G. Sudhakar and ors. Vs. L.i.C. of India, Divisional Office and ors. - Court Judgment

V.V.S. Rao, J.

1. The petitioners are the appellants. Aggrieved by the order of the learned single Judge dated 3-11-1998 in W.P.No. 23458 of 1998, they filed the present writ appeal. In the writ petition they prayed for a writ of mandamus directing the Life Insurance Corporation of India to absorb the petitioners on permanent basis. The learned single Judge relying on the judgments of the Supreme Court, dismissed the writ petition. The learned single Judge also did not feel compelled to give appropriate directions to Life Insurance Corporation of India to regularise the services of the qualified petitioners for appointment of the post, as requested by the learned Standing Counsel for the Corporation.

2. All the petitioners have been working in the category of sub-staff either as temporary employees or daily-wage employees for quite some time ranging from 5 to 12 years. They acquired sufficient experience in discharging the duties of sub-staff. According to them, they are qualified and suitable to hold the post in the category of sub-staff. Therefore, they approached this Court for appropriate reliefs as indicated above. After receiving the notice in the writ petition, the respondents filed a counter. The gravamen of the contentions in the counter-affidavit is that the judgments of the Supreme Court ordering regularisation of temporary/ad hoc employees are not applicable to the facts of this case and that the Life Insurance Corporation of India already framed scheme for absorption of ad hoc/temporary employees and the same was approved by the Hon'ble Supreme Court in order dated 23-10-1992 in Civil Appeals arising out of S.L.P. (C) Nos. 10393 to 10413/1992. It is further contended that earlier writ petitions filed by other temporary employees were dismissed following the order of Supreme Court dated 23-10-1992.

3. Before the learned single Judge, it was contended that the Life Insurance Corporation of India (Employment of Temporary Sub-staff) Instructions, 1993 governing the appointments in the category of sub-staff were not followed in appointing the petitioners and scores of other similarly situated employees, therefore they are not entitled for regularisation. While referring to a number of judgments of the Supreme Court, the learned single Judge placed reliance on the judgments of the Supreme Court in Ashwani Kumar v. State of Bihar, : (1997)IILLJ856SC P. Ravindran v. Union Territory of Pondicherry, : (1997)1SCC350 and E. Ramakrishnan v. State of Kerala, : (1997)ILLJ1215SC and held that to enable the High Court to grant a relief of regularisation, the initial appointment ought to have been against the existing vacancy and the recruitment ought to have been in accordance with the relevant recruitment rules. As both these conditions are absent in the present case, the learned single Judge declined the relief.

4. We have heard the learned Counsel for the appellants Ms. G. Sudha and the learned Senior Counsel for the respondents Sri J.V. Suryanarayana Rao.

5. The learned Counsel for the appellants invited our attention to paragraph 13 of Ashwani Kumar's case (1 supra) which is as follows:

'In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. First, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued to be employed for a long period of time with or without any artificial breaks and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the concerned employees can give their best by being assured security of tenure. But would require one pre-condition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the concerned incumbent. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for considerations, however competent the recruiting agency may be.'

6. The learned Counsel for the appellants also brought to our notice the judgment of the Supreme Court in Arun Kumar Rout v. State of Bihar, : AIR1998SC1477 . In the said judgment, the Hon'ble Supreme Court held that when question of regularisation comes up for consideration in cases of temporary or ad hoc appointments even made improperly if the incumbents had been allowed to continue for a long time because of the human problem involved in such continued service, the Court should view such cases with sympathy. Further, in P. Ravindran's case (2 supra) the Hon'ble Supreme Court held that in extraordinary cases appropriate directions to the authorities to frame a scheme for regularisation of Class III and Class IV employees would not be illegal.

7. The following principles would emerge from a perusal of the Judgments of the Supreme Court:

(1) If temporary/ad hoc employees were continued for a long period of time without any artificial break and their services are required by the institution, the employer may regularise the services keeping in view the substantial length of the continued service.

(2) Such regularisation is subject to the condition that the initial entry of temporary employee must be against a sanctioned vacancy.

(3) Even when there is some procedural irregularity committed by the competent authority while making recruitment, the cases are to be considered for regularisation. This can be done by waiving such irregularity in such initial appointment and irregular appointment may be regularised.

(4) In cases falling under 1 and 3 above, the initial entry must not be found to be totally illegal and/or in blatant disregard of all the rules and regulations governing the recruitment.

(5) If the temporary appointees were continued for undue length of time and have gained experience in the service, those cases for regularisation shall be viewed by the Court with sympathy.

(6) The Court is not without power to direct the Government or a public body to frame a scheme for regularisation for Class III and Class IV services in accordance with the scheme. This can be done in extraordinary cases.

8. Aware of the judgments of the Supreme Court the learned Senior Counsel for the Life Insurance Corporation of India has fairly and graciously agreed with the legal position and submitted that in view of the special circumstances that are obtaining in this case the Life Insurance Corporation may consider framing a scheme for regularisation as was done earlier. The fact that the petitioners are working for more than 10 years continuously cannot be ignored.

9. The Life Insurance Corporation is a Statutory body which employs large number of persons in various classes. Majority of the work force is in Class IV and then in Class III. It is they who keep the Insurance machinery to go on. A Public Sector Corporation which employs a large number of citizens, is expected to be a model employer. Payment of fair wages, providing employment security, health care and keeping employees in confort are the minimum things that are expected of a model employer. After Constitution (Forty second) Amendment Act, 1976, Article 43-A obligates the State to secure participation of workers in the management of undertakings, establishments or other organisations. Therefore, the 'labour' force is no more one of the four components of production. It is an inseparable part of the management itself. In the present case, the counter-affidavit nowhere says that the initial entry of all the appellants is totally illegal or irregular. The essence of counter is that in view of the law laid down by the apex Court, the appellants are not entitled for regularisation. We have considered this aspect with all seriousness it commands and demands. We are of the opinion that the initial recruitment of the appellants does not in any way fall within the mischief of two conditions as culled out by the learned single Judge which prohibit regularisation. The learned Senior Counsel for Life Insurance Corporation of India does not seriously dispute this.

10. It is well settled that an experienced employee is more valuable to the establishment than a well qualified new appointee. In view of this, the further submission of the learned Senior Counsel for Life Insurance Corporation that the regularisation of the appointments can be considered subject to their appearing a written test and interview cannot be accepted. Nonetheless, this Court appreciates the fair submission made by the learned Senior Counsel for the respondents that the appellants' cases will be considered in accordance with the scheme that may be framed by the Life Insurance Corporation of India.

11. Therefore, the writ appeal is disposed of with a direction to the respondents to frame a scheme for regularsisation of the appellants herein and regularise their services in accordance with such scheme. No costs.