Allahabad High Court
Hashmuddin And Others vs Life Insurance Corporation Of India And ... on 13 January, 2011
Bench: Arun Tandon, Rajesh Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No.1 Reserved on 25th June, 2010 Delivered on 13th January, 2011 Case :- SPECIAL APPEAL DEFECTIVE No. - 599 of 2010 Petitioner :- Hashmuddin And Others Respondent :- Life Insurance Corporation Of India And Others Petitioner Counsel :- Bhoopendra Nath Singh, Devendra Pratap Singh Respondent Counsel :- C.S.C., Manish Goel IN Case :- SPECIAL APPEAL DEFECTIVE No. - 600 of 2010 Petitioner :- Suresh Kumar Chaturvedi And Others Respondent :- Life Insurance Corporation Of India And Others Petitioner Counsel :- Bhoopendra Nath Singh,Devendra Pratap Singh Respondent Counsel :- Manish Goel Hon'ble Arun Tandon,J.
Hon'ble Rajesh Chandra,J.
(Delivered by Hon'ble Arun Tandon, J.) Heard Sri B.N. Singh, learned counsel for the petitioner-appellants and Sri Manish Goel, learned counsel for the respondent-Life Insurance Corporation of India in both the appeals.
These two special appeals have been filed against the judgement and order of the Hon'ble Single Judge dated 23rd March, 2010, whereby Civil Misc. Writ Petition No. 37610 of 2008 (Suresh Chandra Chaturvedi & others versus Life Insurance Corporation of India & others), and Civil Misc. Writ Petition No. 28833 of 2008 (Manish Dwivedi & others versus Life Insurance Corporation of India & others) and Civil Misc. Writ Petition No. 29166 of 2008 (Hashumuddin & others versus Life Insurance Corporation of India & others) have been disposed of under a common judgment. The petitioners have been permitted to approach the competent authority of the Corporation by making suitable representations within time specified and the competent authority inturn has been directed to consider the same by means of a speaking order in accordance with law within the time specified.
Facts in short giving rise to these special appeals are as follows:
Petitioners-appellants before this Court were appointed as Assistants on temporary basis in Life Insurance Corporation of India at various branches in the year 1998-99. It is not in dispute that because of huge shortage of assistants due to non-recruitment for years together on regular basis, the Branch Managers requested the the Divisional Managers and Zonal Managers to permit them to make appointments of assistants on temporary basis. It is admitted on record that after calling for the names of eligible candidates from the employment exchange, a written test was held, which was followed by interview. Selected candidates like the petitioners were issued appointment letters, copy of such appointment order has been enclosed along with the writ petitions. The appointment letters contain specific stipulation to the following effect:
(a) appointment was temporary
(b) the same was to continue till regularly selected candidate joins,
(c) the candidate shall not be entitled to any regular appointment against any post or any preference being granted in his favour on the basis of such temporary appointment including the relief of absorption,
(d) if the said conditions were acceptable to the incumbent concerned, he may report for joining.
Petitioners admittedly accepted the conditions so imposed in the appointment letter and reported for joining without protest. Petitioners are stated to have continued in the employment of the Life Insurance corporation of India for years together. Petitioners vide letters dated 2nd November, 2007, dated 4th November, 2007 and dated 4th June, 2008, claimed benefits of annual increments, medical benefits, leave encashment, productivity linked lump sump incentive, Conveyance allowance, Provident Fund, LTC etc. like any other regularly appointed assistant. They also set up a claim for regularization.
Instead of considering the request of the petitioners as aforesaid, the Life Insurance Corporation of India published an advertisement inviting applications for the post of Assistants, as were available in various branches of the Life Insurance Corporation of India, which included the posts against which the petitioners claimed regularization. It is against such advertisement that the aforesaid writ petitions were filed for a mandamus commanding the respondents to regularize the petitioners on the posts of assistants from the date of initial appointment with all service benefits and further not to make any appointment on the posts without considering the petitioners' regularization in terms of the advertisement published.
The case so set up by the petitioners was contested by the Life Insurance Corporation of India.
Life Insurance Corporation of India is a body corporate constituted under Section 3 of the Life Insurance Corporation Act, 1956 (hereinafter referred to as the "Act, 1956"). Under Section 23 of the Act, 1956, the Life Insurance Corporation of India has been conferred a power to employ such number of persons as it thinks fit for the purpose of discharge of its functions. Section 48 of the Act, 1956 confers a power upon the Life Insurance Corporation of India to frame rules while Section 49 confers a power upon the Corporation to frame Regulations with the prior approval of the Central Government by notification in the Gazette of India in respect of all matters covered by the Act. Life Insurance Corporation of India has framed Life Insurance Corporation of India (Staff Regulations, 1960) (hereinafter referred to as the "Regulations, 1960"). Theses regulations regulate the mode and manner of regular appointment, promotion, termination of service of the employees to be appointed in the Life Insurance Corporation of India.
It may be recorded that a different mode for recruitment of temporary employees has been provided for under the Life Insurance Corporation of India (Employment of Temporary Staff Instructions, 1993) (hereinafter referred to as the "Instructions, 1993"). It has not been disputed that Regulations, 1960 and the Instructions, 1993 have statutory force.
According to the petitioners, they were appointed against substantive vacancies after following procedure applicable. It is claimed that the petitioners had completed nearly a decade of service on temporary basis. The action of the Life Insurance Corporation of India to treat the petitioners as temporary employees for such a long duration amounts to unfair labour practice under Section 25 T of the Industrial Disputes Act, 1947, which is made punishable under Section 25 U of the Industrial Disputes Act. It is stated that under the Instructions, 1993, paragraph-6 (Duration of Temporary Employment), temporary appointment can be made for 85 days/120 days at best for one year, where an employee has taken earned leave. According to the petitioners, the maximum period of probation is 6 months for a regular employee. In this factual background it is stated that since the petitioners have completed nearly 12 years of service, their appointment cannot be said to be temporary or ad hoc after expiry of the aforesaid period of 85 days/120 days/1 year. It has been further contended that the appointment of the petitioners cannot be treated to be a back door entry, which has been deprecated by the Hon'ble Supreme Court of India in the case of Secretary, State of Karnataka vs. Uma Devi reported in (2006) 4 SCC 1. Therefore, there is no hurdle in the regularization of the petitioners against the posts on which they have working nearly 12 years.
Learned counsel for the petitioners, with reference to the judgment of the Hon'ble Supreme Court of India in the case of Life Insurance Corporation of India & others versus Rajeev Kumar Srivastava, reported in 1994 (68) F.L.R. 610 and Life Insurance Corporation of India & others & Another vs. Kailash Nath & Others, reported in 2008 (1) ADJ 95, submits that provisions of the Industrial Disputes Act are fully applicable to the employees of the Life Insurance Corporation of India, which will include the provisions, which prohibit unfair labour practice. Reference has also been made to the judgment of the Hon'ble Supreme Court of India in the case of the Chief Conservator of Forest & Others versus Jagan Nath Maruti Kondhare & Others, reported in 1996 LIC 967.
It is pointed out that although minimum of the pay-scale applicable to regular post and dearness allowance, house rent allowance, CCA, are being provided to the petitioners, but they are not being provided annual increments, benefits of provident fund, conveyance allowance, medical leave, time bound promotion, maternity, sick leave, LTC, transport allowance etc. and others such allowances as are applicable to regular Assistants working in the Life Insurance Corporation of India.
Learned counsel for the petitioners has placed reliance upon the judgement of the Hon'ble Supreme Court of India in the case of Rajashthan Krishi Vishwavidyalaya, Bikaner vs. Devi Singh reported in (2008) 3 SCC 505, wherein after considering the judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi (Supra), the matter was remanded to the High Court for decision afresh.
On behalf of the respondent-Life Insurance Corporation of India, it has been contended that the petitioners had entered into the employment of the Life Insurance Corporation of India with open eyes, after going through the letter of appointment which specifically recorded that the appointment of the petitioners was temporary and for such duration, till regularly selected candidate joins. It was specifically provided that the petitioners will have no right to claim regularization/absorption on the basis of such appointment nor they will be entitled to institute any proceedings for the purpose. It was further specifically provided that they will have no right to claim to any other benefits in terms of the temporary appointment. Paragraph-7 of the letter of the appointment specifically mentioned that if the aforesaid conditions are acceptable to the employee concerned, he may report for joining. The petitioners joined without protest, they cannot be permitted to wriggle out of the conditions so agreed between the petitioners and Life Insurance corporation of India at the time of appointment. The conditions continue to be binding irrespective of the length of service put in by the petitioners.
Learned counsel for the respondent-Corporation submits that the distinction in the two modes of recruitment i.e. for regular appointment and temporary appointment, is writ large on record. In the case of regular appointment, selections are made on Regional/Zonal Level, pre-recruitment test+interview+medical examination are held, ranking list and empanelment list are prepared. The vacancy has to be advertised and the Staff Regulations, 1960 are applicable. So far as the temporary appointment is concerned, selections are made at Branch Level, no pre-recruitment is held, no ranking list and empanelment list are prepared nor vacancy has to be adversed nor Staff Regulations, 1960 are applicable. The vacancies against which the petitioners have been appointed, have only been filled by inviting applications from the Employment Exchange.
Learned counsel for the respondent-Corporation clarifies that in view of the admitted difference in the method of recruitment, petitioners cannot claim of any right of being treated as regular employees. Plea of permanency claimed by the petitioners on the strength of their having worked for more than 85 days/120 days/ 1 year is totally misplaced. Merely because, the maximum period prescribed under Instructions, 1993, has expired, it will not mean that the employee concerned gets the status of permanent staff/regular staff. It is clarified that there is no statutory provision, which provides for regularization of such temporary employees like the petitioners.
With regard to the plea of Unfair Labour Practice, learned counsel for the respondent-Corporation submits that no pleadings have been raised justifying for such vague and general allegations. He submits that category to which the petitioners belong (temporary employees) cannot be equated with those, who belong to regular cadre (regular employees) for various reasons including the mode of appointment. Reference in that regard has been made to the judgements of the Hon'ble Supreme Court of India in the case of Gangadhar Pillai versus Siemens Ltd. reported in (2007) 1 SCC 533. Reference is also made to the judgement of the Hon'ble Supreme Court of India in the case of M. Venugopal versus Divisional Manager, Life Insurance corporation of India, Machilipatnam, A.P. & Another reported in (1994) 2 SCC 233, wherein it has been held that the provisions of Life Insurance Coronation of India Act overrides the Industrial Disputes Act. He submits that the plea of unfair labour practice as raised by temporary employees stands answered against them by the Apex Court as per the judgment dated 21st March, 2007 passed in L.P.A. No. 678/2004 (Terminated Full Time Temporary LIC Employees Welfare Association vs. Life Insurance corporation of India & Others) and connected matters.
Learned counsel for the respondent-Corporation submits that the Hon'ble Single Judge under the judgement impugned in these special appeals has granted liberty to the petitioners to submit their representations for consideration by the Competent Authority for grant of necessary relaxation in the matter of regular appointment in pursuance to the advertisement in question. He further contends that Competent Authority has considered the case of the petitioners along with other similarly situate persons and has provided relaxation in the upper age limit to compete in the regular recruitment process and that no further relaxation is permissible.
We have considered the submissions made by the learned counsel for the parties and have examined the records of the present special appeals.
We find that all the contentions raised on behalf of the petitioners have specifically been dealt with by the learned Single judge and after referring to the case law applicable on the subject, findings have been recorded. The learned Single Judge has also taken note of the statutory provisions (in great detail) applicable in the matter of regular appointment as well as in the matter of temporary appointment with Life Insurance Corporation of India.
Rules which regulate the appointment and other conditions of service of temporary employees, i.e. Instructions,1993 provide that "no person appointed on a temporary basis shall only by reason of such appointment be entitled to absorption in the service of the Corporation nor shall claim preference for recruitment to any post". The learned Single Judge in paragraph-49 of the judgement has prepared a chart for depicting the difference in the statutory provisions, which regulate the mode and manner of recruitment on regular basis and those regulate the temporary basis. The Learned Single Judge has rightly held that merely because the petitioners have worked for more than 120 days on temporary basis, no right of permanency shall accrue. We are in respectful agreement with the reasoning recorded in the judgement of the learned Single Judge. It has rightly been held that an appointee under "Instructions, 1993" shall not qualify for absorption automatically as regular employee against regular vacancy after giving a go bye to the provisions of the statutory rules applicable. Repeating the same reasons in our judgement would only be burdening this judgement unnecessarily.
So far as the plea of unfair labour practice as canvassed on behalf of the appellant is concerned, we find that the aforesaid aspect of the matter has been examined under Issue No. G by the learned Single Judge and after taking into consideration all aspect of the matter and case law application to the subject in paragraph-103, with reference to the judgment of the Hon'ble Supreme Court of India in the case of M. Venugopal (Supra), a categorical finding has been recorded that the provisions of Industrial Dispute Act would be inapplicable, the terms and conditions of employees like the petitioners are governed by the statutory provisions made under the Life Insurance Corporation of India Act, 1956.
So far as the judgements of the Hon'ble Supreme Court of India in the case of Life Insurance Corporation of India & others versus Rajeev Kumar Srivastava, and Life Insurance Corporation of India & others & Another vs. Kailash Nath are concerned, the same do not in any way dilute the reasoning of the learned Single Judge. Suffice is to refer the judgement of the Hon'ble Supreme Court of India dated 21st March, 2007 passed in L.P.A. No. 678/2004 (Terminated Full Time Temporary LIC Employees Welfare Association vs. Life Insurance corporation of India & Others) and connected matters referred to above, wherein it has specifically been held that temporary employees, who had accepted the temporary appointment with open eyes on conditions mentioned cannot raise any claim for their regularisation or automatic absorption. After referring to the nature of temporary appointment of persons like the petitioners, the Apex Court in paragraphs-15 and 18 of the judgment has held as follows:
"15. ...................................It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.?
18. In the present cases there is a specific rule, which provides as to how recruitment has to be made to a vacancy on regular basis. The appellants herein were recruited under different set of Instructions altogether, which were meant for engagement on temporary basis. The Regulation permits recruitment of temporary staff, which also clearly mandates that no such person, who is appointed as a temporary staff, would be entitled to absorption in the service of the Corporation or claim preference for recruitment to any post. Temporary servants appointed under the Regulations have to be considered for regular appointment for which also provisions is made in the same set of Instructions called Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993. Therefore, none of the cases of the appellants would attract a direction to the respondent to absorb them automatically as a regular employee."
In view of the aforesaid, the plea of unfair labour practice canvassed cannot succeed. The learned Single Judge with regard to principle of "Equal pay for Equal Work" has rightly come to the conclusion with reference to the judgements of the Hon'ble Supreme Court of India on the subject that there can be a distinction in the matter of wages having regard to the method of appointment and the nature of the vacancy. We are in respectful agreement with the findings so recorded by the learned Single Judge. In our opinion the judgement of the learned Single Judge dated 23rd March, 2010 is a well reasoned judgment. No different view is possible in the facts of the present case, we are in respectful agreement with the judgement.
Both the appeals lack merit and are accordingly dismissed.
(Arun Tandon, J.) (Rajesh Chandra , J.) Order Date :-13.01.2011 Sushil/-