Sonu Balmik vs Life Insurance Corporation Of ...
2021 Latest Caselaw 4078 MP

                                       1

            THE HIGH COURT OF MADHYA PRADESH

     WP No.6247/2018, W.P. No.11970/2011, W.P. No.10090.2011, W.P.
      No.12215/2011, W.P. No.12220/2011, W.P. No.12222/2011, W.P.
       No.8679/2014, W.P. No.11966/2011, W.P. No.10763/2017, WP
       No.9703/2018, WP No.1885/2018, W.P. No.12203/2017, W.P.
                No.21606/2017 and W.P. No.15154/2017

JABALPUR DATED : 09.08.2021

       Shri Vijay Tripathi, Shri T.K. Khadka and Shri Shiv Kumar Dubey,
learned counsel for the petitioners.
       Smt. Amrut Ruprah, learned counsel for the respondents.

Heard finally with consent.

2. This order will govern the disposal of WP No.6247/2018, W.P. No.11970/2011, W.P. No.10090.2011, W.P. No.12215/2011, W.P. No.12220/2011, W.P. No.12222/2011, W.P. No.8679/2014, W.P. No.11966/2011, W.P. No.10763/2017, WP No.9703/2018, WP No.1885/2018, W.P. No.12203/2017, W.P. No.21606/2017 and W.P. No.15154/2017 as it is jointly submitted by the learned counsel for the parties that these writ petitions involve similar issue.

3. It is pointed out by learned counsel for the parties that WP No.6247/2018, W.P. No.11970/2011, W.P. No.10090.2011, W.P. No.12215/2011, W.P. No.12220/2011, W.P. No.12222/2011, W.P. No.8679/2014, W.P. No.11966/2011 and W.P. No.10763/2017 relate to those petitioners who are appointed prior to cut off date of 18.01.2011 and it is further pointed out that WP No.9703/2018, WP No.1885/2018, W.P. No.12203/2017, W.P. No.21606/2017 and W.P. No.15154/2017 relate to those petitioners who are appointed after the cut off date of 18.01.2011.

4. In first set of petitions, the petitioners are claiming that on the cut off date of 18.01.2011 they had completed more than five years and they also fulfill the other conditions yet they were not permitted to participate in the regularisation process whereas in the second set of petitions the petitioners are claiming that they were appointed after 2011 and have subsequently completed five years of service, therefore, they are entitled to regularisation in service.

5. For convenience facts are noted from WP No.11966/2011 wherein the case of the petitioners is that they were appointed as Peon/Class IV employee in different branches of the respondent Life Insurance Corporation of India at different points of time and had completed more than 5 years on the cut off date. Annexure P/1 enclosed with the petition mentions the period since when the petitioners are working. Further case of the petitioners is that in pursuance to the order of the Supreme Court in Civil Appeal No(s).953-968/2005 (Life Insurance Corporation of India and another vs. D.V. Anil Kumar etc.), the respondent No.1 had issued instructions on 20th May, 2011 to all the Zonal Officers of LIC to invite applications from eligible temporary Class IV employees for their regular appointment. As per the said instructions, the application was to be submitted in the prescribed form and on the cut off date of 18.01.2011, the applicant ought to have completed 5 years apart from the other eligibility conditions prescribed therein. The petitioners have raised a grievance in the petition that the onus of submitting the proof of 5 years service was wrongly placed upon the petitioners whereas the details of employment are with the employer. The petitioner's grievance arose when they were not called to participate in the selection process though the other candidates were called. Hence, they had filed the present writ petition.

6. The respondents have filed their reply taking the stand that in pursuance to the order of the Hon'ble Supreme Court in Civil Appeal No.953-968/2005, a policy was formulated by the respondents vide Annexure R/2 dated 20th of May, 2011 prescribing for certain minimum requirement and the candidates were also required to submit the proof of temporary employment in the prescribed formate. Five years minimum working as on cut off date of 08.01.2014 was required. Alongwith the reply, the chart Annexure R/4 has been filed disclosing the reason for rejection of candidature and a plea has been raised that the candidature of the petitioners were considered and since deficiencies were found as either the documents were not complete or they did not fulfil the requisite criteria therefore the candidature was rejected.

7. The record reflects that considering the circumstances of the case this Court in WP No.11966/2011 vide interim order dated 14.09.2011 had directed that the selection made will be provisional subject to final decision of the writ petition and in WP No.15154/2017 by interim order dated 27.09.2017 had directed the parties to maintain status quo as it existed on that date and in WP No.10090/2011 vide order dated 24.06.2011 directed the respondents to permit the petitioner therein to take part in the selection process which was going to be held on 26.06.2011 and further directed them not to disclose the result of the said petitioners.

8. Learned counsel for the petitioners have submitted that though the petitioners fulfilled the requisite conditions of the policy which was framed for the regular appointment yet they have not been permitted to participate in the selection process. He has further submitted that the petitioners have duly completed five years on the cut off date of 18.01.2011 and they also possessed the requisite certificate by the competent authority and they are even working as on today but have been

wrongly been deprived the opportunity to participate in the selection process. They have placed reliance upon the order of the Allahabad High Court dated 23.01.2020 passed in Service Single No.811/2012 (Rakesh Yadav and 8 others vs. Chairman, Life Insurance Corporation of India). They have also submitted that even those candidates who have been appointed subsequent to 2011 have now completed five years of service, therefore, for them a fresh policy should be framed for regularisation and they should be protected till regular appointments are made and that one temporary employee should not be substituted with another.

9. Learned counsel for the respondents has opposed the petitions and has submitted that the petitioners did not furnish the requisite documents in respect of fulfilment of the eligibility condition specially the condition of completion of five years service on the cut off date, therefore, their candidature has rightly been rejected. In support of her submission, she has placed reliance upon the Annexure R/4 filed alongwith the reply in WP No.11966/2011 and has submitted that this chart contains due reason for rejection of candidature and in view of the order of the Supreme Court the petitioners have no right to claim any relief from this Court.

10. Having heard the learned counsel for the parties and the perusal of the record, it is noticed that issue of regularisation of such employees had come up before the Hon'ble Supreme Court in the case of D.V. Anil Kumar(supra) wherein a scheme was produced by the counsel for LIC containing One Time Measure for absorbing all the eligible Class IV employees as also the open market candidates who had taken the examination for recruitment as Class IV employees. The Hon'ble Supreme Court had disposed of the appeals by taking note of the terms of the scheme of absorption and issuing direction to the LIC to make absorption in terms of the scheme expeditiously. The Hon'ble Supreme

Court in the case of D.V. Anil Kumar etc.(supra) has passed the following order:

"Mr. Ravindra Sethi, learned senior counsel appearing for the Life Insurance Corporation of India has placed before us an affidavit dated 18th January, 2011, filed by Shri C.B. Paliwal, Secretary (Legal), LIC of India. In the said affidavit, it is stated that as a one time measure, appellant no.1 has formulated a Scheme whereunder all the eligible temporary class IV employees as also the open market candidates who had taken the examination for recruitment as Class IV employees in the year 1996, and are respondents in these cases shall be absorbed. The terms and conditions of the said scheme are enumerated in the affidavit and read as follows:-

"One time limited examination for those temporary persons who are working in LIC of India for more than five years and who had possessed minimum eligible qualification and age as prescribed at the relevant time of their entry into LIC of India would be considered. For this purpose, LIC of India will hold a limited written examination which will be in the vernacular language with a limited syllabus which will be announced in advance.

5. The successful short listed candidates shall be called for the interview. Such of those persons who are successful in the interview shall be initially appointed and posted anywhere in the respective zone.

6. Such of those temporary employees who do not apply and or not successful shall cease to be in the employment. It is clarified that those temporary persons who are not governed under these submissions, shall also cease to be in the employment.

7. Those who are recruited shall be governed by the rules as applicable to Class IV employees and they shall not be entitled to claim any other benefit regarding their past service rendered as temporary employees.

8. In so far as open market candidate who had appeared in the written test at the relevant time and who were successful in the same shall be called for interview along with temporary employees. Such of those persons who shall be successful in the interview shall be offered appointment and the conditions as applicable to temporary persons in so far as offer of appointment shall be applicable to the open market persons as well.

The above scheme for absorption is acceptable to learned counsel appearing for respondents.

In that view of the matter, these appeals are disposed of with the direction that the respondents shall be absorbed in terms of the afore- extracted policy as expeditiously as practicable and in any case not later than six months from today.

The original affidavit is also taken on record.

All the appeals are disposed of in the above terms with no order as to costs."

11. In terms of the scheme quoted in the above order, those temporary employees who did not apply or were not successful were to cease to be in the employment and those temporary persons who were not governed under the scheme were also to cease to be in the employment. After the aforesaid order of the Hon'ble Supreme Court, the detailed instructions/policy dated 20 th May, 2011 Annexure R/2 was issued inviting application by fixing the cut off date for completing five years of service as 18.01.2011. It is not in dispute that most of the petitioners had applied in pursuance to the said scheme. The Annexure R/4 reflects that the candidature of most of the petitioners was rejected on the ground that "proof of temporary employment not enclosed with application form".

12. Learned counsel for the petitioner in WP No.10763/2017 has referred to the certificate Annexure P/1 which mentions that on the cut off date of 18.01.2011 the petitioner had completed 5 years 8 months and 17 days. It is pointed that the similar certificates are possessed by some other petitioners also but no opportunity was given to those petitioners before issuing the list Annexure R/4 for removing the defficiency, therefore, these petitioners have been deprived of the opportunity to participate in the process of regular appointment though they are still continuing in service.

13. In the similar circumstances, Allahabad High Court in the case of Rakesh Yadav(supra) has directed the competent authority of the respondents to examine the case of each of the petitioner by observing as under:

"6. Upon consideration of arguments raised by learned counsel for parties and perusal of material available on record, it is apparent that Hon'ble the Supreme Court in its direction has not mentioned anywhere that services rendered by temporary Class IV employees were required to be continuous for period of five years. As such, rejection of petitioners' claim on that ground is clearly against the directions of Hon'ble the Supreme Court.

7. With regard to the documents submitted by petitioners being unverified, it is clear that the impugned order has placed the entire burden of proof upon the petitioners, although, documentation with regard to their services with the Corporation would also have been available with the Corporation itself, which does not appear to have been noticed while passing the impugned order. However, it is also a factual aspect that

documentation annexed to the present writ petition has been denied by opposite parties.

8. It is also pertinent that learned counsel for petitioners has relied upon an alleged meeting to have been held between officials of the Corporation and petitioners on 17th March 2012. Minutes of the said meeting indicating the names of petitioners has been brought on record with regard to which the Corporation has submitted that it is a fabricated document. However in supplementary counter affidavit dated 26th March 2014, the Corporation itself has submitted that aforesaid document has been stolen by petitioners from premises of the Corporation. The stand of Corporation as such appears to be contradictory with regard to the document. However this Court ordinarily does not enter into such disputed questions of fact in writ jurisdiction but it is clear that services of petitioners rendered for the Corporation could very well have been looked into or substantiated on the basis of documents available with the Corporation itself.

9. In view of aforesaid facts, the matter is remitted to opposite party no.2 i.e.The Zonal Manager, Life Insurance Corporation of India, Zonal Office, Kanpur who shall decide the individual cases of petitioners by reasoned and speaking order and after due verification of documents pertaining to services rendered by petitioners in employment of Corporation. The said authority may also look into the minutes of meeting dated 17th March 2012. The petitioners shall also be afforded an opportunity of hearing prior to passing of any order and would also be permitted to place documentation available with them in order to prove their employment in the Corporation.

10. Necessary orders with regard to aforesaid shall be passed by opposite party no.2 within a period of three months from the date a copy of this order is produced before the said authority.

11. In case the employment of petitioners with the Corporation for a period of five years is substantiated, their cases for absorption/regularization shall be considered in terms of the order of Hon'ble the Supreme Court. In such an event, orders pertaining to absorption/ regularization shall be passed within a further period of three months.

12. In terms of aforesaid, the writ petition stands disposed of."

14. In the above order, it has been noticed that burdon is placed upon the petitioners though the record is with the respondents. So far as the judgment of Indore Bench in the matter of Vijay Gawali vs. The Life Insurance Corporation of India in WP No.7020/2019 dated 20.08.2019 relied upon by counsel for the respondents is concerned, in that case, the issue considered was entirely different as the petitioners had raised the grievance that the examination was not conducted though they had applied and the Court had found that examination was infact conducted in

2011 and the candidature was rejected, therefore, the petitioners in that case had not approached the Court with clean hands as the factum of conducting the examination was suppressed. Learned counsel for the respondent has also relied upon order dated 06.08.2015 passed by Chhattisgarh High Court in W.P.(s) No.3305/2011 in the case of Prakash Chandra vs. LIC but in that case eloborate issues which are raised in the present petition were not raised, that apart it only has persuasive value.

14. The order of the Supreme Court passed in Civil Appeal Nos.953- 968/2005 is binding. The respondents are required to give fair opportunity to all the candidates to show that they fulfill the conditions mentioned in the said order. The petitioners also had a right to participate in the process if they fulfil all those conditions which are mentioend in the order dated 18.01.2011 passed in Civil Appeal Nos.953-968/2005. It is undisputed before this Court when certain defficiencies were found in the application forms of the petitioner vide Annexure R/4 then no opportunity was given to the petitioner to cure those defficiencies. It is really unfortunate that some of these petitioners have been deprived of the opportunity to participate in the process of regularisation only because the competent authority had not issued the requisite certificate in respect of completion of five years on the cut off date though they fulfill the said requisite condition. This Court is of the view that if the petitioners fulfil the conditions which are mentioned in the order of the Hon'ble Supreme Court in Civil Appeal Nos.953-968/2005 and for some reason they could not furnish the requisite certificate as the said certificate was to be obtained from the authorities of the respondent Corporation and they were facing difficulty in this regard then it would be very harsh to deprive them of opportunity to participate in the process of regularization/absorption in terms of the scheme without giving even an opportunity to remove the defficiency in the application and submit the requisite certificate. The factual position relating to their working for five

years on the cut off date of 18.01.2011 could have been verified by the respondents themselves.

15. In these circumstances, I am of the opinion that those who fulfil the requisite condition of working for 5 years on the cut off date of 18.01.2011 as also fulfil all other conditions of the scheme of regular apppointment Annexure R/2 and the conditions mentioned in the order of the Supreme Court, they should be given an opportunity to participate in the process.

16. Hence, the competent authority is directed to give an opportunity to these petitioners to furnish necessary certificate of working for 5 years on the cut off date of 18.01.2011 and also the necessary documents relating to fulfilment of other conditions and the concerned respondent is directed to scrutinize the candidature of each of the petitioner and if no defficiency is found then give them an opportunity to participate in the process of regularization/absorption as per the scheme already framed. Let the fresh process for these candidates be undertaken as per the scheme if required. Let this exercise be completed within a period of three months from the date of receipt of the certified copy of this order.

17. So far as those petitioners who are appointed after 2011, it is noticed that in terms of the order of the Hon'ble Supreme Court in Civil Appeal Nos.Civil Appeal Nos.953-968/2005 and the scheme Annexure R/2, the process was taken up as one time measure for those who were eligible under the scheme. In view of para 53 of the judgment of Supreme Court only matter of Secretary, State of Karnataka and others vs. Umadevi and others reported in (2006) 4 SCC 1 also such regularisation is required to be done as one time measure. Hence, it is not open to the petitioners to contend that there should be a fresh scheme for their regularisation. They do not have any right of consideration for

regular appointment under the existing scheme. It is settled that one temporary employee cannot be substituted with another, therefore if these petitioners are continuing then they cannot be substituted with another temporary employees.

18. The writ petitions are accordingly disposed of.

(PRAKASH SHRIVASTAVA) JUDGE YS

Digitally signed by YOGESH KUMAR SHRIVASTAVA Date: 2021.08.12 15:42:43 +05'30'