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2021 Latest Caselaw 3913 Ker

W.A.No.158 of 2021                   1




                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
              THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                         &
                      THE HONOURABLE MR. JUSTICE T.R.RAVI
   WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
                               WA.No.158 OF 2021
  AGAINST THE ORDER DT.18.1.2021 IN WP(C) 1286/2021(I) OF HIGH
                                COURT OF KERALA
APPELLANTS/RESPONDENTS IN THE WRIT PETITION:

        1            LIFE INSURANCE CORPORATION OF INDIA
                     REPRESENTED BY THE MANAGING DIRECTOR,
                     LIFE INSURANCE CORPORATION OF INDIA,
                     CENTRAL OFFICE, NARIMAN POINT, MUMBAI-400021.

        2            MANAGING DIRECTOR,
                     LIFE INSURANCE CORPORATION OF INDIA LTD.,
                     CENTRAL OFFICE, NARIMAN POINT, MUMBAI-400021.

        3            ZONAL MANAGER,
                     LIFE INSURANCE OF INDIA LTD.,
                     LIC BUILDING, ANNA SALAI, CHENNAI-600002.

        4            SENIOR DIVISIONAL MANAGER,
                     DIVISIONAL OFFICE,
                     LIFE INSURANCE CORPORATION OF INDIA LTD.,
                     NEGAMPADOM, KOTTAYAM-686001.

             BY ADV. SRI.S.EASWARAN
RESPONDENT/PETITIONER IN THE WRIT PETITION:

                     K. YOGANANDAM
                     ASSISTANT, LIC OF INDIA, BRANCH OFFICE,
                     VANDIPERIYAR, IDUKKI DISTRICT-685533,
                     S/O.KRISHNAN, RESIDING AT 204 ANAND HOUSE,
                     PAMBANAR P.O., PEERMADE, IDUKKI-685531.

                     SRI.KALEESWARAM RAJ

    THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.158 of 2021                       2




                     ALEXANDER THOMAS & T.R. RAVI, JJ.
                      ------------------------------------------------
                                 W.A.No.158 of 2021
                         (Arising out of the interim order dated
                          18.01.2021 in W.P.(C)No.1286/2021)
                       --------------------------------------------------
                     Dated this the 3rd day of February, 2021


                                      JUDGMENT

ALEXANDER THOMAS, J.

The appellants herein, who are respondents in W.P.(C)No.1286

of 2021 filed by the respondent herein, have filed the instant intra

court appeal under Section 5(i) of the Kerala High Court Act so as to

impugn the interim order dated 18.01.2021 rendered by the learned

Single Judge in the said writ petition.

2. Heard Sri S.Easwaran, learned Standing Counsel for the

Life Insurance Corporation of India appearing for the

appellants/respondents in the writ petition and Sri Kaleeswaram Raj,

learned counsel appearing for the sole respondent in the appeal/writ

petitioner.

3. The writ petitioner/respondent herein is working in the

post of Assistant, which is a Class III post under the Life Insurance

Corporation of India (LIC, for short) on a temporary basis for the last

20 years or so. The Apex Court has framed a scheme for

regularisation of temporary employees like the writ petitioner

employed in the LIC as per directions and orders passed as per

Exts.P2 to P4 in Civil Appeal Nos.2268/2011 & connected cases and

Civil Appeal Nos.4703-4735/2016 and the essence of the Scheme is

that such temporary employees may be subjected to a Limited

Departmental Examination and those who qualify the same may be

considered for regularisation in accordance with the terms and

conditions in the said Scheme. The orders at Exts.P2, P3 and P4 have

been rendered by the Apex Court on 20.10.2016, 15.01.2020 and

06.03.2020 respectively. There is no necessity to get into the various

details of the said Scheme framed for regularisation. In pursuance of

the said direction issued by the Apex Court as per Exts.P2 to P4, the

competent authority of the LIC have decided to conduct a Limited

Departmental Examination for temporary employees like the

petitioner and Ext.P5 is the intimation dated 6.11.2020 sent by the

LIC to the writ petitioner. Clause 8 of Ext.P5 would stipulate that

"such of those petitioners who do not apply or are not successful in

the limited examination shall cease to be in the employment of the

Life Insurance Corporation of India". The said examination was

scheduled to be conducted in Chennai on 29.11.2020. In the

meanwhile, some of the similarly situated employees working in

various offices of the LIC within the State of Kerala have approached

this Court by filing W.P.(C)No.26033 of 2020 raising the contention

that the direction issued by the Apex Court at Ext.P2 herein is to "hold

a limited written examination in the vernacular language with a

limited syllabus to be announced in advance" and that the notified

examination scheduled to be conducted by the LIC is in violation of

the said direction and that the Scheme of the examination should be

revised so as to come within the strict parameters of the guidelines

issued by the Apex Court as per Exts.P2 to P4. Further, it is also

urged before this Court that the said examination was proposed to be

held by the LIC in Chennai even for temporary employees like those

petitioners who are working in other southern States like the State of

Kerala and that it is really difficult to be present in Chennai during the

times of the Covid-19 pandemic issues. A learned Single Judge of this

Court had then issued Ext.P8 interim order dated 26.11.2020 in W.P.

(C)No.26033 of 2020, wherein it has been, inter alia, directed that

the issue as to whether the examination is not in tune with the

guidelines and the norms issued by the Apex Court in the Scheme for

regularisation could be adjudicated and appreciated only after

conduct of the examination and that the petitioners therein will have

to appear for the said examination. However, this Court held that in

view of the Covid-19 pandemic issues, it may be really difficult for

persons like the petitioners therein, if they are compelled to

participate in the examination in Chennai, as many of them are

hesitant to travel all way to Chennai. This Court had also then

secured factual instructions about various aspects in relation to Covid-

19 pandemic issues from the learned Senior Government Pleader who

had also submitted about the various difficulties like undergoing the

process of quarantine, if one is to travel outside the State. Taking note

of these aspects, this Court directed that the LIC should conduct an

online examination in a Centre within the State of Kerala so as not to

cause any prejudice to those petitioners and accordingly it has been,

inter alia, directed that the LIC must ensure that the petitioners are

afforded a Centre in Kerala so as to enable them to write the

examination which was scheduled on 29.11.2020.

4. The matters have not rested there. In view of the serious

challenge made by the petitioners therein on the issue as to whether

the said proposed examination was in consonance with the scheme

and norms framed by the Apex Court, the LIC had taken the stand

that it cannot be advisable to straightaway conduct the examination

and it may be better in the interest of both sides that the writ petition,

W.P.(C)No.26033 of 2020 be heard and disposed of and after

knowing the said verdict, the LIC could take steps to schedule and

actually conduct the examination later. With this premise, the LIC

has filed intra court appeal as W.A.No.1715/2020 before the Division

Bench of this Court so as to impugn the above said order dated

26.11.2020 rendered by the learned Single Judge in W.P.(C)No.26033

of 2020 (produced as Ext.P8 herein) as well as the subsequent interim

order dated 11.12.2020 rendered by the learned Single Judge in the

said writ petition. The Division Bench of this Court has rendered

Ext.P9 judgment dated 18.12.2020 in W.A.No.1715 of 2020 filed by

the LIC authorities, taking the view that the LIC is right in pointing

out that in view of the challenge made as against the Scheme of the

examination, it is better to conduct the examination after the final

verdict in the said writ proceedings. Further, it can be seen from

paragraph 2 of internal pages 7 and 8 of Ext.P9 judgment of the

Division Bench that Their Lordships have also taken note of the

submissions of the LIC that they are willing to conduct the said

examination for persons in Kerala at a Centre in Kerala itself and that

the examination can be held after final disposal of the said writ

petition. The Division Bench has also noted that though such a

request was made by the LIC before the learned Single Judge, the said

plea of the LIC was rejected by yet another interim order dated

11.12.2020 rendered by the learned Single Judge in the said writ

petition. The above said subsequent interim order dated 11.12.2020

rendered by the learned Single Judge in the said writ petition was also

the subject matter of challenge in W.A.No.1715 of 2020.

5. Now coming to the facts of this case, according to the writ

petitioner, he had taken leave from the LIC as per Annexure A1 dated

20.11.2020 to proceed to Chennai to appear in the examination in

response to Ext.P5 intimation and Ext.P7 hall ticket issued to him and

that he had actually proceeded to Chennai to appear in the

examination which was scheduled to be conducted on 29.11.2020.

After reaching Chennai, he had come to know that this Court has

passed order as above in the matter to conduct online examination in

the State of Kerala and that the writ petitioner was under the

impression that the said examination would be extended to all similar

candidates in the State of Kerala. Therefore, he did not participate in

the said examination which was then scheduled to be held in Chennai

on 29.11.2020. In view of condition No.8 of Ext.P5, the appellant LIC

authorities have issued the impugned Ext.P10 order dated 14.01.2021

ordering to terminate the temporary service of the writ petitioner on

the ground that he has not actually appeared in the examination

which was conducted in Chennai on 29.11.2020. It is thereafter that

the writ petitioner has filed W.P.(C)No.1286 of 2021 with the

following prayers and interim relief.

"(i) To issue a writ of certiorari quashing Ext.P5 as unjust, illegal and arbitrary.

(ii) To issue a writ of certiorari quashing Ext.P10 as unjust, illegal and arbitrary.

(iii) To declare that, the petitioner is entitled to continue as Assistant in the service of the 1st respondent.

(iv) To declare that the petitioner is entitled to be regularised in service from the initial date of his appointment with all service benefits.

(v) To declare that Ext.P5 is not issued by following the directions in Exts.P2 to P4.

(vi) To issue a writ of mandamus directing the respondents to formulate a scheme and design an examination as directed by the Hon'ble Supreme Court in Ext.P2 to Ext.P4.

(vii) To declare that the respondents are bound to conduct a written test of lesser standard than as fixed in Ext.P5, in vernacular, at each divisions of the 1st respondent, with no separate minimum for sections of test, no separate maximum duration for section test, no negative mark, from a limited syllabus published at least one month prior to the examination.

(viii) To issue a writ of mandamus, directing the respondents to conduct a written test of lesser standard than as fixed in Ext.P5 in vernacular, at each divisions of the 1st respondent, with no separate minimum for sections of test, no separate maximum duration for section test, no negative mark, from a limited syllabus published at least one month prior to the examination.

(ix) To issue a writ of mandamus directing the respondents to permit the petitioner to participate in the examination conducted as per prayer No.vi, vii and viii.

(x) To issue sch other orders, directions or writs as may be prayed for an that this Hon'ble Court may deem fit under the facts and circumstances of the case."

Interim relief "......... .......... to pass an interim order directing the respondents to retain the petitioner in the service of the 1 st respondent as Assistant by keeping in abeyance Ext.P10 and all further actions based on the same, till this writ petition is heard and finally disposed of."

6. The above said W.P.(C)No.1286 of 2021 was filed on

15.01.2021 and it come up for admission for the first time on

18.01.2021. It appears that the impugned interim order dated

18.01.2021 was rendered in the said writ petition on that day itself,

whereby it has been, inter alia, ordered that the termination of the

writ petitioner as per the impugned Ext.P10 dated 14.01.2021 shall be

kept in abeyance and that it was further made clear that the writ

petitioner shall write the examination which is liable to be conducted

in Kerala pursuant to Ext.P9 judgment. One of the various complaints

raised by Sri S.Easwaran, learned Standing Counsel appearing

for the LIC is that such an interim order should not have been passed

at the initial stage and the request of the respondents in the

writ petition for time to submit their versions in the matter should

have been granted. Further that, it was not right and proper on the

part of the learned Single Judge to have issued a direction as if the

writ petitioner is given the right to appear in the examination which is

liable to be conducted in Kerala pursuant to Ext.P9 judgment at the

admission stage itself and more so particularly, when Exts.P8 and P9

directions issued by this Court are only in relation to the petitioners in

W.P.(C)No.26033 of 2020. Further, various submissions are also

made by the learned Standing Counsel for the LIC that the other

direction to keep in abeyance the impugned Ext.P10 termination

order is also not right and proper and that such an order of

termination should not have been disturbed by way of interlocutory

direction, etc.

7. We have heard both sides in extenso. One of the

submissions made by Sri Kaleeswaram Raj, learned counsel appearing

for the writ petitioner was to the effect that the writ petitioner was

acting bonafide all throughout and that immediately after receipt of

Ext.P5 intimation dated 6.11.2020 and Ext.P7 hall ticket notifying

about the conduct of the examination in Chennai on 29.11.2020, he

had with all due diligence proceeded on leave as evident from

Annexure A1 and gone to Chennai to attend the examination, which

was then scheduled on 29.11.2020. In the meanwhile, he had come to

know that this Court had issued directions as per Ext.P8 about

conduct of the online examination within the State of Kerala and that

since he is also working in LIC within the State of Kerala he bonafide

thought that he would get the benefit of the said directions issued by

this Court and therefore felt that as the very scheme of the

examination is under challenge and that the LIC themselves will be

conducting the online examination in the State of Kerala and in view

of the various difficulties and hardships that he faced in Chennai on

account of Covid-19 pandemic issues, he had not appeared in the said

examination which was actually conducted in Chennai on 29.11.2020

with the clear intention to immediately return back to Kerala so as to

appear in the online examination that would be conducted by the LIC

for the candidates in Kerala subsequently.

8. After hearing both sides, there may not be any dispute that

the directions issued by the learned Single Judge in Ext.P8 interim

order dated 26.11.2020 in W.P.(C)No.26033 of 2020 as well as the

further directions issued by the Division Bench of this Court in Ext.P9

judgment dated 18.12.2020 in W.A.No.1715 of 2020 may be only in

relation to the 41 petitioners in W.P.(C)No.26033 of 2020. Therefore,

the issue as to whether the petitioner has got the right to appear in the

online examination which is to be conducted by the LIC within the

State of Kerala is a matter that should be considered and adjudicated

in the main matter in the present W.P.(C)No.1286 of 2021. After

hearing both sides, we feel that the learned Single Judge may not have

intended to confer a right to the writ petitioner to necessarily appear

in the examination by the said observations in the impugned interim

order dated 18.01.2021, and that, all that would have been intended

must be that the petitioner should be aware about the crucial aspect

that the interim order to keep in abeyance Ext.P10 termination order

will be subject to his participation in the examination. Be that as it

may, in view of the above said aspect, we are inclined to take the view

that the said issue as to whether the writ petitioner has right to appear

in the said examination is a crucial aspect that should be adjudicated

and decided in the main matter in W.P.(C)No.1286 of 2021. This is all

the more so, as there is no plea in the interim relief sought in this

W.P.(C) that the petitioner should be permitted to appear in the

online examination to be held in Kerala.

9. The other directions issued by the learned Single Judge in

the impugned order directing to keep in abeyance the impugned

Ext.P10 termination order dated 14.01.2021, cannot be said to be

perverse or arbitrary. True, it may be that some breathing time

should have been given to the learned Standing Counsel for the LIC to

get instructions and to file statement in the matter, so that the interim

order is passed after hearing both sides after granting reasonable

opportunity to both sides to give their respective versions. However,

it has to be borne in mind that condition No.8 of Ext.P5 is to the effect

that "such of those petitioners who do not apply or are not successful

in the limited examination shall cease to be in the employment of the

Life Insurance Corporation of India." In the instant case, the writ

petitioner has got a case that he may not come within the first limb of

the said clause inasmuch as he has duly applied to appear in the said

examination. Further, since the petitioner is of the stand that he did

not appear in the examination conducted in Chennai on 29.11.2020 as

he could appear in the online examination conducted in Kerala and

that therefore the petitioner would contend that the stage as to

whether or not he has become successful in the examination which is

yet to be conducted has not arisen and therefore the necessary

contingency for invoking condition No.8 of Ext.P5 has not arisen in

the instant case. We are dealing with this issue only to appreciate the

nature of the interlocutory direction issued by the learned Single

Judge as per the impugned order rendered on 18.01.2021. The

petitioner has raised such a lis in the present writ proceedings and the

view taken by the learned Single Judge is on the premise that the

subject matter of the lis may be preserved, pending the immediate

disposal of the main matter in the writ petition. Such an approach

taken by the learned Single Judge cannot be said to be perverse or per

se illegal, going by the peculiar nature of the facts circumstances of

the case. Moreover, this is not a case relating to an order of dismissal,

removal or such other major penalty order which in the ordinary

course of events will not be considered for stay at the interlocutory

stage in any writ litigative proceedings. The whole basis for the

impugned Ext.P10 termination order dated 14.01.2021 is that the writ

petitioner has not participated in the examination which was

conducted in Chennai, on 29.11.2020. In view of the aforesaid

peculiar facts and circumstances, it cannot be said that the discretion

exercised by the learned Single Judge is thoroughly perverse or illegal.

10. Moreover, we suggest both sides that the main matter in

the writ petition should be heard and decided without further delay.

We are told that W.P.(C)No.26033 of 2020 is sought to be listed for

final disposal before the learned Single Bench concerned within a

week or so. Hence we order that the Registry will list the present

W.P.(C)No.1286 of 2021 along with W.P.(C)No.26033 of 2020 before

the hearing court concerned within a week or so, so that the main

matter in these writ proceedings could be heard and finally disposed

of within two weeks or so. We would request the learned Single Judge

to ensure the facilitation of the early final disposal of these writ

petitions. In view of the directions issued by the Division Bench of

this Court as per Ext.P9, the online examination can now be

conducted in Kerala only after the final disposal of the writ petition.

Therefore, the indefinite postponement of the examination may not

be in the interest of both sides and hence the main matter in the writ

proceedings requires expeditious final disposal. Taking note of these

aspects, it is ordered as follows:

(i) The interim direction to keep in abeyance the impugned Ext.P10 termination order dated 14.01.2021 will be in force for a period of one month from the date of receipt of certified copy of this judgment by the appellants. This interim direction will be subject to further orders as well as the final result in W.P.(C)No.1286 of 2021.

(ii) The further interim direction issued as per the impugned interim order dated 18.01.2021, as if the petitioner shall have the right to participate in the online examination to be conducted in the State of Kerala will

stand vacated. The issue as to whether the petitioner has the right to appear in the said online examination in Kerala should be adjudicated in the final disposal of the main matter in W.P.(C)No.1286 of 2021.

(iii) The learned Single Judge is requested to ensure the early final disposal of W.P.(C)No.1286 of 2021 along with W.P.(C)No.26033 of 2020 without much delay, preferably within two weeks or so.

(iv) If there is any unforeseen reasons causing delay for final disposal of the writ petitions, the learned Single Judge may consider the issue relating to extension of the interim direction. We hope and trust that the said contingency can certainly be avoided, if the main matter in these proceedings are finally disposed of within the aforesaid time line suggested by us.

(v) The direction issued by the learned Single Judge in the impugned interim order dated 18.01.2021 rendered in W.P.(C)No.1286 of 2021 will stand modified as above.

9. Before parting with this case, it is also pertinent to

mention that when the matter came up for consideration before us on

20.01.2021, the learned Standing Counsel for the appellant LIC had

pressed for an interim stay of the impugned interim order and after

hearing both sides, we suggested to both sides that the writ petitioner

may not press for contempt proceedings for enforcement of the

impugned interim order and also may not attend the office for the

time being till the disposal of this writ appeal. We also then indicated

the understanding we arrived at by that time is that, in case the

interim direction to keep in abeyance the impugned Ext.P10

termination order is not interfered with by us in this appellate

proceedings, then the appellant LIC should treat the writ petitioner

was on duty after he had reported for duty in pursuance of the

impugned interim order dated 18.01.2021, for pay and allowances and

all such other aspects.

10. We are now told that after the above said oral observations

made by us, the writ petitioner has not pressed for contempt

proceedings and also has not reported for duty in deference to the

observations made by us. Since we have not interfered with the

direction to keep in abeyance Ext.P10 termination order, it is ordered

that the appellant LIC will ensure that the writ petitioner should be

treated as if he was on duty since the date he reported for duty in

pursuance of the impugned interim order dated 18.01.2021 for the

purpose of pay, allowances, etc. so that there are no further issues on

those matters. This we are so ordering, as the writ petitioner has

shown deference in compliance with our oral request made to him,

taking into account the submissions of the learned Standing Counsel

for the LIC. We make it clear that none of our observations

hereinabove should be even remotely treated as an expression of

opinion on our part regarding the merits of the main controversy,

which will fall exclusively within the domain and province of the

learned Single Judge in the determination of the issues in the writ

proceedings.

With these observations and directions the above writ appeal

will stand disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/--

T.R. RAVI, JUDGE

dsn

APPENDIX PETITIONER'S ANNEXURES:

   ANNEXURE A-1:     LEAVE APPLICATION DT.20.11.2020