Orissa High Court

Bibhuti Bhusan Pati vs The Regional Manager (Personal & .... ... on 22 November, 2024

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

                                                              Signature Not Verified
                                                              Digitally Signed
                                                              Signed by: BHABAGRAHI JHANKAR
                                                              Designation: AR-CUM-SR. SECRETARY
                                                              Reason: Authentication
                                                              Location: ORISSA HIGH COURT, CUTTACK
                                                              Date: 27-Nov-2024 17:57:33



                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P.(C) No.17722 of 2011

       (In the matter of an application under Articles 226 and 227 of the
       Constitution of India, 1950).

       Bibhuti Bhusan Pati                         ....               Petitioner(s)

                                        -versus-

       The Regional Manager (Personal &            ....       Opposite Party (s)
       Industrial Relation) Life Insurance
       Corporation of India & Ors.


     Advocates appeared in the case through Hybrid Mode:

       For Petitioner(s)            :         Mr. Samir Kumar Mishra, Sr. Adv.
                                                                   Along with
                                                        Mr. P.S. Mohanty, Adv.


       For Opposite Party (s)       :                         Mr. Sonak Mishra
                                                           Mr. S. P. Panda, Adv.


                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI

                      DATE OF HEARING:-20.09.2024
                     DATE OF JUDGMENT:-22.11.2024
     Dr. S.K. Panigrahi, J.

1. In this Writ Petition, the petitioner seeks a directive from this Court to

issue a call letter for the interview for the position of Class-IV employee

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

and to regularize his service in the said role following the completion of

the selection process.

I.      FACTUAL MATRIX OF THE CASE:

 2.     The brief facts of the case are as follows:

(i)     The petitioner claims to have been working as a daily wager at the

Nayagarh Branch of LIC since 01.04.2004 and asserts his eligibility for

regularization under the LIC circular dated 20.05.2011, which was

issued pursuant to the judgment of the Supreme Court in D.V. Anil

Kumar and Ors. v. LIC of India1.

(ii) As per the said circular, a candidate must have worked for more than

five years as of 18.01.2011 to be eligible for regularization.

(iii) The petitioner submitted an application for the post on 24.05.2011, along

with relevant documents, including an experience certificate issued by

the Branch Manager, Nayagarh, certifying that he had been working

since 01.04.2004.

(iv) Upon scrutiny, LIC discovered discrepancies and clarified that the

petitioner had been receiving payments as a daily wager only since

29.12.2008, thereby disqualifying him under the eligibility criteria.

(v) The Branch Manager issued a revised clarification on 22.06.2011,

declaring the earlier experience certificate null and void. Consequently,

the petitioner was not called for the written test held on 26.06.2011.

(vi) Aggrieved by this action, the petitioner filed the present writ petition

seeking a directive from this Court to issue a call letter for the interview

2011 SCC OnLine SC 1602.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

for the post of Class-IV employee and to regularize his service in the

said post upon completion of the selection process.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

3. Learned counsel for the Petitioner earnestly made the following

submissions in support of his contentions:

(i) The petitioner submitted that the candidates with similar qualifications

and experience were called for the written test, while the petitioner was

excluded arbitrarily and without jurisdiction. This exclusion violates

principles of fairness and equal treatment under the law.

(ii) He further submits that he fulfils all eligibility criteria for the post, as

outlined in the LIC's circular and supported by his experience certificate

and other documents.

(iii) The petitioner contended that LIC's failure to call the petitioner for the

selection process contravenes the Supreme Court's judgment mandating

regularization of employees with over five years of service.

(iv) He further contended that his exclusion from the selection process

causes significant injury, economic distress, and the risk of job

termination, leading to potential starvation for his family.

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:

4. The Learned Counsel for the Opposite Parties earnestly made the

following submissions in support of his contentions:

(i) It is submitted that the petitioner's claim of working since 01.04.2004 is

untrue and the payments to him began only on 29.12.2008, making him

ineligible under the five-year service requirement as of 18.01.2011.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

(ii) He further submitted that the earlier experience certificate issued by the

Branch Manager was erroneous and based on oral statements. After

verification, it was deemed invalid through a clarification issued on

22.06.2011.

(iii) It is contended that the petitioner does not meet the continuous service

requirement, and his claim for regularization is contrary to the

principles laid down in the case of Secretary, State of Karnataka v.

Umadevi2.

(iv) He denied any discrimination or arbitrary action in the petitioner's case

and contended that all actions are in line with statutory requirements

and court orders. Accordingly, the writ petition is liable to be dismissed.

IV. COURT'S REASONING AND ANALYSIS:

5. Heard Learned Counsel for the parties and perused the documents

placed before this Court. At the outset, it is evident that the petitioner

submitted for the application for regularization in 2011, claiming that he

was appointed in 2004. Upon scrutiny and investigation by the

concerned authorities, it was concluded that the petitioner has been

receiving his payment since 2008 and the earlier experience certificate

issued was on the basis of the oral statements of the staff members.

Hence, the petitioner did not meet the mandate of 5 years of experience

required for regularization of employees.

6. It is a well-established principle that regularization cannot be granted

arbitrarily or in the absence of adherence to specific rules or regulations

governing such appointments. Any claim for regularization must align

2006 AIR SCW 1991.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

with the terms and conditions set out by the concerned authority and

adhere to statutory rules.

7. To this effect, the Supreme Court in the case of Indian Drugs and

Pharmaceuticals Ltd. v. Workmen3 examined the issue of regularisation

at length and observed in para 34 as under:

"Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan & others vs. State of Kerala & others 1996 (10) SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore vs. State of Maharashtra 1997(3) SCC 209, Union of India & others vs. Bishambar Dutt 1996 (11) SCC 341. The direction issued by the services tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time."

8. Furthermore, the decision to absorb an employee into a regular post is

fundamentally an administrative prerogative. When the competent

authorities, guided by the internal rules and regulations of the

organization, determine that such absorption is not viable, it is neither

appropriate nor within the purview of this Court to interfere in the

exercise of their discretion. This stance was reiterated by the Supreme

Court in the case of State of U.P. and Ors. v. U.P. Madhyamik Shiksha

Parishad4 wherein it held that:

(2007) 1 SCC 408.

1996 AIR 708.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

‚It is an administrative procedure that creation of a post is a condition for filling up the post on permanent basis. The exigencies of the administration and the need for the creation of number of posts are matters of executive policy by the appropriate government. It is stated in the Special Leave Petition filed in this court that during the examinations conducted by the Board, when the exigencies demand for doing the manual work like lifting of bundles, pasting of envelopes and shifting of answer books etc. the daily wagers are engaged and a sum of Rs.25/- per day was being paid as fixed by the dist. Magistrates of Allahabad under the Minimum Wages Act. Unless the posts are created, they are not entitled to be fitted into any regular post. The performance of the manual duty may be like the duty of regular class IV employees. However, they are not entitled for the payment of equal wages so long as there are no posts created in that behalf. We can understand that if there are vacant posts available in Class IV and they are filled up by appointing them to these posts on daily wages performing the same duties of regular employees, perhaps there may be justification for issuing directions for regularisation of their services according to rules and payment of the salary to the post to which they are fitted. But in view of the fact that no posts are created or existing, we cannot uphold the direction issued by the High Court to pay equal wages or to regularise their services."

9. Given the abovementioned judicial precedents and drawing parallels of

it with the current factual matrix, this Court observes that the

petitioner's claim does not satisfy the eligibility criteria outlined in the

LIC's circular/ particularly the requirement of five years of service as of

the cut-off date. The reliance on an invalidated experience certificate

cannot override documented evidence to the contrary.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

10. In light of the petitioner's inability to meet the prescribed eligibility

criteria/ this Court finds no basis to interfere with LIC's decision.

Regularizing the petitioner despite his ineligibility would set a

precedent contrary to the principles laid down in Umadevi (Supra) and