Abdul Hafeez vs The Life Insurance Corporation Of India
2023 Latest Caselaw 22171 MP

Madhya Pradesh High Court

Abdul Hafeez vs The Life Insurance Corporation Of India on 22 December, 2023

                                                              1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                       WP No. 29391 of 2023
                             (ABDUL HAFEEZ AND OTHERS Vs THE LIFE INSURANCE CORPORATION OF INDIA AND OTHERS)

                           Dated : 22-12-2023
                                 Shri K.C. Ghildiyal - Senior Advocate with Shri Karnik Singh -

                           Advocate for the petitioners.
                                 Shri N.P.S. Ruprah - Advocate for the respondents/caveator.

Learned counsel for the petitioners contends that in the present writ petition, the petitioners have challenged the notice inviting tender dated

06.11.2023 issued by the respondent No.3, whereby the Bids have been invited to provide 82 unskilled/Peons/Attendants through outsourcing agency under Shahdol Division. Petitioners are working since long. The respondents had given an undertaking before the Hon'ble Apex Court to regularize the temporary employees working with the respondent No.1/ Corporation who had completed more than five years of service in the Corporation. The scheme of regularization was placed before the Hon'ble Apex Court in the form of affidavit in Appeal (C) No.953-968/2005. Subsequent to passing an order dated 18.01.2011 by the Hon'ble Apex Court, a scheme was issued on 20.05.2011.

2. Learned counsel for the petitioners submitted that the petitioners had submitted their application form along with documents, but the respondents did not consider their candidatures which ultimately led to filing of W.P. No.11966/2011 before this Court. The said writ petition was disposed of vide order dated 09.08.2021 with a direction to consider the case of the petitioners within three months. The aforesaid order dated 09.08.2021 was challenged by the respondents/Corporation in W.A. No.1094/2021, which was dismissed by the Division Bench on 12.11.2021 with a direction to comply with the order of

learned Single Judge within six months from the date of order. Owing to non- compliance of the order of the learned Single Bench and the Division Bench, a contempt petition i.e. Contempt Petition No.1260/2022 came to be filed. The respondents sought six months time to comply with the order. The Court granted three months time vide order dated 09.11.2023 to file additional compliance report. Now the contempt case is fixed for 26.02.2024. Learned counsel for the petitioners submitted that on one hand respondent Corporation sought time to file additional compliance report and at the same time, respondent Corporation is heading towards filling the post through outsourcing agency.

3. With reference to the pleadings, learned counsel for the petitioners submitted that the petitioners are working with the respondents for the last 10 to 20 years and they are fully eligible for regularization as per the scheme framed by the respondent No.1. Prior to the year 2011, the payments to the petitioners were made in cash and those documents are available with the respondents only. However, after 2011, the payments were made directly through the Bank account. In order to deprive the petitioners their legitimate claim based on total length of service, the respondents have resorted to unethical practice by changing the name of the employees in every two months on the pay bills, however, the payment was released to the same person, but with different name in order to hide the actual length of service of the employees. To that extent pleadings have been made in para No.5.14 of the petition and according to learned counsel for the petitioners there is no specific denial to the aforesaid pleadings. In the prayer clause, the petitioners have challenged the impugned order dated 06.11.2023 passed by the respondent No.3 and also the order

dated 11.05.2022 (Annexure P/7), vide which their prayer for regularization has been rejected by the respondents on the premise that on 18.01.2011 i.e. the cut off date, the petitioners had no requisite period of five years of service. Learned counsel for the petitioners placed reliance upon 2022 Live Law (SC) 406, Manish Gupta and another vs. President, Jan Bhagidari Samiti and others, the order dated 04.04.2022 passed by the Gujrat High Court in case titled Rajendra Arvindbhai Patel vs. State of Gujrat, the order dated 27.03.2023 passed by the Allahabad High Court in case titled Kalamuddin and 186 others vs. State of U.P. and 5 others , 2003 (10) SCC 284 in case titled Commissioner, Kendriya Vidyalaya Sanghthan and others vs. Anil Kumar Singh and others and 2007 (13) SCC 293 in case titled Soni Dineshbhai Manilal and others vs. Jagjivan Mulchand Chokshi, and contented that adhoc employee cannot be replaced by another set of adhoc employee. Such employees can only be replaced by other candidates who have been appointed regularly by the recruiting agency by adopting regular procedure. Services of contractual employees cannot be replaced by another set of contractual employees until regular recruitments are made to those posts through the recruiting agency after following proper procedure.

4. Per contra, learned counsel for the respondents vehemently opposed the prayer of the petitioners on the premise that in case of M.P. Life Insurance

Corporation of India, Indore and Bhopal similar issue arose and this Court in W.P. No. 17420/2022 has considered the issue of regularization and plea of outsourcing the services of the petitioners therein. In the aforesaid judgment, the reliance was placed on Hariom and others vs. State of M.P. and others decided on 20.08.2020 in W.P. No.11482/2020 (S) by the Gwalior Bench in which following features have been noticed:

"The petitioners after having applied for their appointment on contractual basis, cannot claim the benefit of legitimate expectation on the ground that they have worked for a long period, therefore, they have acquired the right to continue to work under the National Health Mission only. The petitioners do not have a right of regularization. The Petitioners could not point out any Constitutional or Statutory right to continue to work under the National Health Mission.

It is submitted by the Counsel for the petitioners, that this Court in W.P. No. 5697 of 2017 passed on 1-5-2018 had directed the respondents to consider the case of the petitioners as per the policy dated 1-4-2015, but the respondents, instead of complying the said order, has decided to outsource the services of the support staff, and thus, in the light of the aforesaid order, the decision of the respondents is bad in law.

Considered the submissions made by the Counsel for the petitioners.

From para 2 of order dated 1-5-2018 passed in W.P. No. 5697 of 2017, it is clear that the respondents had decided to outsource the services of class III and IV employees for better management of health services at every District and therefore, it was decided to transfer the existing employees to the Rogi Kalyan Samiti. Thus it is clear that the respondents did not decide to stop renewing the contractual employment of the support staff, but they had decided to transfer the contract employees to Rogi Kalyan Samiti, therefore, the petitioners had a right to submit that they donot want to work under Rogi Kalyan Samiti. However, in the present case, now the respondent no.2 has decided to outsource the employment of support staff through private agencies. Once, the respondents have decided not to renew any contractual employment and has decided that now onwards they would employ the support staff through outsourced agency, then the petitioner could not point out that how such a decision of the respondents is violative of Constitutional or Statutory rights of the petitioners.

Further, it is the case of the petitioners, that the Ministry of Health and Family Welfare, Govt. of India has taken a decision to outsource the employment of support staff and accordingly, has also allocated the fund of Rs. 2520.00 lacs, then this Court cannot look into the decision of the Ministry of Health and Family Welfare, Govt. of India for the simple reason, that neither the Union of India through Ministry of Health and Family Welfare, has been made a party to the petition, nor the decision of the Govt. Of India has been put to challenge. Further, in

absence of any right, the petitioners also cannot dictate that the respondent no.2 must employ the support staff in any particular manner.

Further, as per the provisions of Section 4 of M.P. Contractual Appointment of Civil Post Rules, 2017 (In short Rules, 2017), it is clear that a contractual appointment can be made for a period of one year subject to further renewal however, in view of Section 11 (1) of Rules, 2017, the maximum term of contractual appointment would be 5 years only.

Thus, the petitioners cannot claim that once they have been given appointment on contractual basis for a period of one year and the said contractual appointment was renewed either by written order or by verbal order, therefore, they are entitled to continue in the said capacity, till they attain the age of superannuation. Further, the respondents have taken care of the interest of the existing support staff and therefore, in the impugned order dated 13-8-2019 (Annexure P/3), it has been directed that preference would be given to the existing employees.

So far as the interim orders passed in other cases is concerned, the Counsel for the petitioners could not point out that the interim order passed in another case has binding force as a precedent.

Accordingly, this Court is of the considered opinion, that since, the petitioners have failed to establish any right to either continue to work on contractual basis or for regularization, therefore, it is incorrect to say that by taking a decision to outsource the employment of support staff, the respondent no.2 has changed the service conditions of the petitioners. Ex Consequenti, the petition fails and is hereby Dismissed."

5. In nutshell, it was observed in the aforesaid case that the claim of the members of the Union for regularization of their services has already been rejected. It is not the case where the respondents are substituting the members of the Union by similar employees, but now the employer is being changed and it has been decided that the services of the Sweepers etc., shall be outsourced. The case being squarely covered by the case of Hariom (supra) was dismissed vide order dated 17.08.2023. In addition to the aforesaid, learned counsel for the respondents submitted that the aforesaid decision passed in

W.P. No.17420/2022 would operate as resjudicata. In view of explanation VI attached to Section 11 of CPC, where persons litigate bonafidely in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such rights shall, for the purposes of the aforesaid Section be deemed to claim under the person so litigating. Learned counsel for the respondents further submitted that against the rejection of regularization against many employees, their writ petitions are pending i.e. W.P. Nos. 12340/2023, 18759/2022, 18762/2022, 15258/2022, 20700/2022, 20680/2022 and W.P. No.18996/2022. The order dated 17.08.2023 passed in W.P. No.17420/2022 has also been assailed by the employees in W.A. No.1452/2023 which is also pending. No interim protection has been granted in any of the aforesaid cases. Learned counsel for the respondents further submitted that the policy was framed as 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 eligibility qualification and age as prescribed at the relevant

time of their entry into LIC of India for that the LIC of India was to hold a limited written examination which will be in the vernacular language with a limited syllabus. The temporary employees who do not apply and not successful shall cease to be in the employment. It was clarified that those temporary employees, who are not governed under these submissions shall also cease to be in the employment.

6 . Learned counsel for the petitioners while refuting the aforesaid submissions of learned counsel for the respondents submitted that since the candidatures of the petitioners have been rejected, therefore, there is no question of applying and remaining unsuccessful so as to attract ceasation of their employment. Learned counsel for the petitioners further submitted that the

prayers involved in the aforesaid W.P. No.17420/2022 and the present writ petition are entirely different. Petitioners are not the members of M.P. Life Insurance Corporation of India Karmchari Sangh (INTUC), Indore, who had filed W.P. No.17420/2022. The prayer made in the said writ petition was distinct as the petitioners therein did not claim permanent status and NIT of 2023 was also not part of the said writ petition. The petitioners in that writ petition had abandoned their claim of regularization and the claim was only for grant of temporary status and grant of benefit of basic pay scale along with allowances payable to temporary employees. Learned counsel for the petitioners also submitted that it would be highly questionable as to how mamoth exercise has been done by the respondent Corporation in respect of only seven persons and qua other persons, the exercise is still in offing.

7. In view of the observation of the Hon'ble Apex Court in the order dated 18.01.2011 passed in Civil Appeal No. 953-968/2005, the rival contentions made by the learned counsel for the parties need to be gone into in detail. The contempt petition is statedly pending for 26.02.2024. It would be just and appropriate to adjourn this case for 26.02.2024 i.e. the date fixed in contempt petition.

In the meanwhile, it is directed that till the next date of hearing, the appointment of any outsourced employees if made in place of the petitioners shall be subject to the final decision of this writ petition.

The reply filed by the respondents is taken on record. The rejoinder, if any be filed by the next date of hearing.

Certified copy be given to the parties as per rules.

(RAJ MOHAN SINGH)

JUDGE b