Karnataka High Court
The Life Insurance Corporation vs Sourabh S/O. Sudhakar Saraf on 6 August, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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WA No.100105 of 2024
IN THE HIGH COURT OF KARNATAKA,
R
DHARWAD BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO.100105 OF 2024 (S-RES)
BETWEEN:
1. THE LIFE INSURANCE CORPORATION,
BY ITS MANAGING DIRECTOR,
HEAD OFFICE, MUMBAI-400029.
2. THE ZONAL MANAGER,
SOUTH CENTRAL ZONE,
LIFE INSURANCE CORPORATION,
HYDERABAD-500001.
3. THE SENIOR DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
LIFE INSURANCE CORPORATION,
DHARWAD DIVISION, DHARWAD-580008.
...APPELLANTS
Digitally signed
by JAGADISH T (BY SRI. A.P. MURARI, ADVOCATE)
R
Location: High
Court of
Karnataka
AND:
Dharwad Bench
SOURABH S/O. SUDHAKAR SARAF,
AGE. 31 YEARS, OCC. NIL,
R/O. C/O. L.V. JOSHI COMPOUND,
NEAR YEMMIKERI, MALAMADDI,
TQ. AND DIST. DHARWAD-580007.
...RESPONDENT
(BY SRI. GIRISH V. BHAT, ADVOCATE)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT
ACT, 1961, PRAYING TO, SET ASIDE THE IMPUGNED ORDER IN WP
NO.102956/2022 (S-RES) DATED 14.02.2024 PASSED BY THE
LEARNED SINGLE JUDGE AND TO DISMISS THE W.P.NO.102956/2022
(S-RES) WITH COSTS.
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WA No.100105 of 2024
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT)
1. The Life Insurance Corporation, a statutory body
in appeal for laying a challenge to the learned Single
Judge's order dated 14th February 2024, whereby the
private respondents' W.P. No.102956 of 2022 (S-RES)
having been favored, a direction has been issued to the
appellant-Corporation "to appoint the writ petitioner as
against the permanent vacancy that has arisen after
14.01.2020 till 14.01.2022" (sic). Learned Judge has also
prescribed a period of two months for compliance of the
order.
2. Learned Senior Panel Counsel Prof. A.P. Murari
appearing for the appellants vehemently submits that it has
been settled position in service jurisprudence that no Court
shall direct appointment, although in suitable cases,
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direction may be issued for consideration of the candidature
for appointment. This norm having been violated in framing
the judgment in challenge, there is first lacuna apparent on
its face. Secondly, Prof. Murari adds that the private
respondent herein, who was figuring at Sl.No.43 in the EWS
List was not within the zone of consideration, and this
aspect having been lost sight of, another error is added.
Lastly he submits that the enlistment in the select list does
not saddle the employer with a duty to make appointment.
In support of his submission a decision of Apex Court in
State of Karnatka Vs. Bharathi1 is relied upon. So
arguing, he seeks allowing of the appeal, and voiding of the
impugned order.
3. Learned counsel appearing for the private
respondent per contra make submission with equal
vehemence in justification of the impugned order and the
reasons on which it has been constructed. He contends that
the LIC being State under Article 12 of the Constitution is
2023 SCC Online SC 665
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bound by its representations made to the candidates who
on that basis participated in the selection process and
therefore cannot take a stand contrary to such
representation. Finally he adds that the doctrine of
legitimate expectation come to the rescue of his client.
Finally he also repeals the contention of the appellants that
his client is not within the zone of consideration. In support
of his submission, he banks upon a decision of the
U.S. Supreme Court in Vitarelli Vs. Seaton2. So
contending, he seeks dismissal of the appeal.
4. Having heard the learned counsel appearing for
the parties and having perused the appeal papers, we
decline indulgence in the matter, broadly agreeing with the
submission made on behalf of the private respondent who
happened to be the writ petitioner before the learned Single
Judge. Ordinarily, it is true, writ Courts do not direct any
employer to make appointment of any candidate who
figures in the Selection List, inasmuch as selection per se
(1959) 359 US 535
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does not give an indefeasible right to appointment.
However, that is not a thumb rule and in appropriate cases
a direction for appointment can also be given. Even
otherwise we may construe the operative portion of the
order as a direction to consider the candidature of private
respondent for appointment to the vacancy in question. This
satisfactorily treats the first contention. More is not
necessary to deliberate on this.
5. The second contention of the appellants that the
writ petitioner is not within the zone of consideration for
appointment does not impress the Court, even in the least.
The recruitment notification dated 17.09.2019 a copy
whereof is avails at Annexure-A at paragraph No.9 and
more particularly at internal page No.7 has the following
projection:
"Empanlement:
Recruitment shall be only against the sanctioned
vacancies. For this purpose, a ranking list of
candidates for appointment shall be prepared. In
order to prepare such ranking list the number of
persons to be empanelled shall be 20% above
notified vacancies. The validity period of the ranking
list shall be maximum of two years from the date of
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publication or till next recruitment notification,
whichever is earlier. Only after filling up the notified
vacancies, the persons who are remaining in the
ranking list shall be considered for appointment
against permanent vacancies as and when the need
arises, within the validity period mentioned above."
The validity period of the selection list being two years and
some of notified vacancies still existing, candidates
remaining in the selection list need to be considered for
appointment, as rightly contended by learned counsel
appearing for the private respondent, who is in the waiting
list.
6. It is relevant to reproduce another representation of
the appellants inter alia made to the candidates of EWS and
Unreserved Category. That is at the penultimate and ultimate
paragraphs of the proceeding dated 14.01.2020 drawn by the
Divisional Office of the LIC itself, at Annexure-C. The same read
as under:
"Validity period of the empanelment list shall be
maximum two years from the date of its publication
or till next recruitment notification, whichever is
earlier. The candidates in empanelment list will be
considered against permanent vacancies as and
when need arises, within the validity period
mentioned above, only after filling up the vacancies
from the main ranking list. It should be noted that no
right of permanent appointment will accrue to any
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candidate in emapelled list by virtue of his/her name
in empanelled list.
No correspondence will be entertained from the
candidates whose names do not appear in the list.
All the candidates appearing in the list including
empanelment list, are advised to contract he
Manager (P&IR) of the Division at following address,
by 16.01.2020 to get the information about further
process of recruitment."
7. It is relevant to state that the statutory bodies
like the appellant - LIC being an instrumentality of State
under Article 12 of the constitution, has to conduct itself as
a model employer and not as a private entity acting upon
its own whims and fancies. When such a public entity holds
to the candidates in the fray a particular standard which it
would abide by in the recruitment process, it is liable to
adhere to the same as a matter of public policy, regardless
of the statutory backing therefor. Justice Felix Frankfurter
of the U.S. Supreme Court in Vitarelli Vs. Seaton supra
has observed as under:
"An executive agency must be rigorously held to
the standards by which it professes its action to be
judged ... Accordingly, if dismissal from employment
is based on a defined procedure, even though
generous beyond the requirements that bind such
agency, that procedure must be scrupulously
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observed ... This judicially evolved rule of
administrative law is now firmly established and, if I
may add, rightly so. He that takes the procedural
sword shall perish with the sword."
The said observations have been internalized in our system
by Apex Court decision in B.S. Minhas Vs. Indian
Statistical Institute3. This apart the very holding of the
appellants to the qualified section i.e., the candidates in the
fray of recruitment creates a legitimate expectation in them
because of which they had staked their claim for selection
and admittedly got selected. Such an expectation cannot be
unjustifiably defeated when vacancies do still obtain. All this
come to the rescue of private respondent in this challenge
to the impugned order.
8. The next contention that the appellant being at
Sl. No.43 in the EWS List is not within the zone of
consideration and therefore cannot be granted appointment
again is difficult to agree with. Reason for this is not for to
seek. The Divisional Office of LIC in its proceeding dated
14.01.2020 at Annexure-C has short listed not only the
AIR 1984 SC 363
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candidates but also empanelled EWS candidates in which
the private respondent happens to be the sole one. Even in
the list of empanelled candidates of Unreserved Category
(UR) he figures at Sl.No.1. The said letter at internal page
No.2 reads as under:
"Empanelled candidates for SC (in order of merit)
S Rollno Full Name Category
No.
1 2711000477 P RAJYA LAKSHMI SC
Empanelled candidates for ST (in order of merit)
1 2711005929 SUPRITHA R ST
Empanelled candidates for OBC (in order of merit)
NIL
Empanelled candidates for EWS (in order of merit)
1 2711004273 SOURABH SARAF EWS
Empanelled candidates for UR (in order of merit)
1 2711006731 NEERAJAKSHA HALAPETI UR
2 2711006794 POOJA MOHAN ANGADI UR
3 2711006725 ROHAN KULKARNI UR
Therefore, it cannot be gainfully argued that the private
respondent was miles away from the zone of consideration.
9. The last contention of Prof. Murari that mere
appearance of name in the Final Selection List does not
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obligate the employer to grant appointment, there being no
right inhering in the candidates, is ordinarily true. Such a
view is supported by the decision of the Apex Court in
Bharathi supra, wherein paragraph No.13, reads as under:
"13. The position that emerges from the
above decisions is that the duty to fill up vacancies
form the Additional List (waiting list) can arise only
on the basis of a mandatory rule. In the absence of
such a mandate, the decision to fill all the vacancies
from the Additional List, is left to the wisdom of the
State. We will however add that State cannot act
arbitrarily and its action will be subject to judicial
review."
However, the above view is not a thumb rule, again. A host
of factor enter the fray. The duty to appoint the selected
candidate in the waiting list arises because of a peculiar
terminology employed by the appellants in their
Recruitment Notification followed by what has been stated
in the proceedings drawn on 14.01.2020, already referred
to above. Added it is not the case of the appellants that
there is no dearth of employees in the organization. It is
also not their case that the subject vacancies need not be
filled at all. An Article 12 - entity cannot be readily heard to
say that though vacancies in the permanent posts do
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galore, it would not make appointment from the select list.
In the realm of public employment, right to be considered
for appointment once duly selected, assumes proprietary
character and that puts the said right on a higher pedestal,
opportunity in public employment being constitutionally
guaranteed under Article 16. It hardly needs to be stated
that a decision is an authority for the proposition that it lays
down in a given fact matrix, and not for all that which
logically follows from what has been so laid down vide Lord
Halsbury in Quinn Vs. Leatham4.
10. Need for undertaking periodical recruitment
process:
(a) There is yet another aspect of great importance which
is often lost sight of: People pursue education so that they
become qualified inter alia for employment, public or
private. Ordinarily age restriction though variable is
prescribed in the matter of public employment. If cut off
age for applying for appointment is 30 years for persons
belonging to general category, it may be 35 years or so for
(1901) A.C. 495, 506
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SC/ST category. Though the vacancies do occur in regular
course because of death, disablement, retirement or
removal, no recruitment process is undertaken periodically
by the public bodies. Ordinarily, it is the discretion of
employer to make appointment or not, to the existing
vacancies. However, that discretion as any has to be
exercised in accordance with rules of reason and justice,
said Lord Halsbury in Sharp vs. Wakefield5. When
accumulated vacancies are continued indefinitely, that
would not only affect the efficacy of public administration
but render many qualified & eligible job aspirants age
barred. It needs no research to know that there has been
heart-burn in the younger generation legitimately aspiring
for public employment that the recruitment process is not
periodically undertaken. Even those bordering the age-bar
too would suffer a great anxiety.
(b) Men are mortal and life is short. There is something
called 'aging process' that spares none. This needs to be
[1891 AC 173, 179: 64 LT 180]
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kept in view by the authorities that be. A large chunk of
educated youths cannot be deprived of the opportunity of
public employment, which is constitutionally guaranteed.
Learned Author Richard Sobel writes:
"The right to employment has long been
fundamental for citizens. From the early republic to
the civil rights era, United States Supreme Court
decisions from Corfield Vs. Coryell (1823) to Butcher
Union Co. (1884) and Truax (1915) to Roth (1972)
recognized that taking employment is a foundational
citizenship right and is preservative of other rights.
Though less recognized than voting rights, the
constitutional right to take employment facilities and
undergirds other rights to pursue the American
dream and happiness in social and political
dimensions. The right may not be abridged by
burdens to its exercise ...6".
Article 23 of the Universal Declaration of Human Rights,
1948 provides that we shall have the right to employment,
to be free to choose our work, and to be paid a fair salary
that allows us to live and support our family. The facile
generalization that there is no constitutionally assured right
to public employment, is to obscure the issue. We need not
pause to consider whether an abstract right of the kind,
exists. Suffice it to say that in the ever-evolving Human
Citizenship as Foundation of Rights, Cambridge University Press - 2016
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Rights Jurisprudence, such a right indisputably does exist,
with a corresponding duty to undertake recruitment process
resting on the public entities. Time has come to tell that in
the realm of public employment, recruitment process has to
be undertaken periodically with a fair degree of regularity.
This view gains support from MALIK MAZHAR SULTAN vs.
UTTAR PRADESH PUBLIC SERVICE COMMISSION.7 It
becomes more imperative when evil of unemployment is
plaguing our system. An argument to the contrary, if
countenanced, would render a large chunk of eligible youths
aspiring for public employment, age-barred. Their curse
would fall on all branches of the system. That is not a happy
thing to happen, in a Welfare State.
In the above circumstances, no other ground having
been urged, this unmeritorious appeal, is liable to be
dismissed, and accordingly it is, costs having been made
easy.
The time for compliance of the impugned order is
refixed as two months.
(2008) 17 SCC 703.
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This Court places on record its deep appreciation for
the able research assistance rendered by its official Law
Clerk Mr. Raghunandan K.S.
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
Vnp* / CT:VP
