Terminated Full Time... v. Life Insurance Corpo...

Dr. Mukundakam Sharma, C.J:— Since the facts and the legal issues arising for consideration are similar in all these appeals, we propose to dispose of all these appeals by this common judgment and order.

2. The appellants herein were either badli/temporary or part time workmen employed in the establishment of Life Insurance Corporation. The Life Insurance Corporation for very many years was adopting a policy of appointing persons only on a temporary basis for a fixed period. Consequent thereto vacancies of the permanent nature could not be filled up. The Life Insurance Corporation has a Regulation called “Life Insurance Corporation of India (Staff) Regulations, 1960”. As to how posts are to be filled up and appointments are to be made have been prescribed in the said Regulation. Provision of direct recruitment and promotion and manner in which such recruitment is to be made both for Class III and Class IV is laid down in Regulation 5, 6 and 7. Regulation 8 on the other hand deals with the rules for recruitment of temporary staff when it provides that the officers mentioned in Regulation 8 have the jurisdiction to employ staff in Class III and IV on a temporary basis and sub-regulation (2) of Regulation 8 clearly makes it crystal clear that no person appointed under sub-regulation (1) shall only by reason of such appointment be entitled to absorption in the service of the Corporation or claim preference for recruitment to any post. There is also Instructions called “LIC Recruitment (of Class III and Class IV Staff) Instructions, 1993”. The said Instructions apply to all recruitments in Class III and Class IV posts and the mode and procedure for recruitment to the said post is laid down therein. It is also provided there that normal mode of recruitment for Class III post would be by inviting applications through advertisement in the local newspapers and from the Employment Exchanges and that the mode of recruitment for Class IV posts would be by inviting applications through Employment Exchanges only, but where the number of posts available in Class IV is large and it is felt that recruitment by open advertisement is necessary, the Managing Director, may, in such cases considering all the circumstances, permit a Division to resort to recruitment to posts in Class IV by open advertisement. The said provision also lays down that there shall be written test/trade test followed by interview. Nature of the pre-recruitment test and interview is provided for in paragraphs 9 and 10 of the aforesaid Instructions. There is another set of Instructions called “Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993”. The aforesaid Instructions regulate the process of employment of staff in Class III and Class IV on a temporary basis in the office of the Corporation. The aforesaid set of Instructions deal with employment on temporary basis in Class III and Class IV whether badli or temporary. Procedure for employment is provided for in paragraph V.

3. The appellants herein were all engaged pursuant to the provisions of the aforesaid Life Insurance Corporation of India (Employment of Temporary Staff) Instructions. It also provides that one temporary employee is not to be replaced by another temporary employee and that he must be replaced by a regularly selected employee. Paragraph VII thereof deals with consideration of temporary employees for regular recruitment. Sub-regulation (2) of Regulation 8 of the (Staff) Regulations stipulates that no person appointed on temporary basis would only by reason of such appointment be entitled to absorption in the service of the Corporation or claim preference for recruitment to any post. It is also provided therein that no temporary employee would be considered for absorption, but he may compete along with other eligible candidates for recruitment on a regular basis under the Recruitment Instructions, as and when such recruitment takes place, provided he satisfies all the eligibility conditions then in force. In paragraph VIII it is provided that though a temporary employment can be made only against a vacancy, whether regular or ad hoc and since no temporary employee has a right to the post held by him, such temporary employment would automatically come to an end on the expiry of the period for which he was employed.

4. The status of the temporary employees i.e the persons, who are appointed on temporary basis for a fixed period under the provisions of the Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993, was the subject matter of grievances of many of such employees, who were appointed as temporary/badli/part time workmen. On 4th March, 1991, the Central Government referred a dispute to the Central Government Industrial Tribunal for adjudication in the following manner:

“Whether the action of the management of Life insurance Corporation of India in not absorbing Badli/temporary and part time workmen employed in the establishment of LIC after 20.5.85 is justified. If not, to what relief the workmen are entitled.”

5. The aforesaid reference was registered as ID No. 27 of 1991. The learned Tribunal after considering the records and the evidence adduced passed an award holding that the action of the Corporation denying absorption of temporary/badli/part time workmen employed after 20 May, 1985 was not justified and they should be given absorption in their jobs on the same terms and conditions as was done in the case of those workmen who were employed with effect from 1.1.1982 to 20.5.1985

6. Being aggrieved by the aforesaid award, a writ petition was filed by the Life Insurance Corporation of India in which the impugned judgment and order was passed. At this stage it will also be appropriate to mention that between 1989 and 1991 a large number of writ petitions relating to the status and conditions of service of temporary employees were filed in the Madras High Court by some Unions and individuals. A decision was rendered by a Full Bench of the Madras High Court on 27 July, 1992 and 4 August, 1992. By the aforesaid judgment and order, the batch of writ petitions filed by temporary/badli/part time Employees was dismissed. Feeling aggrieved by the aforesaid decision of the Madras High Court, a SLP being SLP No. 10393-10413/1992 was filed in the Supreme Court. The lead case in the Supreme Court was E. Prabhavathy v. Life Insurance Corporation of India. The Supreme Court disposed of the aforesaid case on 23rd October, 1992. The operative portion of the said order reads as follows:

“The Scheme contained in Clauses (a) to (d) of paragraph 1, which is as under, is approved subject to the postponement of the recruitment scheduled in November, 1992 by at least six weeks and the LIC will proceed to regularise the employees eligible under the Scheme.

a) All those temporary employees who have worked for 85 days in any two consecutive calender years with the Life Insurance Corporation between 20 May, 1985 uptil date and who conformed to the required eligibility criteria for regular recruitment on the dates of their initial temporary appointment will be permitted to compete for the next regular recruitment after the regular recruitment for these posts currently scheduled for November, 1992.

b) These candidates will be considered on their merits with all other candidates who may apply for such appointments, including those from the open market.

c) These candidates will be given an age relaxation for applying for regular recruitment provided that they were eligible on the date of their first temporary appointment for securing regular appointment with the Life Insurance Corporation.

d) If these candidates are otherwise eligible, they can apply for regular recruitment in the normal course.

7. This regularisation will, in the circumstances, be by selection for appointment. We make the above clauses of the Scheme a part of our order.”

8. During the pendency of the writ petition in this court, a writ petition was also filed in Andhra Pradesh High Court by some badli/temporary/part time employees praying for a writ of mandamus for absorption of temporary employees on a permanent basis. The writ petition was dismissed, but in appeal, a Division Bench of the High Court directed the Corporation to frame a scheme to regularise the services of temporary employees in accordance with the aforesaid scheme. The Corporation assailed the said decision in the Supreme Court. Finally the aforesaid case, namely, LIC of India v. G. Sudhakar (Civil Appeal No. 2104/2000) was disposed of on 22nd November, 2001. In the said decision rendered by the Supreme Court, reference was made to the submissions of the counsel appearing for the Corporation that the Supreme Court was in seisin of a similar problem and during the hearing of that appeal, a tentative scheme was produced before the Supreme Court and the Supreme Court incorporated the terms of said scheme as a part of the order and disposed of the appeal in terms of the said scheme on 23 October, 1992. The four clauses of the said scheme which formed part of the order were also extracted in the said order passed in the case of G. Sudhakar (supra). Reference was also made by the counsel for the

9. Corporation to the Instructions framed for the Life Insurance Corporation of India, which take care of such employees, who were continuing for fairly long time without being regularised.

10. Considering the facts and circumstances of the case, it was held by the Supreme Court that if the Corporation is evolving a scheme even assuming pertaining to the employees of Tamil Nadu Division, then the same could be equally applicable to all Divisions in the country. The said Scheme was, therefore, made applicable to all the employees including the employees of the Andhra Pradesh Division. Consequently, a direction was issued that the case of regularisation of the respondents in the said case could be considered in accordance with the Scheme which formed part of the order of the court dated 23 October, 1992, if not already considered.

11. Consequent to the aforesaid order, a Scheme prepared by the Corporation got the approval of the Supreme Court. The effective provisions of the said Scheme are as follows:

“a) All the temporary employees who have worked for 85 days in any two consecutive calender years with the Life Insurance Corporation between 20 May, 1985 uptill dated and who conformed to the required eligibility criteria for regular recruitment on the dates of their initial temporary appointment will be permitted to compete for the next regular recruitment to be made by the Life Insurance Corporation after the regular recruitment for these posts currently scheduled for November, 1992.

b) These candidates will be considered on their merits with all other candidates who may apply for such appointments, including those from the open market.

c) These candidates will be given an age relaxation for applying for regular recruitment provided that they were eligible on the date of their first temporary appointment for securing regular appointment with the Life Insurance Corporation.

d) If these candidates are otherwise eligible, they can apply for regular recruitment in the normal course.”

12. Consequent to the provisions of the Scheme, the Corporation took steps for regular recruitment and invited applications from all the temporary employees, who fulfilled the eligibility criteria. Some of the appellants herein appeared and failed in the said test, which was held, whereas some of them did not avail of the opportunity at all, as according to them they were required to be regularised in their services as they were appointed to the aforesaid posts in accordance with the procedure laid down for recruitment.

13. The learned Single Judge considered the decisions rendered by the Supreme Court in the case of Prabhavathy (supra) and G. Sudhakar (supra) and thereafter it was held that on plain reading of the relevant decisions of the Supreme Court, the term of reference before the learned Tribunal stood answered when the Supreme Court decided Prabhavathy, which again stood concluded by the decision of the Supreme Court in Sudhakar. Consequently, the award passed by the Central Government Industrial Tribunal was set aside. Hence these appeals were filed.

14. The counsel appearing on behalf of the appellants submitted before us that all of them were appointed in terms of the procedure prescribed and, therefore, their appointments were in accordance with the provisions of the Rules/Instructions and that being so and they having worked for a very long period of time, should have been absorbed and regularised against the posts in which they were working. In support of the said contention, the counsel has referred to the decision of the Supreme Court in Secretary, State of Karnataka v. Umadevi reported in (2006) 4 SCC 1. Reliance was placed by the counsel appearing for the appellants in paragraph 53 of the said judgment. Reliance was placed particularly on the following passage:

“One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State Of Mysore v. S.V Narayanappa AIR 1967 SC 1071, R.N Nanjundappa v. T. Thimmiah (1972) 1 SCC 409 and B.N Nagarajan v. State of Karnataka (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment.”

15. In paragraph 54 of the said judgment, a clarification was also issued in the following manner:

“It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.”

16. In order to appreciate the aforesaid contention of the counsel for the appellants, we have considered the entire records during the course of which we have also perused the appointment letters issued to the appellants. The appointment letters issued to the various employees specifically stipulated that their appointments are temporary appointments for a specified period and the said appointments would be terminated on the expiry of the period prescribed therein. It was also made clear that during the period of the aforesaid temporary appointment by the Corporation, none of the provisions of the Life Insurance Corporation of India (Staff) Regulations, 1960, which govern the process of appointment on regular basis would apply. It was also made clear that the employees would not be entitled to any benefit under the Life Insurance Corporation of India (Staff) Regulations, 1960 and that he was not entitled either to absorption in the service of the Corporation or any preference for recruitment to any post and that it was also made clear that he would be governed by Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993. The appellants with their eyes open accepted the aforesaid terms of appointment and, therefore, they cannot raise a claim for their regularisation or for automatic absorption. The Supreme Court in the decision of Prabhavathy (supra) and Sudhakar (supra) also declined regularisation and has directed for holding of selection for regular appointment. None of the appellants as on the date of filing the writ petitions or as of today is continuing in their respective works as their services stood terminated on expiry of the tenure of their temporary employment. They also continued to serve because of orders passed by various courts.

17. In our considered opinion, therefore, reliance on paragraph 53 by the appellants is misplaced. The ratio of the decision of the Supreme Court as laid down in paragraph 53 is not applicable to the facts of the present case under any circumstances. The said decision of Umadevi (supra) has extensively dealt with the rights and status of the temporary employees. In paragraph 45, the Supreme Court has held that while directing that appointments temporary or casual be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. The Supreme Court in that context held as follows:

“While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the facts that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain” not at arm's length” since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.”

18. In paragraph 47 again, it was held as follows:

“When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission.”

19. The Supreme Court has categorically laid down in the said decision that Merely because an employee had continued under cover of an order of the court, “litigious employment” or had been continuing beyond the term of the appointment, he would not be entitled to any right to be absorbed or made permanent in service merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant Rules.

20. In the present cases there is a specific rule, which provides as to how recruitment has to be made to a vacancy on regular basis. The appellants herein were recruited under different set of Instructions altogether, which were meant for engagement on temporary basis. The Regulation permits recruitment of temporary staff, which also clearly mandates that no such person, who is appointed as a temporary staff, would be entitled to absorption in the service of the Corporation or claim preference for recruitment to any post. Temporary servants appointed under the Regulations have to be considered for regular appointment for which also provision is made in the same set of Instructions called Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993. Therefore, none of the cases of the appellants would attract a direction to the respondent to absorb them automatically as a regular employee.

21. Counsel appearing for the respondent fairly stated before us that advertisements are being taken out by the respondent for regular appointment in terms of the provisions of the Life Insurance Corporation of India (Staff) Regulations, 1960 read with Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993. He has also stated that if the appellants apply for against such advertisement for regular appointment for three years thereafter, their cases would be considered along with other candidates but giving due weightage to their past services. It was also fairly submitted by the counsel for the respondent Corporation that the appellants shall also be given age relaxation for applying for regular recruitment.

22. In that view of the matter, while dismissing the appeals filed by the appellants, we issue directions in the following manner:

(a) for the next three years whenever an advertisement is made by the respondent corporation for filling up vacancies in Class III and Class IV posts, an opportunity shall be given to the appellants to submit their applications, which, if submitted, shall be considered along with all other candidates but giving age relaxation to the appellants and also giving due weightage to the past services rendered by the appellants.

23. In terms of the aforesaid order, the appeals stand disposed of.