Andhra HC (Pre-Telangana)
G. Sudhakar And 98 Others vs L.I.C. Of India, Divisional Office, ... on 3 November, 1998
Equivalent citations: 1998(6)ALD527, 1998(6)ALT147
ORDER
1. The petitioners, 99 in number and roughly hundred and more others were appointed by the management of the Life Insurance Corporation of India (L.I.C.) de hors the relevant recruitment rules as members of the sub-staff against the clear existing vacancies. They have put in between 5 to 12 years of service. The petitioners have sought for a writ of mandamus directing the management of the L.I.C. to absorb all the petitioners on permanent basis and they have sought consequential relief to restrain the management of the L.I.C. from terminating the services of the petitioners.
2. In response to rule nisi, the respondents have filed counter-affidavit opposing the claim of the petitioners. In the counter, it is claimed that in view of the law declared by the Supreme Court relating to absorption/regularisation of the service of temporary/ad hoc/casual employees, the petitioners are not entitled to the relief claimed by them; the Life Insurance Corporation of India Recruitment (of Class III and Class IV Staff) Instructions, 1993 and Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993 govern the recruitment of the employees to the sub-staff of the Corporation; all the petitioners and roughly 100 and more others were appointed de hors the above rules and therefore they are not entitled to be regularised in the service on permanent basis; similar writ petitions W.P.No. 19426/96 and W.P. No. 24979/97 and W.A. No. 22 of 1998 filed before this Court were dismissed. A reply affidavit was filed by the petitioners to the counter-affidavit reiterating the same contentions taken in the main affidavit. Added to this, the petitioners have high-lighted in the reply affidavit the hardship that may be caused to them if the Court refuses to grant the relief.
3. Mr. G. Sudha, learned Counsel for the petitioners contended that having regard to the length of service put in by the petitioners, they are entitled to be regularised in the service. In support of her submission, learned Counsel for the petitioners placed reliance on the decisions of the Supreme Court in State of Haryana v. Piara Singh, , Arun Kumar Rout v. State of Bihar, , and the judgment of the Orissa High Court in Pramod Bank v. Registrar, Orissa University of Agriculture and Technology and others, 1998 Lab.I.C. 1694.
4. Clause (1) of Article 16 of the Constitution of India mandates that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under die State, and Clause (2) of that Article further mandates that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Clauses (I) and (2) of Article 16 guarantee equality of opportunity to all citizens in the matter of appointment to any office or any other employment, under the State. Article 16 is only an instance of the application of the general rule of equality laid down in Article 14 and it should be construed as such. What Article 16(1) guarantees is an equal opportunity to all citizens to apply for employment under the State. The right guaranteed by Article 16(1) includes the right to make an application for any post under the Government as held by the Supreme Court in Krishna Chander v. Central Tractor Organisation, and a right to be considered on the merits for the post for which an application has been made as held by the Supreme Court in Rama Rao v. State of Andhra Pradesh, and High Court, Calcutta v. Amal Kumar, . The guarantee in clause (1) of Article 16 is to each individual and with reference to each occasion of recruitment as held by the Supreme Court in Devadasan v. Union of India, . What Article 16(1) guarantees is an equality of opportunity and not any right to be appointed to the post to which he applies or any other post under the State. Added to this general gurantee under Article 16 of the Constitution, right to apply and right to be considered for public employment for appointment is also guaranteed in favour of the citizens belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes under the protective discrimination schemes evolved by the State.
5. There are several pronouncements of the Supreme Court governing regularisation or confirmation of the services of ad hod temporary employees. The Supreme Court in Union of India v. Bishamber Dittt, , field that appointment on regular basis after selection according to recruitment rules is a condition precedent for granting regularisation. A three-Judge Bench of the Supreme Court in the case of Ashwani Kumar and others v. State of Bihar and others, , held that if the initial entry itself is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never arise for consideration and that no regularisation can be ordered. In the said case Supreme Court in paras 13 and 14 observed thus:
"13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby."
"14. .... it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. Firstly, if on any available clear vacancies which arc of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can give their best assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recuritment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be."
6. In the case of P. Ravindran v. Union Territory of Pondicherry, (1991) 1 SCC 350, the Supreme Court held that the regularisation of the services of the ad hoc persons who had come to the service through back-door entry cannot be ordered. In the case of E. Ramakrishnan v. State of Kerala, , the refusal of the High Court of Kerala to grant the relief of regularisation to the petitioners appointed de hors the recruitment rule although officiating for a long time of 14 years is upheld by the Supreme Court. The plea of the petitioners therein to direct the employer to relax age limit was also turned down by the Supreme Court on the ground that it is not for the Court to relax age limit but for the employer.
7. What could be gathered from the above decisions of the Supreme Court is that in order to grant relief of regularisation, two conditions, called conditions-precedent should co-exist. The first condition is that the entry of the applicant for tire writ on temporary or ad hoc basis should be against an existing vacancy. The second condition is that his appointment was made after going through the selection procedure laid down by the relevant recruitment rules. In the present case, admittedly the appointments of the petitioners on daily wage basis/ad hoc basis/temporary basis were made de hors the relevant statutory recruitment rules. On that short ground, the petitioners are not entitled to the relief. However, Ms. G. Sudha, placing strong reliance on the observation of the Supreme Court in para 25 of the judgment in Slate of Haryana v. Piara Singh (supra) and the judgment of the Supreme Court in Arun Kumar Rout v. State of Bihar, (supra), would maintain that petitioners are entitled to the relief. Those two decisions of the Supreme Court are of no help to the petitioners. The relevant portion in para 25 of the judgment instate of Haryana v. Piara Singh (supra) on which initial reliance was placed reads as under:
"If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State."
In the same paragraph of the judgment, the Supreme Court stated the normal rule governing recruitment. It reads:
"The normal rule, ofcourse, is regular recruitment through the prescribed agency but exigencies of administration may some times call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employees by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/ appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc I temporary employee.'' Therefore, the passing remark made by the Supreme Court on which the learned Counsel for the petitioners placed reliance is of no help to the petitioners, particularly in view of the subsequent three-Judge Bench decision of the Supreme Court in Ashwani Kumar and others v. State of Bihar and others (supra). Further, the judgment in State of Haryana v. Piara Singh (supra) was pressed into service before the Supreme Court in E. Ramakrishnan v. State of Kerala (supra) and the Supreme Court after consideration of that judgment, refused to interfere with the order of the Kerala High Court declining to grant the relief of regularisation.
8. The judgment of the Supreme Court in Arun Kumar Rout v. State of Bihar (supra) is also not helpful to the petitioners. In the said judgment also the Supreme Court was pleased to observe thus :
"..... in the matter of getting appointment in the Government Service, the procedure required to be followed fix such appointments cannot be by-passed and if the initial appointment was illegal on account of not following the procedure for appointment, the incumbent obtaining appointment without following due procedure cannot claim as a matter of right to be regularised."
9. Having thus observed, the Supreme Court extended sympathetic consideration and issued certain direction to fill up 50% of the sanctioned posts from amongst the appellants on the basis of their inter se merit position by taking into account their academic qualifications by waiving question of age bar if any and usual procedures for such appointment. It is relevant to note that in the above case, the earlier decisions including the decision of the larger Bench in Ashwani Kumar and others v. State of Bihar and others (supra) were not brought to the notice of the Court.
10. Since the judgments of the Supreme Court referred to above govern the point, there is no need to consider the judgment of the Orissa High Court in Pramod Barik v. Registrar, Orissa University of Agriculture and Technology and others (supra) on which the learned counsel for the petitioners has placed reliance, in any detail.
11. Before parting with this case, the Court thinks it appropriate to say a few words concerning two submissions made by the learned Counsel for the parties. Ms. G. Sudha, learned Counsel for the petitioners quite passionately appealed to the Court to consider the prayer of the petitioners for grant of regularisation with sympathy and compassion and appreciating the hardship that will be caused to them if the relief is denied. Sympathy of a man, therefore of a Judge, in the very nature of things is subjective, and I am afraid, that would be a basis for the decision of the Judge though it is widely believed that a Judge cannot escape the current of the underlying philosophy of his life any more than other mortals, and that his decision may reflect philosophy of his life. But, appeal to the Court's sympathy and compassion should not create a shadow or act as a obscurant in seeing legal justification to grant a relief to a litigant. The relief that a Judge grants should be grounded on legal justification and not on the benevolence of the Judge. Alternatively, it may be stated that if the Court has to decide on the grievance with a touch of sympathy and compassion, such sympathy or compassion should lean towards the deprived and wronged persons and not towards the wrong-doers or the beneficiaries of the breach of public law. Admittedly, the petitioners made back-door entry into the service of the Corporation de hors the recruitment procedure thereby violating the Fundamental Right guaranteed to the others similarly circumstanced under Articles Hand I6of the Constitution to apply and to be considered for appointment in the Corporation. Life Insurance Corporation of India is considered to be one of the few premier institutions in the country where "living wage" is paid to the employees, and other terms and conditions of service are also said to be quite attractive. Vacancies in the Corporation should be thrown open to all the eligible unemployed youth in the employment market to respect the mandate of Articles 14 and 16, and the Corporation should be prohibited from offering employment only to those who have nexus with or access to the top brass in the administration of the Corporation.
12. The Court has referred to the stand taken by the Corporation in the counter-affidavit above, and the Corporation has opposed to the grant of relief to the petitioners.
That is in "white". When the case was posted before the Court for hearing on 24-9-1998, the learned Standing Counsel for the Corporation, at the threshold, putforth a proposal that the writ petition be disposed of directing the Corporation to regularise the services of the petitioners and the similarly circumstanced employees provided they possess the prescribed eligibilities for appointment to the posts in which they are presently serving. The Court heard this oral proposal with circumspection, and it did not take much time to the Court to understand the game-plan behind the oral proposal, and the Court told the learned Standing Counsel for the Corporation that what is brought before the Court is not a lis between the private parties, and that the Court could not dispose of the writ petition in terms of the proposal without application of mind, and that the case involves public law issue and the proposal had to be considered in the premise of relevant Constitutional provisions as well as the binding decisions of the Apex Court on the point. That is why the case was adjourned on 24-9-1998. hi the course of the resumed hearing also, the Court could see, from the submissions of the learned Standing Counsel for the Corporation, ready willingness of the Corporation to grant relief of regularisation to the petitioners if the Court were to put stamp of authority to the oral proposal. The oral proposal, nay, suggestion, is unaccountable or may I say that it is an attempt of the Corporation to make the Court accountable for an illegal act? If the suggested course of action is legally permissible, the Corporation itself at its level would have granted the relief to the petitioners. The Courts are not advisors to anybody, and they only decide the lis brought before them, in accordance with law. The Corporation know pretty well that what they did in employing the petitioners and hundred and more others de hors the recruitment procedure is a "black tiling" and constitutionally impermissible. The petitioners and similarly circumstanced hundred and more others are the "favoured lot" of the Corporation because they made entry into the service of the Corporation because of their nexus with and access to the concerned Executive in the administrative echelon of the Corporation, and therefore understandably they are eager and willing to help the petitioners after securing stamp of authority of the Court. The attempt should be thwarted and the Court should be obstructive to the game-plan of the Corporation. In the field of public law review, the Court cannot dispose of a Us in terms of a compromise or a proposal, written or oral, without examining whether if the Court were to act on the basis of such compromise or proposal and pass order, it would be in consonance with the public law requirement or it would violate the public law. If the proposal made by the parties can be worked out without violating constitutional or statutory limitations, the Court may dispose of the case in terms of the compromise, scheme or proposal etc., and not otherwise. In this case, if the Court were to dispose of the writ petition in terms of the unaccountable oral proposal made by the learned Standing Counsel, it would definitely violate not only the citizens' right guaranteed under Articles 14 and 16 of the Constitution but also violate the binding decisions of the Apex Court referred to above. The Corporation cannot be permitted to convert 'black act' into a 'white deed" by according the approval of the Court to the proposal, particularly when the Corporation has raised strong opposition to the claim of the petitioners in the "white counter affidavit"
13. In the result, the writ petition is dismissed with no order as to costs.