Kasturi Lal vs The Life Insurance Corpn. Of India
2009 Latest Caselaw 4636 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 10th November, 2009
                     Judgment Delivered on: 13th November, 2009

+                         LPA No.255/1999

       KASTURI LAL                            ...........Appellant
                 Through:      Major K.Ramesh (Retd.), Advocate.


                            versus
       THE LIFE INSURANCE CORPN. OF INDIA       ....Respondent
                  Through: Mr.Ravinder Sethi, Senior Advocate
                           with Mr.Kamal Mehta, Advocate and
                           Mr.Puneet Sharma, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?

     3. Whether the judgment should be reported in the
        Digest?


PRADEEP NANDRAJOG, J.

1. The appeal is directed against the judgment and

order dated 23.3.1999 dismissing WP(C) No.3607/1990 filed by

the appellant against Life Insurance Corporation of India (LIC).

2. The prayers made in the writ petition are as under:-

"(i) to direct the respondent to consider the case of the petitioner for the purposes of promotion to the post of Higher Grade Assistant (Artist) and promote him to the same post retrospectively from the date when he become eligible to be considered for promotion with all consequential benefits as in 1975- 1976;

(ii) to declare the illegal action of the respondents in deleting the category of the Higher Grade Assistant (Artist) from the New Rules of 1987 as totally arbitrary, illegal and discriminatory and violative of the fundamental rights of the petitioner as enshrined in the Articles 14 and 16 of the Constitution of India; and

(iii) grant any other relief, order/direction as this Hon'ble Court may deem fit in the circumstance of the case."

3. A pen profile of the service rendered by the appellant

under LIC at the time when the writ petition was filed may be

sketched.

4. The appellant joined LIC as an Assistant and while in

service, enhanced his professional and technical qualifications

by obtaining a Diploma in Art from All India Council of Technical

Education.

5. In view of the creative skill acquired by the appellant,

LIC posted him in its publicity department and assigned jobs of

designing house magazines, posters, illustrations etc.

6. On 21.2.1974, the appellant made a representation

to the Managing Director LIC, praying that he may be promoted

to the post of Higher Grade Assistant (Artist). On 7.4.1974, the

appellant was informed that he could not be promoted except in

his cadre and as per rules.

7. On 15.3.1976, LIC issued the promotion regulations

and listed various posts in the schedule thereof. One post of

Higher Grade Assistant (Artist) was created with the eligibility

condition that Artists with 5 years' service would be eligible for

promotion to the said post.

8. Hoping to get the benefit of the Promotion

Regulations, on 13.10.1976, the appellant made a

representation praying that he may now be promoted as a

Higher Grade Assistant (Artist), since for the last 8 years he was

working as an Artist.

9. At the level of the Division, various officers

recommended the case of the appellant to be promoted, but at

the higher level, the claim was turned down on the ground that

the appointment of the appellant was to the post of Assistant

and his promotion had to be in the cadre to the next higher post

i.e. of Higher Grade Assistant and no more.

10. The appellant then took up the issue requiring him to

be designated as an Artist. The post held by the petitioner was

not re-designated, but vide letter dated 6.5.1982, the

Sr.Divisional Manager LIC, informed the appellant, that in future

he would be referred to as an Artist.

11. On 25.9.1987, the Ministry of Finance (Department of

Economic Affairs) issued LIC Employees' Promotional Rules

1987, in which, no post of Higher Grade Assistant (Artist) was

notified.

12. The appellant made representation to be promoted

as Higher Grade Assistant (Artist) which was turned down on the

ground that no such post existed. It was informed to the

appellant that being appointed as an Assistant, he would be

considered for promotion to the post of Higher Grade Assistant

and no more.

13. The writ petition was filed in the year 1990 praying

as aforesaid.

14. Before noting the contentions urged by the appellant,

it may be noted that in the grade of Assistant, falling in the zone

of consideration, candidature of the appellant was considered,

and he was empanelled to be promoted as a Higher Grade

Assistant in the year 1989, but he did not do so. He insisted for

being promoted as Higher Grade Assistant (Artist), which post as

per the 1987 Rules did not exist.

15. The learned Single Judge has negated the pleas

urged by the appellant, holding that there being a cadre under

LIC, none can claim promotion outside the cadre de-hors the

Regulations. The learned Single Judge has held, that being

appointed as an Assistant, the appellant remained in the cadre

of Assistant and was never officially appointed as an Artist.

Merely because he was assigned the work given to an Artist did

not mean that the appellant held the substantive post of an

Artist and thus the appellant could not lay a claim for promotion

to the post of Higher Grade Assistant (Artist).

16. The second reason given by the learned Single Judge

is that, with the promulgation of the notification on 25.9.1987,

promotions had to be strictly in terms of the LIC Employees'

Promotion Rules 1987. Noting that the said Rules were not

challenged, it has been held that there being no post of Higher

Grade Assistant (Artist) under the Rules, the appellant could

claim no right to promotion to said post.

17. The alternative plea that the appellant who was

made to function as an Artist and in respect whereof various

officers wrote letters recommending that the appellant be

promoted as an Higher Grade Assistant (Artist) gave rise to a

legitimate expectation in the mind of the appellant and thus on

the principle of legitimate expectation he should be promoted as

a Higher Grade Assistant (Artist) has been rejected. It has been

held that the principle of legitimate expectation could not be

applied in the facts of the instant case.

18. The pleas which were urged before the learned Single

Judge were reiterated during arguments in the appeal.

19. We find no merit in either submission urged by

learned counsel for the appellant.

20. It is not in dispute that the appellant was appointed

as an Assistant and the post of an Assistant is a cadre post, with

the promotional post being that of Higher Grade Assistant. It is

no doubt true that the appellant was assigned the work of an

Artist, but at no stage was he given the substantive

appointment to the post of an Artist.

21. That apart, when the writ petition was filed in the

year 1990, the LIC Employees' Promotional Rules 1987 were

promulgated and the various posts were notified in the schedule

to the Rules. No post of Higher Grade Assistant (Artist) was

notified as a post under LIC. Having not challenged the Rules of

1987, we see no scope to grant any relief to the appellant.

22. We are surprised at the conduct of the appellant who

got promoted to the post of Higher Grade Assistant in the year

1989 and for all purposes and intent i.e. salary and other

benefits, got what he would have otherwise got on being

promoted as a Higher Grade Assistant (Artist), but he refused to

do so.

23. On the issue of legitimate expectation, the appellant

claims that the foundation of his legitimate expectation are the

various letters written by the superior officers recommending

that the appellant should be posted as an Artist and thereafter

promoted as a Higher Grade Assistant (Artist).

24. Mere recommendatory letters by junior level officers

have no meaning. If the Competent Authority had given any

such assurance and on the basis thereof the appellant had acted

to his detriment, we could have appreciated the submission.

That apart, no right can be enforced on the principle of

legitimate expectation which would run contrary to the notified

Rules. As noted above, the notified rules in the year 1987 did

not have any post of Higher Grade Assistant (Artist).

25. It is settled law that creation of a post lies exclusively

in the domain of the Executive and no mandamus can be issued

by any Court to the Executive to create a post. (See the

decision reported as 2008 (1) SCC 318 Balakrishna Behara &

Anr. vs. Satyaprakash Dash.)

26. We may lodge a caveat, the issue of creating

supernumerary post is an entirely different issue.

27. The appeal is accordingly dismissed.

28. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE November 13, 2009 Dharmender