Baldaniya Maheshkumar Keshavlal vs Life Insurance Corporation Of ...
2021 Latest Caselaw 17838 Guj

    C/SCA/16059/2018                              JUDGMENT DATED: 29/11/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16059 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1    Whether Reporters of Local Papers may be allowed                  NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                           NO

3    Whether their Lordships wish to see the fair copy                 NO
     of the judgment ?

4    Whether this case involves a substantial question                 NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                    BALDANIYA MAHESHKUMAR KESHAVLAL
                                  Versus
                   LIFE INSURANCE CORPORATION OF INDIA
==========================================================
Appearance:
MR ASHISH B DESAI(5163) for the Petitioner(s) No. 1
MR MAULIK J SHELAT(2500) for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                             Date : 29/11/2021
                             ORAL JUDGMENT

(1) RULE. Learned advocate Mr.Shelat waives service of notice of rule for and on behalf of the respondents.

(2) By way of the present petition, the petitioner has, inter alia, prayed for the following reliefs:

"(A) Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, order or direction that the petitioner was working since 2002 and had rendered about 5 years of service in January 2011.

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(B) Your Lordships may be pleased to direct the respondents to hold limited examination for the petitioner also who was eligible for appearing in such examination as per the order of the Hon'ble Supreme Court dated 18/1/2011 in Civil Appeal No.953-968 of 2005."

       (C)    xxx xxx xxx

       (D)    xxx xxx xxx"

(3) The          petitioner          is        seeking        a      direction
directing             the    respondents           to       conduct              his

examination as per the order passed by the Apex Court dated 18.01.2011 in Civil Appeal Nos.953-968 of 2005. Petitioner has also placed reliance on the judgement dated 29.06.2018 passed in Special Civil Application No.4553 of 2015 and allied matters.

(4) The petitioner was engaged on contractual basis on 12.08.2003. Some of the similarly situated employees from other divisions approached the Supreme Court of India by filing Civil Application No.953 of 2005 to Civil Application No. 968 of 2005, in the case of LIC of India Vs. Shri D. V. Anilkumar and Ors., and the Apex Court vide its order dated 18.01.2011, directed the respondent to hold one time limited written examination for recruiting temporary workers in Class-IV category, who have worked for more than 5 years with the respondent and also who possess minimum eligible qualification and age as prescribed at the relevant point of time. On the basis of the aforesaid order of the Apex Court, the respondent had issued a Notification dated 25.05.2011. As per the

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notification, as a one time measure, the respondent was conducted a written examination on 26.06.2011 in vernacular language with limited syllabus, to recruit temporary workers under Class-IV category, who have worked with the respondent for more than 5 years as on 18.01.2011 and who possessed minimum eligible qualifications and age at the relevant time, subject to getting short listed in the exam and interview.

(5) Accordingly, the petitioner also applied for appearing in the examination vide application dated 31.05.2011 (at Annexure-I Page No.73), whereby the petitioner has specifically, in Column No.5, stated that he has worked for 7 years, 5 months and 06 days before the cut-off date and he was engaged in work from 12.08.2003. It appears that the application of the petitioner was not considered due to calculation of the total days on which he was engaged on work.

(6) Learned advocate Mr.Desai has submitted that the issue is squarely covered by the judgement dated 29.06.2018 passed in Special Civil Application No.4553 of 2015 and allied matters. He has submitted that there were some employees whose applications for appearing in the examination were not considered as the respondent No.1 calculated five years of service as 1825 days instead of calculating five years of service and when they

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approached this Court, such action of the respondent was set aside and the respondent was directed to conduct the examination. He has submitted that the case of the petitioner was not considered since the respondent had calculated days of working instead of years of service as envisaged in the order passed by the Apex Court. Thus, he has submitted that the respondents may be directed to conduct the examination of the petitioner.

(7) In response to the aforesaid submissions, learned advocate Mr.Shelat has primarily raised the ground of delay in approaching this Court by filing the captioned writ petition. He has submitted that the petitioner cannot take benefit of the judgement dated 29.06.2018 passed by the Coordinate Bench since the directions were only issued in favour of those petitioners who have approached earlier. He has submitted that the petitioners of those writ petitions had earlier approached in the 2013 challenging the action of the respondents of not accepting their applications for appearing in the examination and after directions were issued in the writ petition filed in the year 2013 for considering their representations and since their representations were rejected, they had filed writ petitions being Special Civil Application No.4553 of 2015 and allied matters in the year 2015 and the petitioner, being a fence-sitter, is not entitled to the benefits of the said decision. In support of

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his submissions, he has placed reliance on the judgement of the Apex Court in the case of State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava and Ors., (2015) 1 S.C.C. 347, more particularly paragraph No.22.2 thereof. He has submitted that the judgement of the Coordinate Bench is not passed in rem and hence, the same would not apply in case of the present petitioner.

(8) Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

(9) The genesis of the issue raised in the writ petition lies in the order passed by the Apex Court dated 18.01.2011. The Apex Court, has in its order dated 18.01.2011, passed in Civil Appeal No.953 of 2005 to Civil Appeal No.968 of 2005, issued directions to the respondent to conduct, as a one time measure, a written examination to recruit temporary workers who have worked for 5 years or more as on 18.01.2011 with the respondent and who also satisfy other conditions like age and educational qualifications. In pursuance to the said order, the respondent had issued Notification vide dated 25.05.2011. As per the Notification, the respondent was to conduct, as a one time measure, a written examination to recruit all the temporary workers who have worked for 5 years or more as on 18.01.2011.

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(10) The petitioner was not considered eligible for appearing in the examination since the respondent had calculated his working days from 2002 and till cut-off date 18.01.2011. It appears that being aggrieved by the similar action of the respondents in denying the permission to other similarly situated employees, they had filed writ petitions being Special Civil Application No.4553 of 2015 and allied matters before the Coordinate Bench of this Court. The Coordinate Bench vide order dated 29.06.2018 has observed thus:

"15. On bare perusal of the Order dt. 18.01.2011 and the Notification vide dt. 25.05.2011, it is apparent that it only provided that a worker should have worked for 5 years or more as on 18.01.2011 with the respondent and shall also satisfy other requirements, in order to be eligible for appearing in the one time written exam. It nowhere prescribes that the criteria of 5 years of services has to be calculated by multiplying 365 days into 5 days, meaning thereby, work for 1825 days as on 18.01.2011. The respondent, while formulating and issuing the Notification vide dt. 25.05.2011, had considered the workers eligible, who have worked for 5 years or more with the respondent and also satisfy other requirements. However, at the time of implementing the Notification and accepting the applications, respondent had all of a sudden shown a deviation and contradicted its own stand by calculating 5 years of service by multiplying 365 days into 5 years which means in order to be considered as eligible for the written exam a worker was required to have worked for 1825 days or more as on 18.01.2011.

16. The Court is unable to understand as to how the respondent has all of a sudden changed its stand. Besides, the learned advocate for Corporation has submitted that workers are required to work for 1825 days because a temporary worker works for less number of days in a year. Hence, in order to become eligible for the written exam they need to work for 1825 days as on

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18.01.2011.

17. It is apparent that in the Order dt. 18.11.2011 passed by the Hon'ble Apex Court as well as under the Notification vide dt. 25.05.2011, issued by the respondent, the common subject was "temporary worker". Both the authorities must have been aware of the fact that the temporary workers, work only as and when work is allotted to them viz. for less number of days in a year, despite that fact the minimum duration of service to be eligible is laid as 5 years and not 1825 days. Hence, the respondents have just attempted to play mischief with the order of Hon'ble Apex Court and deprive the petitioners of their lawful rights.

18. Even as per the statutory law, viz. Section 25 - B, Industrial Disputes Act, 1947, if a worker has worked for 240 days a year, then it is deemed that he has rendered continuous service. Although the said provision is not applicable to the present matter, but if applied, the number of days of work equal to 5 years of service shall be 1200 days, by calculating 240 days into 5 day (240 x 5) and not 1825 days.

19. It is the fate of the petitioners and irony of law, as to how the respondents, by interpreting the judgment of the Apex Court in their own way, have attempted to deprive the petitioners of their lawful right to appear in the examination, for which they were eligible as well.

20. In view of the afore-going discussion, these petitions are allowed. The impugned Order dt. 11.06.2014 is quashed and set aside. The respondents, have grossly misinterpreted the direction of the Hon'ble Supreme Court. The petitioners are hereby held eligible to appear in the one time written examination. Despite the fact that the selection process has concluded long time back, the respondents are hereby directed to conduct once again, the written exam within a period of 2 (two) weeks from the date of receipt of copy of this Order qua for the present petitioners, subject to satisfaction of other requirements by them. Rule is made absolute."

(11) The Coordinate Bench of this Court has highly criticized the policy/process or the method adopted by the respondent-LIC of calculating total 1825 days of temporary or contractual employee for five years instead of actual counting of five years of

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service as on 18.01.2011. This Court has also criticized the calculations of working days by multiplying 365 days with five years (i.e. 1825 days) for holding an employee eligible for appearing in the written examination. This Court has held that the respondents have attempted to play mischief with the Apex Court by depriving the petitioners of their lawful rights by calculating the 1825 days as on 18.01.2011 instead of applying the criteria of five years. After making such observation, this Court has directed the respondent to conduct fresh examination of those petitioners within a period of two weeks. It is not in dispute that the petitioner was also denied the permission to appear in the examination on the similar grounds on which his colleagues were denied, i.e. not fulfilling the working for 1825 days as on 18.01.2011.

(12) The respondent has not disputed that the case of the petitioner is similarly situated to the petitioners of the aforementioned writ petitions in whose favour this Court has issued the directions. The writ petition is being opposed only on the ground of delay. While opposing the writ petition filed by the petitioner, the respondent-LIC, while placing reliance on the judgement of the Apex Court in the case of Arvind Kumar Srivastava (supra), has contended that the petitioner being a fence-sitter, is not entitled to take shelter under the judgement

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dated 29.06.2018 passed in case of similarly situated employees. It is not denied by the respondent authorities that the petitioner is also similarly situated to those employees but only because he has approached this Court in 2018 after the judgement, it is contended that the petitioner is not entitled to similar directions issued by this Court.

(13) At this stage, it would be apposite to refer to the observations made by the Apex Court in the case of Arvind Kumar Srivastava (supra). The same reads as under:

" 22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.

22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identi- cally situated persons need to be treated alike by ex- tending that benefit. Not doing so would amount to dis- crimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service ju- risprudence evolved by this Court from time to time pos- tulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well-recog- nised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judg- ment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sit- ters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

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22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situa- tion can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regulari- sation and the like (see K.C. Sharma v. Union of In- dia [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from ei- ther laches and delays or acquiescence."

(14) It is true that the Apex Court has held that all other identically situated persons need to be treated alike by extending benefit, which is a normal law. This principle needs to be applied in service matters more emphatically as persons who are similarly situated but have not approached the Court, they would not be entitled for the similar relief on the ground of well recognized exceptions in the form of laches and delays as well as acquiescence. The Apex Court has observed that they should be treated as "fence-sitters". However, it is also held that this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the

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authorities to itself extend the benefit thereof to all similarly situated persons.

(15) In the present case, the manner and method in which the respondent has implemented the order of the Apex Court was highly deprecated and condemned by this Court, as noticed hereinabove. The methodology or policy or calculation adopted by the respondent authority in multiplying 365 days with 5 years before the cut-off date of 18.01.2011, has been set aside by this Court. This Court has even passed strictures against the respondent in misinterpreting the direction issued by the Apex Court. Though the directions which are issued by this Court in the judgment and order dated 29.06.2018 are in favour of those petitioners, it was obligatory upon the respondent authorities to implement the judgement of this Court in those cases also wherein the employees have not been permitted to take the examination in view of the illegal and arbitrary method adopted by the respondent-LIC. It was the solemn duty of the respondent-LIC to apprise this Court that there were other employees, who were also ousted by their illegal action and they are also entitled to the same relief. When the policy or the procedure adopted by the respondent in interpreting the order of the Apex Court is held to be illegal, then the judgment of this Court in favour of few cannot be made applicable to only those employees who had approached earlier. The petitioner, who is the

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victim of an illegal interpretation of the order of the Supreme Court, cannot be refused the identical relief which is granted in favour of his colleagues. When a specific direction was issued by this Court vide dated order dated 29.06.2018 to hold the examination, and the examination was also held pursuant to such directions, then it was the responsibility of the respondent to consider all the applications of those candidates who were debarred by them on same illegality, and they should have been allowed to undertake the examination. Thus, the reliance placed on the judgment of the Apex Court in the case of Arvind Kumar Srivastava (supra) will not come to the rescue of the respondent. The petitioner in his application dated 31.05.2011, filed for appearing in the examination in Column No.5 has categorically mentioned that he has completed 7 years, 5 months and 06 days from 12.08.2003 before the cut-off date. Thus, the respondent should have allowed the petitioner to appear in subsequent examination, after the judgment and order dated 29.06.2018 passed by this Court.

(16) The observations made in paragraph No.20 of the judgement dated 29.06.2018 clearly establishes that the Coordinate Bench of this Court was conscious of the fact that the process had concluded long back, but has issued direction to hold the examination in case of those employees.

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Similarly, the respondents are directed to accept the application filed the petitioner and conduct the written examination in his case within a period of two months from the date of receipt of writ of this order. Accordingly, the petition is allowed. RULE is made absolute.

                                                        Sd/ -    .
                                                (A. S. SUPEHIA, J)
NVMEWADA