Insurance Corporation Employees Congress, Hyderabad and Another vs Union of India and Others

Both the Writ Petitions can be disposed of by a common order as the common questions of law are involved.

Writ Petition No.429/1997 was filed by the Insurance Corporation Employees Congress, Hyderabad and also the Insurance Corporation Employees Congress of Secunderabad division seeking Writ of mandamus directing the Respondents to regularise the service of members of the petitioners union as Sub-staff in the Respondents Corporation or alternatively atleast to retain and continue them in service tilt the final adjudication of the Industrial dispute is completed by the National Industrial Tribunal and for consequential direction.

Writ Petition No.9431/1997 was filed by the Insurance Corporation Employees Congress, South Central Zone, Hyderabad seeking writ of mandamus directing the Respondents to regularise the services of the members of the petitioners association of Nellore and Visakhapatnam Divisions or in the alternatively to retain and continue them till the Award of the National Industrial Tribunal is passed.

The facts in nut-shell are that the Sub-staff were being engaged on temporary, ad hoc basis for the last several years and they were not being regularised in service and they were continued to be treated as purely temporarily and on ad-hoc basis. The employees have been agitating for the regularisation of the services. Finally, the matter was referred by the Government of India to the National Industrial Tribunal presided over by Justice Tulpule to the following effect :

"What should be the wages and other conditions of service of Badli, Temporary and Part-time workmen of the Life Insurance Corporation of India as well as the conditions of their absorption into regular cadre."

While the adjudication proceedings were pending, a complaint under 33A was filed on behalf of the Unions that regular recruitment was taking place and if such a recruitment takes place, the benefit under the Award would be only illusory and they sought for restraint order. The Tribunal passed an Award directing that during the pendency of the proceedings before the Tribunal, no recruitment of the staff on regular basis should be made. Finally, on 17-4-1986, the Award was passed and the Award was challenged by the Corporation in W.P.No.1801/1986, before the Bombay High Court and the same was dismissed. But, however, the Award was referred for interpretation to the National Tribunal presided over by Mr. Justice Jamadar and the Award was passed on 26-8-1988. Aggrieved byboth Justice Tulpule '' Award and Justice Jamadar Award, SLP was filed before the Supreme Court by the Corporation in SLP No.14906/1988. During the pendency of the proceedings before the Supreme Court, it was represented by the parties that amicable settlement was taking place and a compromise was likely to be arrived. On 21-l-1989 an application was filed to dispose of the SLP in terms of the compromise. In March, 1989, the Supreme Court allowed the parties to implement the terms of compromise as an interim measure. Subsequent to the interim order of the Supreme Court dated 1-3-1989 some more Writ Petitions came to be filed before various High Courts including Madras High Court and finally the Central Government referred the following matter for adjudication to the Central Industrial Tribunal, New Delhi. The reference is as follows :

"Whether the action of the management of Life Insurance Corporation of India in not absorbing the Badli/Temporary and Part-time workmen employed in the establishment of Life Insurance Corporation after 20-5-85 is justified ? If not, to what relief the workmen are entitled ?"

The said reference is still pending.

It is the grievance of the petitioners that the cases of the employees who were continued in sendee for more than seven years were not being regularised in service and (hat without regularising their services, fresh recruitment is taking place and the said action of the Corporation is illegal and contrary to the decision of the Supreme Court in E. Prabhavathy v. Life Insurance Corporation of India, S.L.P(C) Nos.10393/92 to 10413/92, dated 14-12-1995. On the other hand, a detailed counter was filed by the Corporation. Corporation did not dispute the Award of Justice Tulpule and Justice Jamadar Award and that the reference made by the Government on 4-3-1991 is still pending adjudication before the Central Government Industrial Tribunal, it is stated that the benefits of the Award was given to all the candidates in Class III and IV posts in Life Insurance Corporation who were engaged as Badli/ Temporary employees etc. from 1-1-1982 to 20-5-1985. But, however, in respect of the candidates who were appointed on adhoc/ temporary basis subsequent to 20-5-85 the Supreme Court by an order dated 20-10-1992 directed the Corporation to take appropriate action in pursuance of the scheme framed by it. It is to be noted that the scheme was approved by the Supreme Court and with regard to the persons who were appointed subsequent to 23-10-1992 the conditions of temporary/badli employees is governed by regulations framed by the Corporation, known as Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993.

It is stated by the learned Counsel appearing for the Corporation that the petitioners were appointed on temporary basis in 1990 and thereafter the regular recruitment though announced in 1991 could not go through final process in view of fresh instructions issued in 1993. Under those circumstances all the temporary staff employed were necessarily continued in service. However, they are not entitled for the regularisalion of the services except in accordance with the directions issued by the Supreme Court and in accordance with the approved Scheme. Para 35 a to 35.d and 36 and 37 of the counter are relevant in this regard, which are extracted below :

"35(a) With reference to the averments in Para 10 of the affidavit, I submit that it is true that the Corporation issued an Employment Notice dated 1st October, 1991 inviting applications for recruitment to the post of Sub-staff in the Hyderabad and Secunderabad Divisional Offices and the Zonal Office at Hyderabad. The anticipated vacancies notified were 200 including the vacancies of 42 reserved for SC and ST categories. I submit that in response to the Employment Notice dated 1st October, 1991, the Corporation received about 54,500 applications. I submit that as per the 1979 Recruitment Instructions read with the circulars issued thereunder, the Corporation had the power to restrict the zone of consideration or to short-list the number of candidates to be called for the pre-recruitment written test in the ratio of 1:10, that is to say to allow 10 candidates for the test against one vacancy. In other words, about 2000 candidates out of the 54,500 applications received would have been called for the written test under the general category.

(b) I submit that at about that lime i.e. during the period when the 54,500 applications were being scrutinised, the Corporation, with a view to provide better job opportunities to the aspirants to the posts of Class III and Class IV staff, considered revision of the 1979 Recruitment Instructions, which resulted in the issue of "L.I.C. Recruitment (of Class III and Class IV Staff) Instructions, 1993" in supersession of 1979 Recruitment Instructions, hereinafter referred to as "1993 Recruitment Instructions." The 1993 Recruitment instructions came into force with effect from 25th February, 1993.

I submit that the changes brought about in the Recruitment procedure under the 1993 Recruitment Instructions are in a large measure beneficial to the job aspirants and open up belter opportunities. To mention only a few of the changes:- (I) Under the new procedure all the eligible candidates will be called for the pre-recruitment written test and the restriction that only candidates equal to 10 times the number of vacancies will be allowed to the test has been done away with; (ii) under the earlier Instructions, the ranking list prepared would remain,,valid only for year and this could be extended under special circumstances for one more year whilst under the new 1993 Instructions, only a panel of candidates with no validity period is prepared and all those selected candidates will ultimately be absorbed in the regular service in the following years; (iii) Under the earlier instructions, the marks allotted for test and interview were: Test-50 marks, Interview-50 marks (maximum). Under the revised instructions, Test-100 marks (maximum) and 20 marks for interview. Thus, weightage for interview was substantially reduced; (iv) the upper age-limit of 25 years has been increased to 28 years; (v) under the earlier rules, a ranking list to the extent of vacancies and a contingency list to the extent of 50% of the number of vacancies were required to be prepared, whereas, under the new rules only a panel of selected candidates will be prepared, the number of candidates to be empanelled will be equal to twice the number of vacancies in the year.

(c) I submit when so many changes in the recruitment procedure, especially changes advantageous and beneficial to candidates were under contemplation it would be inappropriate if not inequitable to proceed with the recruitment under the Employment Notice dated 1st October, 1991 under the 1979 Recruitment Instructions, so far as the candidates as a whole are considered. I submit that there is nothing wTong in halting the recruitment or waiting for the new recruitment procedure which is more advantageous to applicants for posts.

(d) I submit that because of the time involved in the study of the implications of the new instructions and other administrative problems, some more delay occurred. In addition to this, the question of reservations for Other Backward Classes (OBC Category) had also cropped up.

With reference to the allegations in Paras 11, I crave leave to refer to my submissions hereinabove and deny the allegations in this paragraph which are contrary to or inconsistent with what is stated in the above paragraphs of my affidavit.

The allegations in Para 12 to 14 are denied. With specific reference to the petitioner''s contention that the workmen before the CGIT are entitled to the same benefit as was given to the workmen under the Tulpule and Jamadar Awards, I submit that in the light of the order of the Supreme Court dated October 23, 1992 the workmen are not entitled to any such benefit."

Thus, the Corporation states that it is open for the employees to appear for the recruitment lest. If they are found eligible in accordance with the scheme framed by it and if they are successful their cases will be considered for regular recruitment. But, the question of regularisation of their services would not arise. More over, the learned Counsel for the petitioner now submits that the matter relating to the regularisation of sendees of the employees who were appointed on or after 20-5-1985 is still sub-judice before the Central Industrial Tribunal and therefore the employees can seek the benefit of Award, but they cannot interdict the recruitment process already initiated by the Corporation. The learned Counsel for the petitioners submits that the very recruitment itself is contrary to the directions of the Supreme Court and that the employees are denied the regularisation and other benefits which were given under this scheme which is being seriously disputed by the learned Counsel for the petitioner. On the other hand, the learned Standing Counsel for the Corporation submits that all the persons who were eligible to participate in the recruitment were allowed to take part and necessary benefits in pursuance of the scheme framed by the Corporation were also extended to them and there was no objection at any point of time particularly from individual members. In 1996 regular recruitment took place and the selections have already been finalised and they are also appointed in various posts. But, however, since this Court granted status-quo with regard to the employees covered by the Writ Petitions they are also being continued subject to result in the Writ Petitions. However, he submits that the employees cannot be continued as they were not selected under proper recruitment selection process and those candidates who were selected by the Selection Board are offered regular appointment. The learned Counsel for the petitioners submits that since the petitioners are continued in service for more than 7 years they are entitled for regularisation in pursuance of the directions granted by the Supreme Court in catena of decisions. He relied on the following decisions :

Surya Narain Yadav and Others Vs. Bihar State Electricity Board and Others, , Dr. A.K. Jain v. Union of India, 1987 Supp. SCC 497, Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, , Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, , Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka and Others, , State of Haryana v. Piara Singh, 1992 (4) SLR 770, Daily Rated Casual Labour Employed under P and T Department Vs. Union of India (UOI) and Others, , The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., .

On the other hand, the learned Standing Counsel for the Corporation relied on the following decisions to the effect that the petitioners are not entitled for regularisation.

State of Haryana and others Vs. Piara Singh and others etc. etc., , J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., , Dr. Arundhathi v. State of Maharashtra, AIR 1995 SC 1365, Hindustan Shipyard v. Dr. P, Sambasiva Ran, 1996 (1) Scale 639, Dr. Surinder Singh Jamwal and another Vs. State of Jammu and Kashmir and others, , Union of India (UOI) and Others Vs. Harish Balkrishna Mahajan, , State of Orissa v. Diptimala Patra, 1995 Supp. IV SCC 49, Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain and Others, , The Senior Divisional Manager, Life Insurance Corporation of India and Another Vs. Koram Atchuta Ramaiah, .

I need not go into all the decisions in the present Writ Petitions for the reasons set out hereinafter.

The Award of Justice Tulpule Tribunal relating to the claim of absorption and the fixation of wages and other terms and conditions of temporary/badli and part-time workmen had given the benefit to those workmen, who had worked in any of the capacities referred to above during the period 1-1-1982 to 20-5-1985 and they will be considered as eligible for absorption in terms of the Award. Justice Jamadar Tribunal to which Justice Tulpule Tribunal Award was referred for interpretation u/s 36A of the Industrial Disputes Act passed in Award on 26-8-1988 interpreting the Award. But, however, he did not alter the dates mentioned in Justice Tulpule Award namely 1-1-1982 and 20-5-1985. Thus, there are three categories of employees claiming the regularisation. Firstly employees engaged during the period from 1-1-1982 to 20-5-1985, (2) From 21-5-1985 to 23-12-1992, (3) employees appointed subsequent thereto. As far as the 1st category is concerned, the Award of Tulpule and confirmed by Jamadar Award became final. When the challenge to these two awards made before the Supreme Court on the directions of the Supreme Court to carve out the scheme, the Life Insurance Corporation with the participation of the Employees Union produced the scheme which was approved by the Supreme Court. Clause (a) to (d) is reproduced below :

"(a) All those temporary employees who have worked for 85 days in any two consecutive calendar years with the Life Insurance Corporation between 20th May, 1985 uptill date and who conformed to the required eligibility criteria for regular recruitment on the dates of their initial temporary appointment will be permitted to compete for the next regular recruitment to be made by the Life Insurance Corporation after the regular . recruitment, for these posts currently scheduled for November, 1992.

(b) These candidates will be considered on their merits with all other candidates who may apply for such appointments, including those from the open market .

(c) These candidates will be given an age relaxation for applying for regular recruitment provided that they were eligible on the date of their first temporary appointment for securing regular appointment with the Life Insurance Corporation.

(d) If these candidates are otherwise eligible, they can apply for regular recruitment in the normal course."

In order to streamline the employment of casual employees, Part-time employees etc. the Corporation in terms of sub-regulation I of Regulation 8 of Life Insurance Corporation of India Staff Regulation, 1960 issued the instructions called Life Insurance Corporation of India (Temporary/Badli Employees) Instructions, 1993 and the appointment to those posts shall be made only in accordance with the Recruitment Instructions, 1993. The procedure for employment is contained in Clause V which reads :

"V. Procedure for employment :

The procedure for employment of temporary staff in Class III and Class IV posts is as follows :

Employment in class III posts :

(a) The Recruitment Instructions provides the preparation of a panel of candidates for appointment on a regular basis. After offering regular appointments to such candidates in their order of ranking to the extent vacancies are available the remaining candidates in the panel may be offered appointment on atemporary basis as and when circumstances arise under Para IV(1)(b) above. While ordinarily temporary appointments are to be offered by the Divisional Office to candidates in the panel in their order of ranking, where the vacancy arises in an office at a place which cannot be filled up by a candidate in accordance with his ranking and a candidate next available for regular appointment in the order of ranking is not willing to accept the temporary employment, the order of ranking may be departed from. In such an event, the procedure specified in the following paragraph may be followed.

(b) In the event of such an arrangement as mentioned in sub-para (a) of Para V(l) is not possible, after recording the reasons for the departure from the procedure mentioned in the said paragraph, the Sr. Divisional Manager may authorise in writing the Sr. Branch Manager to employ temporary staff from among the persons who satisfy all the eligibility conditions for recruitment of Class III staff under the Recruitment Instructions through the local Employment Exchange.''''

For temporary employees so appointed in pursuance of the Recruitment Instructions, 1993 a provision was also made that they can apply along with the other eligible candidates for recruitment on regular basis and as and when recruitment takes place provided they satisfied the eligibility conditions. The relaxation of age was also allowed in respect of those candidates who had worked for a minimum of 85 days or more in a financial year. As already stated in the preceding paragraphs, the Life Insurance Corporation issued notification in October, 1991 inviting the applications for regular recruitment Sub-staff to the posts of Sub-staff in Hyderabad and Secunderabad Divisional Offices and zonal Offices at Hyderabad. But, in view of the change brought about in the recruitment procedure under 1993 Recruitment Instructions, the final process could not be done in respect of the employment notice issued on 1-10-1991. Further, the question of reservation for O.B.C. was also cropped up and the interest of the O.B.C. was also required to be protected. After considering these issues, the Life Insurance Corporation issued a fresh notification in 1996 and recruitment process was initiated and accordingly test was held on 29-12-1996. The learned Standing Counsel for Life Insurance Corporation submits that in view of the status-quo order granted both the persons who were selected under the notification and those persons who are continuing as temporary/badli are continuing and therefore the temporary staff should give way to the regularly selected candidates. I do not find any illegality or inconsistency in the stand taken by the Corporation. It may be true that the candidates are continuing as temporary/badli or adhoc etc. right from 1990 or 1991. But, their cases cannot be said to be un-protected. By virtue of the scheme introduced by the Life Insurance Corporation and also the Recruitment Instructions of 1993, the recruitment to various posts have to be proceeded with under the scheme and also the instructions. The temporary'' staff who were appointed to tide over the contingencies in respect of the vacancies which arose in the sub-staff cadre, was filled-up on ad-hoc/ temporary basis without resorting to regular recruitment process. I am also not in agreement with the submission of the learned Counsel for the petitioners that since the employees have been working for nearly 6 to 7 years continuously, it shall be deemed that they are working on regular posts and they need not be subjected to any test and interview. As already observed the Life Insurance Corporation had to appoint various persons to fill up certain posts in sub-staff category as they were very much essential but they cannot claim exemption from the recruitment process. Therefore, necessarily they have to be subjected to the normal selection process contained in the Rules. In view of this, I do not find any merits in the contention of the learned Counsel for the petitioners. They also cannot seek any absorption on the ground that they have been continuing from 1990 in the Corporation. However, the matter is already pending before the Central Government Industrial Tribunal and any Award that may be passed by the Central Industrial Tribunal will be binding on both the management of Life Insurance Corporation and the Employees Unions. Therefore, as far as the present recruitment is concerned, the persons who were continuing under temporary/badli cadre etc. have no right to continue. Accordingly, they are required to be disengaged from service.

Under these circumstances, 1 find no merits in the Writ Petitions. However, as fairly submitted by the learned Standing Counsel for the Life Insurance Corporation, the cases of the persons who were engaged after 20-5-1985 and who could not get selected in the regular recruitment rules, will be considered for absorption/regularisation in pursuance of the Award that may be passed by the Central Industrial Tribunal and the relief/benefits lhat may be granted in the Award will be made available to the persons covered by the Award. The adjudication is in progress and the Award has not been published. But to contend that until the Award is passed the Court may direct the Life Insurance Corporation to continue them in service would be nothing but placing premium of the L.I.C. Thus in my considered opinion it will not be appropriate to grant any direction for their continuance, more especially when the selected candidates are already given the appointment order and they are working as on date.

Subject to the aforesaid observations, the Writ Petitions are dismissed. No costs.