The Chairman, Life Insurance Corporation of India and Others vs Jagadevi and Others

G. Narendra, J.—The appellants in these appeals impugn the order of the learned single Judge rendered in W.P. Nos. 80695-707/2009 and 80721-740/2009 [S-REG]. The respondents are represented by their learned counsel.

We have heard learned counsel for the appellants and the respondents.

The undisputed facts of the case are as follows:

"The respondents herein are the original petitioners and they are all appointed to the posts of Assistants/Typists in the establishment of Life Insurance Corporation i.e., the appellants herein, during the period 1995-98. It is admitted that they possessed the requisite qualification for being appointed to the posts of Assistants/Typists which was only a pass in PUC. But, some of the respondents/petitioners are graduates and post-graduates and hence there is no dispute regarding their qualification to be appointed to the posts of Assistants/Typists."

Nextly, the process of appointment is stated to be on the request made by the 1st appellant to the Employment Exchange Board, which in turn had forwarded the names of 10 candidates as against each of the notified posts. It is submitted by the respondents that after scrutiny of the candidates, the LIC short listed 5 names out of 10 that had been forwarded. Thereafter, the said 5 candidates were interviewed and out of the said 5 candidates, those who were found suitable have been selected and appointed to the said posts. Thus, the issue is as to whether in view of the above process adopted by the LIC, can it be safely presumed that none of the respondents have occupied the posts as back door entrants? The eligibility criteria has been fixed, multiple candidates have been scrutinized and thereafter, some of them have been discarded and the remaining have been interviewed and few among the remaining have been selected and appointed to the post. Thus, it is admitted that the consideration for appointment was the merit possessed by the candidates. Hence, the selection of the respondents is on merit based system. After selection, the candidates have been issued an appointment order on 01.09.1995 and on various other dates. The appointment orders are produced as ANNEXURE-"B" series.

It is undisputed that the respondents have worked continuously from their respective date of appointment, without any break nor have they been visited with any disciplinary action or is there any allegation of inefficiency, malpractice, etc. Thus it is undisputed that the candidates have been in continuous employment of the 1st appellant in excess of a decade and in some cases, a decade and a half. It is clear from the above discussion that the respondents are all qualified persons, who had duly registered with the respective Employment Exchange Board and have been recommended for employment by the Employment Exchange authorities and thereafter they have undergone a reasonable process of selection and interview and thereafter, they have been validly appointed against permanent posts. Though the appointment order terms them as temporary Assistants/Typists, they have discharged their duties in the permanent posts for a period in excess of 10 years and above. Based on these facts, they have approached the writ court with a prayer to direct the respondents herein to regularize their services.

It is submitted that the petitioners/respondents were constrained to approach this Court as their employer had commenced the process for recruitment of candidates to the posts, which were already occupied by them. It is a fact that the petitioners/respondents were also asked to partake in the selection process.

In the above facts and circumstances, the learned single Judge after a detailed hearing and by considered order, has been pleased to accept the petitioners contentions and consequently, pleased to dispose off their writ petitions with a direction to the respondents therein to consider the case of the petitioners for regularization in the event they are found suitable. The learned single Judge has further directed the appellants herein to undertake the exercise of meaningful consideration in the light of the discussion made in the impugned order. Aggrieved by the same, the appellants are before this Court.

The primary contention on behalf of the appellants is that the impugned order is contrary to the Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993 [hereinafter referred to as "the LIC Staff Instructions" for short] and that any regularization of temporary employees would be in direct violation of the said LIC Staff Instructions and Life Insurance Corporation of India (Staff) Regulations, 1966 [hereinafter referred to as "the LIC Staff Regulations" for short], which has been framed with the previous approval of the Central Government.

Learned counsel for the appellants would draw the attention of this Court to Regulation 8(1) of the LIC Staff Regulations, which empowers the Managing Director, Executive Director [Personnel] or Zonal Manager or a Divisional Manager, to employ staff in Class III and Class IV on a temporary basis, subject to such general or special directions as may be issued by the 1st appellant from time to time. The said power is conferred on the above said persons by virtue of the provisions of Regulation 8(1) of the LIC Staff Regulations. He would further draw the attention of the Court to the provisions of Regulation 8(2) of the said Regulations, which reads as follows:

"No person appointed under sub-regulation (1) shall only by reason of such appointment be entitled to absorption in the service of the Corporation or claim preference for recruitment to any post."

Thus a reading of the provision shows that no right is vested on a temporary employee to seek regularization only on the ground of his appointment under the provisions of Regulation 8(1) of the LIC Staff Regulations is the contention.

He would also submit that apart from the LIC Staff Regulations, the LIC Staff Instructions itself provides a procedure for the temporary appointees to seek regularization of their appointments i.e., by participating in the regular recruitment process. It is contended that the procedure adopted for appointment on temporary basis does not involve any written examination or any oral interview as is contemplated in the regular recruitment process and that the temporary appointment instructions envisages only securing the list of candidates from the local Employment Exchange, who meet the eligibility criteria and appoint them on a temporary basis.

It is further contended that the learned single Judge has failed to appreciate the fact that the petitioners/respondents have all been permitted to participate in the recruitment process and as a special case, the appellants had also relaxed the conditions regarding the age limit in respect of the petitioners/respondents and they having participated in the recruitment process and having failed, they are estopped from questioning the process of regularization and that they are liable for termination for having failed in the examination.

The above contentions of the appellants must fail for the following reasons:

"A reading of the appointment order clearly demonstrates that the appointment is against a sanctioned vacancy or in other words, a permanent post. A further reading of para 1 of the appointment order states that the candidate is being appointed from the period commencing from 01.09.1995. Though the date or from period is mentioned, the period or the date on which the alleged temporary employment ceases has not been mentioned. The only inference that one can draw is that the petitioners/respondents were appointed to the permanent posts on a permanent basis and this is further fortified by the contents of para 6 of the appointment order, which reads as follows:

"This appointment is being given to you purely on a temporary basis and it shall come to an end on the expiry of the period mentioned in para 1 above, or at any time prior thereto, if it becomes necessary to terminate such appointment, without assigning any cause therefore".

It states that the employment shall come to an end on the expiry of the period mentioned in para 1 above, which reads as follows:

"1(a) x x xxx

"1(b) from 1.9.95 to -/for a period of-days, from the date of your joining the service."

or

at any time prior thereto, if it becomes necessary to terminate such appointment, without assigning any cause therefor."

Thus the import of the paragraph governing the period of appointment is that the employment comes to an end on the expiry of the period mentioned in para 1 or the other mode of ending the employment is by way of termination. Admittedly, there is no date on which the period of employment expires on nor is it the case of the appellants that they have terminated the appointment and hence though the order of appointments have been described as temporary, in reality and in the surrounding facts of the case it has to be inferred that the respondents were appointed on a permanent basis. In fact, a reading of ANNEXURE-B6 would show that the said candidates have been appointed on account of a permanent vacancy and hence it can be safely inferred that the respondents have been appointed to the permanent posts. The other circumstance, which negates the contention on behalf of the appellants is that the LIC Staff Instructions are framed by them with the approval of the Central Government. Clause III of LIC Staff Instructions, which deals with various circumstances, under which the temporary appointments can be made reads as follows:

"i) pendency of the recruitment of staff on a regular basis, in accordance with the provisions of the Recruitment Instructions;

ii) against vacancies arising out of the absence on maternity leave of a regular female employee or of a regular employee on grounds of sickness for a period exceeding one month; and

iii) against ad hoc vacancies sanctioned by the Zonal Manager to cope up with work of a seasonal nature such as to handle new business or for closing of accounts or the like."

The appointment orders do not assign any of the above three as the reason for appointing the respondents on a temporary basis to the permanent posts and hence the appointment order is clearly a misnomer and it has to be construed that the employment is on a regular basis as it is made against the sanctioned posts and permanent vacancies. The instructions, under the chapter, duration of temporary employment, has clearly stipulated that the persons should not be intermittently employed against the permanent posts. It further states as follows:

"The persons employed temporarily must be specifically put on notice the circumstances under which he is being offered temporary employment i.e., pending recruitment of a regular employee to fill up the concerned vacancy, or during the absence of a regular employee on leave or otherwise, or against an ad-hoc vacancy created for the specific purpose of handling the new business inflow, closing of accounts, etc. In other words, the appointment letter must clearly indicate the vacancy, regular or ad-hoc, duly sanctioned against which the temporary employment is being made and the duration of temporary employment. In no case shall a person be offered temporary employment for a specific period, say 85 days, against a continuing vacancy and, after a break of a few days, be again employed temporarily for any number of occasions (as it would amount to an unfair labour practice)."

Thus, even as per the LIC Staff instructions, if the contentions of the appellants is to be accepted, then the appointment order could not have been granted for a period in excess of 85 days as against the permanent posts or a continuing vacancy. The appointment order neither discloses the period nor the reason for employing them on a temporary basis. In the absence of assigning of such reasons or period on which the employment expires, the contention otherwise on behalf of the appellants has to fail. Even as per the LIC Staff Instructions, it has been recognized that no person should be employed in excess of 120 days or on a regular basis with intermittent brakes. Thus, viewed from any angle, the contentions on behalf of the appellants is unsustainable and is liable to be rejected.

The other contention that the appellants have no vested right is per se erroneous. It is seen that though the LIC Staff Instructions do not provide for regularization of an employee, appointed on a temporary basis, it also curtails the length of the period of such an appointment. The rational and an objective being not to allow the creation of a vested right on account of extended period of service. The rights of persons, who have rendered services over extended periods or for number of years is not only being recognized, but also being upheld by the Hon''ble Apex Court and various High Courts. Undoubtedly, the respondents having put in decades of service have acquired a right to seek for regularization in consonance with the law enunciated by the Apex Court in this regard. The other contention of the appellants that the petitioners/respondents are not entitled to maintain the writ petitions in the light of the fact that they participated in the recruitment process has to be brushed aside. The writ petitions are based on the premise of completing long periods of service and unblemished past service, which is not disputed by the appellants'' counsel. It is not a case of the appellants that the respondents secured the employment by back door methods. The appellants fairly admit that the respondents underwent a reasonable and merit based selection process before being selected for appointment under various appoint orders.

In fact, the recruitment of a candidate recommended by the Employment Exchange Board has been considered by the Hon''ble Apex Court in the case of State of Haryana and others Vs. Piara Singh and others etc. etc., ; wherein the Apex Court has approved the sponsoring of candidates by the Employment Exchange process. It is also not their case that ineligible candidates have been selected and appointed to the posts. In fact, it is not in dispute that most of the respondents possessed qualification far-above the prescribed criteria. In fact, the Apex Court has observed that a person should not be kept in a temporary or ad hoc status for a long period.

The appellants counsel has placed reliance on the case of State of Haryana and others v. Piara Singh and others, wherein it is observed;

"12(e) Many appointments may have been made irregularly - as in this case - in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back door entry. A direction to regularize such appointments would only result in encouragement to such unhealthy practices."

In the case on hand, the candidates have been sponsored by the Employment Exchange and hence, the said ruling of the Apex Court in fact aids the case of the respondents. A reading of the said Judgment would demonstrate that the Apex Court has approved the request for regularization of the candidates, who have been sponsored by the Employment Exchange. Thus, we do not find any error in the considered order of the learned single Judge. One other fact which requires to be noted is that as a result of their appointment and the longevity of the appointment, the respondents are now in a precarious position. The Employment Exchange having sponsored them and the appellants having appointed them and utilized their services for such a long period and if they are now thrown to the street, it is impossible to turn the clock back. In other words, it is impossible for the respondents to secure any employment of a permanent nature at this advanced age. The appellants being one of the largest employers and virtually a State by itself is required to act as a model employer and contentiously. In view of the above discussion, we do not find any ground, which warrants interference with the order impugned herein.

Learned counsel for the petitioners/respondents has relied on several citations of the Hon''ble Apex Court and various High Courts as follows:

"1. FLR 2008 Vol No. 116, Page 1031 [LIC of India v. Allahabad High Court].

2007 SLT Vol. No. VII Page 374 [UP State v. Purnachandra Pande].

Writ Appeal No. 1997/2007 dated 04.12.2008.

AIR 1986 SC 156.

W.A No. 10221/2010, dated 16.12.2010 [Krishna Grameen Bank v. Shivamma].

W.P. No. 80694/2009, dated 08.09.2010 [Shivamma v. KGB].

W.P. No. 82952/2010 dated 22.09.2010 [Union of India v. Basavanth].

State of Karnataka and Others Vs. M.L. Kesari and Others, .

FLR 2010 Vol. 124 Supreme Court Page 700.

Secretary, State of Karnataka and Others Vs. Umadevi and Others, .

LIC 1988 NOC [Raj].

Sri. H. Venkataramana Vs. The State of Karnataka, ."

wherein it has been consistently held that no employer can be permitted to utilize the services of its employees under the guise of temporary employment for a prolonged period extending over a decade and thereafter, reject their services under the guise of regular recruitment process. The conclusion reached by us is infact fortified by the above noticed decisions.

In view of the above discussion, the appeals stand dismissed.