters of law or legal conclusions. Thus, according to
generally accepted notions of professional responsibility, lawyers
should follow the client’s instructions rather than substitute their
D
judgment for that of the client. We may add that in some cases,
lawyers can make decisions without consulting the client. While
in others, the decision is reserved for the client. It is often said
that the lawyer can make decisions as to tactics without consulting
the client, while the client has a right to make decisions that can
affect his rights.” E
(emphasis supplied)
25. Recently, a two-judge Bench of this Court in Director of
Elementary Education, Odisha v. Pramod Kumar Sahoo28 observed
that a concession on a question of law concerning service rules would
not bind the State: F

“11. The concession given by the learned State Counsel before
the Tribunal was a concession in law and contrary to the statutory
rules. Such concession is not binding on the State for the reason
that there cannot be any estoppel against law. The rules provide
G
for a specific grade of pay, therefore, the concession given by the
learned State Counsel before the Tribunal is not binding on the
appellant.”

28
(2019) 10 SCC 674 H
398 SUPREME COURT REPORTS [2022] 1 S.C.R.

A The concession of the Counsel for the appellant before the CAT
does not preclude the finding on the law that is arrived at by this Court.
D Conclusion
26. The CAT and the High Court failed to notice the applicability
of the ESIC Recruitment Regulations 2015 to the promotions of the
B 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
C before the CAT does not stand in the way of the appellant supporting the
correct position of law before this Court.
27. 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
D as per Section 17(2) of the ESI Act is obviated by the preamble to the
ESIC Recruitment Regulations 2015. The contesting respondents have
only supported the applicability of the DACP Scheme to claim promotion
as Associate Professor after two years of service. The advertisements
for recruitment mentioning the DACP Scheme would have no effect
since they were in contravention of the applicable recruitment regulations.
E Therefore, for the above reasons, we are of the view that the appeal
should be allowed.
28. The appeal is accordingly allowed and the impugned judgement
and order of the Division Bench of the Karnataka High Court dated 5
September 2019 is set aside. As a consequence, the revised seniority list
F 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.
29. The appeal is disposed of in the above terms.
30. Pending application(s), if any, shall stand disposed of.
G

Devika Gujral Appeal allowed.

H