Kerala High Court
Navaneeth P vs Life Insurance Corporation Of India on 31 May, 2011
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
THURSDAY, THE 16TH DAY OF FEBRUARY 2012/27TH MAGHA 1933
WP(C).No. 17982 of 2011 (W)
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PETITIONER(S) :
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NAVANEETH P.,
S/O.BABU RAJ,
PANNIDAPURAYIL HOUSE,
PEYAMBRA P.O.
KUNNAMANGALAM VIA.,
KOZHIKODE- 673 571.
BY ADV. SRI.C.E.UNNIKRISHNAN
RESPONDENT(S) :
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1. LIFE INSURANCE CORPORATION OF INDIA,
CENTRAL OFFICE, YOGAKSHEMA,
JEEVAN BHEEMA MARG,
MUMBAI-400 021, REP. BY ITS CHAIRMAN.
2. THE ZONAL MANAGER,
LIC OF INDIA,
ZONAL OFFICE,
CHENNAI- 600 001.
3. THE SENIOR DIVISIONAL MANAGER,
LIC OF INDIA, DIVISIONAL OFFICE,
KOZHIKODE- 673 001.
4. MANAGER,
LIFE INSURANCE CORPORATION OF INDIA,
BRANCH-III, KOZHIKODE.
BY ADV. SRI.S.EASWARAN, S.C.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-02-2012
ALONG WITH W.P.C. NO. 17964/2011 & W.P.C. NO.17984/2011, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
NS
WP(C).No. 17982 of 2011
APPENDIX
PETITIONER(S) EXHIBITS :
EXT.P1 : COPY OF THE CERTIFICATE DATED 31.05.2011.
EXT.P2 : COPY OF THE JUDGMENT IN CIVIL APPEAL S 953-968 DATED 18.01.2001.
EXT.P3 : COPY OF THE GUIDELINES DATED 20.05.2001.
EXT.P4 : COPY OF THE APPLICATION DATED 02.06.2011.
EXT.P5 : COPY OF THE CERTIFICATE DATED 03.06.2011.
EXT.P6 : COPY OF THE LIST PUBLISHED DATED 22.06.2011.
EXT.P7 : COPY OF THE REPRESENTATION DATED 23.06.2011.
EXT.P8 : COPY OF THE SUPPLIMENTARY LIST PUBLISHED DATED 25.06.2011.
RESPONDENT(S) EXHIBITS :
EXT. R3(A) : EXTRACT OF THE BUDGET CONTROL REGISTER.
EXT.R3(B) : RECEIPT DATED 26.11.2005 ISSUED TO THE PETITINOER.
EXT.R3(C) : RECEIPT DATED 20.12.2005 ISSUED TO THE PETITIONER.
/ TRUE COPY /
NS P.A. TO JUDGE
K.SURENDRA MOHAN, J.
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W.P(C). Nos.17964, 17982
& 17984 OF 2011
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Dated this the 16th day of February, 2012
JUDGMENT
The petitioners in all these writ petitions are persons who have been working under the respondents on temporary basis. They claim that they are entitled to be considered for the purpose of regularistion in service. The first respondent is conducting a selection process for the regularisation of its temporary employees pursuant to directions issued by the Hon'ble Supreme Court. However, the petitioners have not been permitted to appear for the written test and to participate in the selection process. Therefore, they have challenged the action of the respondents by filing these three separate writ petitions. Since the contentions raised as well the issues involved are identical, they are all considered together by this common judgment.
2. The petitioner in W.P.(C) No. 17964/2011 is working WPC Nos. 17982/2011 & others 2 as a lift operator in the office of the third respondent on temporary basis. He first joined service on 3/8/1982 and worked till 8/9/1982 as evidenced by Ext.P1. According to the petitioner, the Life Insurance Corporation of India, the first respondent herein, has been employing such persons on temporary basis since 1996 and there are more than 5000 such employees in the service of the first respondent. As per the directions of the Hon'ble Supreme Court in Civil Appeal Nos. 953 to 968 /2005 issued pursuant to an affidavit filed on behalf of the first respondent undertaking to conduct a process of selection comprising of a written examination and interview for regularising the temporary employees, the process of selection is in progress. The judgment of the Supreme Court is Ext.P2. Pursuant to Ext.P2, Ext. P3 guidelines have been issued by the first respondent. Though the petitioner had submitted Ext.P4 application, his name has not been included in the list of candidates who are permitted to take the written examination. As per the guidelines, all temporary class IV employees working in the first respondent Corporation for more than five years as on 18/01/2011, the date of Ext.P2 judgment, and who possess WPC Nos. 17982/2011 & others 3 the minimum prescribed qualification and age are eligible to apply. Though the petitioner is possessed of all the necessary eligibility criteria, he complains that his name has not been included in the list published on 22/6/2011. Therefore, he has filed this writ petition challenging the action of the respondents. According to the learned counsel for the respondents, the petitioner's date of first engagement cannot be taken as 3/8/1982 for the reason that his continuous engagement was only upto 8/9/1982. Thereafter, he has been engaged only from 17/1/2005, after a gap of 23 years. The engagement for a short spell of 34 days cannot confer on the petitioner the mandatory eligibility criterion of five years continuous service stipulated by Ext.P3. Therefore, his date of entry into service can only be taken as 17/1/2005 from which date he has continued in service. When his age is calculated as on the crucial date, he is 44 years old and is therefore, over aged for being considered for appointment to any post in the service of the first respondent. It is for the above reason that his name has not been included in the list of eligible candidates for the written test.
WPC Nos. 17982/2011 & others 4
3. The petitioner in W.P.(C) No.17982/2011 was first engaged by the first respondent on 11/1/2006 and as on 3/6/2011 he has a total service of five years and seven days, as evident from Ext.P1. However, his name also has not been included in the list of employees eligible to appear for the written examination. According to the counsel for the respondents, the petitioner's date of first engagement was 25/4/2005 and if the said date is taken into account, it could be seen that the petitioner had not completed the age of 18 years as on the said date. Since completion of 18 years of age is an eligibility criterion for being considered for appointment to the service of the first respondent,he has not been included in the list of candidates who are eligible to appear for the written test.
4. The petitioner in W.P.(C) No.17984/2011 claims to have been working from December 1999. He relies on Ext.P5 to support his contentions. Ext.P5 is a certificate issued by the Branch Manager. According to Ext.P5, one voucher pertaining to 3/9/2003 and payments made on 4/4/2005 and 18/4/2005 are available and therefore it has been requested that his application may be considered. However, his name also does WPC Nos. 17982/2011 & others 5 not find a place in the list of candidates who have been permitted to appear for the written examination. According to the counter affidavit filed on behalf of the respondents, the records available at the office of the 4th respondent do not support the claim of the petitioner. Since Ext.P5 is issued on the basis of certain statements made by the petitioner himself, the same was considered to be insufficient to determine the date of first entry of the petitioner into service. Except some statements, that appear to have been made by some of the fellow employees , no records are available in the office of the 4th respondent to support his claim. Since records are available only from 3/9/2003 onwards, his claim for regularisation was considered with reference to the said date. As on the said date the petitioner's age was found to be 32 years. His application was rejected for the reason that the upper age limit fixed for entry into service of the first respondent is 30 years. Therefore, it is contended that the rejection of the petitioner's application is perfectly justified.
5. According to Sri.C.E.Unnikrishnan learned counsel for the petitioners in all the three writ petitions, the three WPC Nos. 17982/2011 & others 6 petitioners are all persons who ought to have been permitted to appear for the written examination. The selection contemplated is to Class IV posts and the educational qualification stipulated is only minimal. The written test as well as the interview contemplated are also not of any high academic standards. Considering the nature of the duties, that the petitioners are expected to discharge on regularisation, it is contended that the exclusion of the petitioners was absolutely unjustified. Further since there are number of vacancies available, totalling about 5,000, even if the petitioners are also granted an opportunity to participate in the selection, that would not cause any prejudice to anyone. For the above reason, the counsel for the petitioners contends that the petitioners may also be permitted to appear for the interview.
6. Sri.S.Easwaran, who appears for the respondents, on the other hand, refutes the contentions of the learned counsel for the petitioners by pointing out that the respondents have no particular interest in excluding any person or permitting any other person to compete in the process of selection. Since the guidelines prescribe certain criteria for eligibility, the WPC Nos. 17982/2011 & others 7 respondents have only given effect to such stipulations while screening the applications received. The applications submitted by the petitioners have been excluded for justifiable reasons.
7. In the case of the petitioner in W.P.(C) No. 17964/2011, it is contended that since a period of five years' continuous engagement is stipulated, the date of his entry into service has to be taken as the date from which the period of his continuous service commenced. Therefore, short periods of engagement at a prior point of time cannot be reckoned for determining the eligibility of the said person. If such a process is adopted, in the case of the petitioner herein different dates would have to be taken into account for the purpose of determining his first entry into service and for computing his continuous service. Thus, the date 3/8/1982 would have to be taken into account for the purpose of determining his date of entry in service while, for computing his continuous period of engagement of five years, a different date, 17/1/2005 would have to be reckoned. It is also contended that the engagement of the petitioner for a short spell of 35 days 23 years before his date of continuous engagement cannot be reckoned as his date WPC Nos. 17982/2011 & others 8 of first entry into service.
8. With regard to the claim of the petitioner in W.P.(C) No.17982/2011 it is contended that if his first date of entry is taken as 25/4/2005 and his age is reckoned on the basis of the said date, he has not completed 18 years of age and is underaged on the crucial date. According to the learned counsel for the respondents, in the case of this petitioner his first entry into service was on 25/4/2005 and therefore only said date is liable to be reckoned.
9. I have heard the learned counsel for the contesting parties. I have also considered the rival contentions anxiously.
10. In the case of the petitioner in W.P.(C) No.17984/2011 though his first date of engagement is stated to be some time in December 1999, there are no records available to support the said claim. Though the learned counsel for the petitioner has placed reliance on Ext.P9 to contend that a number of records of the 4th respondent Branch have been destroyed in accordance with the rules regulating destruction of the old records, the same cannot be taken as the reason for non availability of records in support of his claim. It is true that Ext.P9 evidences WPC Nos. 17982/2011 & others 9 destruction of a number of old records. But, merely for the reason that old records have been destroyed it cannot be presumed that the petitioner would have been in service from the year 1999 onwards. It is pertinent to note that even the petitioner is not sure of the exact date on which he has entered the service of the respondent. In the absence of records, it cannot be said that the petitioner had actually commenced his service under the respondent in the year 1999 as contended. Since there is no proof to support the claim of the petitioner, it cannot be said that the stand of the respondents with regard to the petitioner in W.P.(C) No.17984/2011 is unjustified. For the above reason, I do not find any ground to entertain the claim of the petitioner in the said writ petition.
11. With respect to the claim of the petitioner in W.P.(C) NO.17964/2011, it is worth noticing that though the petitioner has worked for the period from 3/8/1982 to 8/9/1982 as evidenced by Ext.P1, his continuous service had commenced only subsequently, after a long gap of 23 years. The second spell of his service commenced only on 17/1/2005, from which date he has been working continuously till date. It is true that WPC Nos. 17982/2011 & others 10 Ext.P3 stipulates that (i) all temporary Class IV employees working in the LIC of India for more than five years as on 18/1/2011 (ii) who possessed minimum eligible qualification (pass in Standard IX) and (iii) age as prescribed by LIC of India as per its recruitment Rules/Instructions at the relevant time of their entry into the LIC of India are eligible to apply. As per the above stipulation, an employee who has worked for more than five years as on 18/1/2011, who possesses the minimum educational qualification (pass in Std. IX) and who satisfy the criteria regarding the age as prescribed by the LIC of India in its guidelines are eligible to apply. It is to be noted that the period of five years of service as stipulated in the guidelines is not from the date of first entry into service. Therefore, the date of commencement of the continuous period of five years of service is the date that should be taken into account for the purpose of determining the eligibility criteria. So, it is clear that broken spells of service of short periods are of no consequence. It cannot be tagged on to the continuous period of engagement stipulated by Ext.P3. The period of 33 days of service put in by the petitioner is separated by a long gap of 23 years from his WPC Nos. 17982/2011 & others 11 continuous service. Therefore, the stand of the respondent, that the service of the petitioner herein can be computed only from 17/1/2005 the date from which his period of continuous engagement commenced, cannot be found fault with. As rightly pointed out by the learned counsel for the respondent, the method of adopting one date as the date of commencement of continuous engagement is not what has been stipulated by Ext.P3. For the above reason, I am not satisfied that the petitioner in this writ petition is entitled to any of the reliefs sought for.
12. With regard to the petitioner in W.P.(C) No.17982/2011 the continuous service has commenced from 11/1/2006 and on 3/6/2011 he has completed the period of five years and seven days which is more than the period stipulated. However, in this case, the contention of the respondents is that the petitioner's date of entry into service should be taken as 25/4/2005 and if the said date is taken, he would be underaged having not completed 18 years of age. Along with I.A. No.2513/2012, the counsel for the first respondent has produced Ext.R3(a), R3(b) and R3(c) documents which are copies of the relevant portions of WPC Nos. 17982/2011 & others 12 the Budget Control Register for the year 2005 -06. Ext.R3(a) shows that from 25/4/2005 onwards, the petitioner had been engaged for short spells of four days or six days duration. Such short spells of engagement are not liable to be reckoned for the purpose of computing the minimum period of five years stipulated by Ext.P3, even according to the respondents. I have already found that placing reliance on such short periods of engagement for one purpose and adopting another date for the purpose of computing the minimum period of continuous service stipulated would be anomalous. Therefore, the stand of the respondent in the present case that the petitioner's application had to be rejected for the reason that he was underaged when his service is calculated from the date of his first entry into service i.e. 25/4/2000 is unsustainable. The date of first entry into service of the petitioner herein should have been taken to be 11/1/2006, the date from which his period of continuous engagement for the purpose of calculating the five year period stipulated by Ext.P3 commenced. Therefore, it has to be held that the rejection of the application of the petitioner by adopting 25/4/2005 as the date of his first entry into service is WPC Nos. 17982/2011 & others 13 unsustainable.
13. For the forgoing reasons, it is ordered as follows;
i). W.P.(C) Nos. 17984/2011 and 17964/2011 are dismissed.
ii). W.P.(C) NO.17982/2011 is allowed. It is made clear that the petitioner in this case is entitled to appear for the written examination and to take part in the process of selection for being regularised in the service of the first respondent in accordance with the directions contained in Ext.P1 judgment of the Supreme Court. For the above purpose, the first respondent shall conduct a fresh written examination and interview as early as possible. The written examination in this case was conduced on 26/6/2011. The petitioner had filed this writ petition on 4/7/2011. It is true that there has been a gap of one week in moving this writ petition. However, since this court was not inclined to grant any interim orders, the selection process proceeded and the interview is also stated to have been completed by now. Since I have found that the petitioner's application was rejected without any justification, it is only proper that as a special case a separate examination and WPC Nos. 17982/2011 & others 14 interview is conducted for the petitioner alone.
The learned counsel for the respondents expressed an apprehension that the above direction would open the doors for other writ petitions to be filed claiming similar reliefs especially since a re-test has been ordered. Hence It is made clear that the re-test ordered in this case is only in the special facts and circumstances of this case and is not meant to be quoted as a precedent.
Sd/-
K.SURENDRA MOHAN, JUDGE dpk WPC Nos. 17982/2011 & others 15