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SCA/5700/2010 16/ 16 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5700 of 2010
=========================================================
JITENDRA
NARENDRABHAI SURTI - Petitioner(s)
Versus
UNION
OF INDIA & 3 - Respondent(s)
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Appearance :
MR
RAMNANDAN SINGH for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 06/05/2010
ORAL
ORDER1. The
petitioner has prayed to quash and set aside the public notice dated
26th November 2007 published by respondent Corporation in
local daily edition of Gujarat Samachar cancelling the select list
qua all those candidates who have not been offered appointment
including the petitioner.
2. The
respondent Corporation had invited applications for recruitment to
the post of Assistant in Class III category by issuing
advertisement in local daily Gujarat Samachar on 13th
October 1993. The petitioner has applied, and undergone the written
test and interview and his name reflected at serial no.191 (SC) in
the select list. In pursuance of the same, some of the candidates
were given appointment. According to the petitioner he was given
assurance that as and when the vacancy arises, the petitioner would
also be absorbed in service. In the meantime the candidates,
including the petitioner, who were in the select list were given
temporary appointments.
3. Since
there was no permanent appointment, the petitioner preferred Special
Civil Application No.20794 of 2005 and 13 other similar petitions
were also filed. In one of the petitions the respondent Corporation
filed an affidavit stating that all the petitioners therein would be
given permanent appointment as soon as the ban on recruitment was
lifted. Accordingly this court disposed of the said petitions by
common order dated 5th April 2006. According to the
petitioner his petition being Special Civil Application No.20794 of
2005 got separated and he was under the impression that the said
petition was disposed of along with other petitions. According to the
petitioner, as per Recruitment Instructions 1993, the panel list has
no validity period and therefore the said panel will operate till
last candidate is selected.
4. In
the year 2007 the respondent Corporation amended the Recruitment
Instructions 1993 for Class III and IV employees. According to new
rule, the panel will be having life of one year and it could be
extended for maximum period of two years. Under the circumstances a
group of petitions came to be filed before this Court against
scraping the panel. It appears that the petitioner was not a party to
the said petitions. This Court by common order dated 12th
May 2008 directed that those who had worked on temporary basis would
be given appointment order. Against the said order of learned Single
Judge, the respondent Corporation filed Letters Patent Appeals. The
Division Bench dismissed four appeals of the Corporation which were
filed against some of the candidates from Vadodara Division who were
senior to the candidates in whose favour undertaking was given in
2005 and appointments were made in 2007. However, the Division Bench
allowed all other appeals holding that it was against the public
policy.
5. The
respondent Corporation filed four Special Leave Petitions (Civil)
being SLP Nos.21215-21218 of2009 which came to be dismissed by order
dated 9th October 2009.
6. In
the meantime, those candidates against whom the respondent
Corporation succeeded before the Division Bench had approached the
Supreme Court by filing Special Leave Petition (Civil) Nos.11449 of
2009 and other allied matters. When those petitions came up for
hearing on 26th February 2010 the respondent Corporation
gave an undertaking that all the petitioners who had filed SLPs
before the Supreme Court and those who have worked on temporary
basis, would be given regular appointment as and when the vacancies
arise.
7. However,
the case of the petitioner has not been considered and therefore the
present petition has been filed.
8. Heard
the learned Advocate for the petitioner at length and perused the
relevant papers. At this stage it would be advantageous to look into
the orders passed by this Court. This Court in Special Civil
Application No.20783 of 2005 and allied matters passed the following
order on 5th April 2006:
There
was limited consensus to the extent that the judgment dated
19.11.2003 of the
Division Bench of Bombay High Court (AS) in Writ Petition No.1224 of
1999 and other allied Writ Petitions squarely covered the controversy
arising in the present set of petitions. It was submitted by the
respondents herein before the Division Bench of the Bombay High
Court that the list was open and the candidature of the petitioners
who were already in the employment of the Corporation would be
considered for regularization or permenancy as and when regular
vacancy arose and ban on recruitment was lifted. In view of that,
the Court saw no reason to issue any further direction since the
posts of the petitioners before that Court had been secured.
2. In
the facts of the present cases, by filing an affidavit of Mr Ashok P
Mohile, Divisional Manager (L & HPF), it is stated: As and
when the suspension is lifted and recruitment is permitted,
recruitment will be made from the panel-list in question; at present,
no appointment can be made from
the panel-list due to imposition of the ban. It is submitted that the
panel list in question remains valid as long as the same is
exhausted. Since the petitioners, are admittedly, on the
panel-list of selected candidates and direction to issue appointment
order is sought by the petitioners and the statement regarding ban at
present on the recruitment and to make appointment from the panel
list in question, as long as it is exhausted, is made, the petitions
are not pressed for any further relief, in view of the above stand of
the respondent. Accordingly, the petitions are disposed of as not
pressed for any further relief after the above statements being
recorded. Notice is discharged with no order as to costs.
9. The
aforesaid order was carried before Division Bench by way of filing
Letters Patent Appeal No.1003 of 2008 and allied matters. The said
LPAs came to be dismissed vide order dated , which reads as under:
This group of Appeals preferred under Clause 15 of the Letters Patent
arise from the common judgment and order dated 12th
May,2008 passed by the learned Single Judge in above Special Civil
Applications.
With the consent of the learned advocates, the Appeals are heard
today and are decided by this common judgment.
The
appellants in these Appeals are the Life Insurance Corporation of
India (hereinafter referred to as the Corporation ),
its officers and the Union of India. The respondents in these Appeals
are the candidates who were selected for appointment to the post of
Assistant in Class-III service in the Corporation.
The
Corporation, under its Circular dated 25th February,1993,
issued Recruitment (of Class-III and Class-IV Staff) Instructions
(hereinafter referred to as the aforesaid Instructions ). Under
the aforesaid Instructions, the offices were, inter alia, required to
draw a panel of selected candidates; the candidates would be offered
appointment against the immediately available permanent vacancies in
order of ranking; the remaining persons would be absorbed when the
vacancies arose. The offices were also instructed to utilise the
panelled candidates for appointment on temporary basis as and when
need arose. It further provided that the number of candidates to be
empanelled would be twice the number of permanent vacancies in the
year; in the subsequent year, the number of persons to be added in
the panel would be equal to the number of vacancies less the number
of persons remaining on the panel. Thus, under the said Instructions,
the panel of the candidates prepared after the date of the aforesaid
Instructions was intended to be perennial and all the candidates
empanelled were assured appointment in order of ranking on permanent
vacancies as and when available.
Pursuant to the said Instructions, recruitment procedure for
appointment to class-III posts was initiated in the year 1993. After
holding competitive test and oral interview, etc. a panel of
successful candidates was published on 7th August,1995.
The said panel was operated regularly until the year 1998-1999.
Since the year 1999, no regular appointment was made on any permanent
vacancy. However, some candidates were appointed on temporary basis
as and when required. The respondents before us are some of such
candidates who were empanelled on 7th August,1995; who are
not regularly appointed on permanent vacancies but, who were given
temporary appointment as and when required. Indisputably, the said
panel prepared on 7th August,1995 was not augmented in the
subsequent years by holding recruitment procedure every year, as
envisaged by the aforesaid Instructions. The said panel was not
operated since year the 1999 nor was it exhausted as provided in the
aforesaid Instructions. Instead, the Corporation decided to cancel
the said panel and gave public notice to that effect on 26th
November, 2007.
Feeling aggrieved, the respondents approached this Court by filing
above Special Civil Applications under Article 226 of the
Constitution. Pursuant to their empanelment in the panel of 7th
August,1995, the respondents claimed a right to regular appointment
on permanent vacancies. The respondents also claimed that they had
been given temporary appointments. Thus, master and servant
relationship between the Corporation and the respondents had come
into existence. The Corporation was, therefore, duty bound to offer
regular appointment to the respondents on permanent vacancies.
The
petitions were contested by the Corporation. The above referred facts
were not contested by the Corporation. The Corporation, however,
urged that on 23rd November,2007, the Corporation had
amended the aforesaid Instructions. The amended Clauses 5 and 15
provided, inter alia, that, Recruitment shall be only against
the vacancies in the sanctioned posts. It further provided
that, The validity period of the ranking list shall be maximum
of two years from the date of its publication or till the next
recruitment notification, whichever is earlier. Thus, by the
amended Instructions, the length of the panel has been curtailed to
the existing vacancies and the life of the panel has been curtailed
to a maximum period of two years from the date of its publication.
According to the Corporation, the said amended Instructions apply to
the existing panels also. In view of the said Instructions, the
existing panels, which were more than two years old including the
panel dated 7th August,1995, were scrapped. The
Corporation has also placed on record the details of the operation of
the panel dated 7th August,1995 in each of its six
Divisions. As stated in the counter-affidavit and accompanying
documents, the said panel was operated to make regular appointment on
permanent vacancies strictly in order of ranking. Though the
respondents and some others were appointed temporarily; on the date
of the cancellation of the panel none of the respondents was in the
service of the Corporation even on temporary basis. No candidate
appointed on temporary basis was regularized in service or was
appointed on permanent basis. However, in respect of Vadodara
Division, some of the temporarily appointed candidates had approached
this Court in the year 2005. In the said proceeding, the Corporation,
inconsonance with the aforesaid Instructions, made a statement on
oath that, The list is open and the candidature of the
petitioners, who are already in the employment of the Corporation
will be considered for regularization or permanency as and when
regular vacancy arises and ban on recruitment is lifted. It
was also submitted before the Court that the panel list in
question remains valid as long as the same is exhausted . Besides,
there were similar litigations pending before the Bombay High Court.
A similar statement was made before the Bombay High Court also.
It
is admitted before us that pursuant to the above referred statement
made before the Court, though on the date of statement no candidate
temporarily appointed was in service, the Corporation did offer
regular appointment to the writ petitioners before the Court on
permanent vacancies. Out of 10 such candidates, 7 candidates have
accepted the appointment and are working as such.
While deciding the writ petitions, the learned Single Judge relied
upon the above referred statement. It was also noted that some of the
candidates (the petitioners before the Court in 2005 proceedings) who
were temporarily appointed were given regular appointment on
permanent vacancies. The learned Single Judge treated the above
referred statement made by the Corporation as an undertaking to the
Court and observed that such undertaking gives rise to an
expectation which partakes the character of legitimate expectation.
The learned Single Judge also noted that those candidates who had
approached the Court earlier have been given permanent appointment
irrespective of their ranking in the panel, which created
discrimination. In view of the above referred observations made by
the learned Single Judge, the learned Single Judge allowed the writ
petitions in respect of the respondents, who were temporarily
appointed at one time or the other. The learned Single Judge has held
that, this kind of policy is required to be deprecated and
in the interest of justice all those who were ever appointed from the
panel on temporary basis at some point of time deserve to be
considered for appointment. To maintain fairness, the panelists, who
were ever appointed were required to be put at par with
those who were regularized notwithstanding their term being small.
In respect of the other panelists, the learned Single Judge observed
that, …This Court feels that it may not be necessary to
examine whether the amendment was retrospective or prospective.
Suffice it to say that those who were appointed for sometime will be
regularized and those who were never appointed even for short period
could be excluded. In above view of the matter the learned
Single Judge issued direction that, In view of the above,
this Court finally orders that all those who were ever taken in
service at any point of time before the list was scrapped will be
offered appointment by the respondents. This is because they have
undertaken before the Court to that effect. Those who were never
appointed for any period, will be left out. They form a distinct
group. Those, whose juniors have been appointed, will have to be
treated separately and offered appointment.
Feeling
aggrieved, the Corporation has preferred the present set of Appeals.
Learned advocate Mr.Clerk has appeared for the Corporation. He has
taken us through the record. He has submitted that the aforesaid
Instructions are issued under Regulation 4 of the Life Insurance
Corporation of India (Staff) Regulations,1960 framed under the power
conferred by Section 49 of the Life Insurance Corporation Act,1956.
He has submitted that the Hon’ble Supreme Court has, in the
matter of Life Insurance Corporation of India V/s. Mrs.Asha
Ramchandra Ambekar [AIR 1994 SC 2148], held that the
Instructions issued under the above referred Regulation 4 are
statutory in nature. He has submitted that the Instructions of the
year 2007 are statutory in nature and are binding to the Corporation.
By amendment made in the year 2007, the life of a panel prepared
under the aforesaid Instructions has been curtailed to a maximum
period of two years. Evidently, the said Instructions applied to all
existing panels which were older than two years. They were required
to be cancelled. Accordingly, the Corporation had decided to cancel
all the panels which were in operation for more than two years. The
decision was published by the impugned public notice dated 26th
November, 2007.
Learned
advocate Mr.Singh has appeared for the respondents in these Appeals.
He has contested the Appeals. Mr. Singh has supported the judgment of
the learned Single Judge. He has submitted that the amended
Instructions of the year 2007 do not make them applicable
retrospectively either by an express provision or by necessary
implication. He has submitted that the amended Instructions should
apply to the panels that may be prepared after the date of the
amended Instructions. The said amendment does not envisage
curtailment of the existing panels. He has further submitted that the
Corporation has admittedly made certain regular appointments by
operating the said panel. Some of the candidates, who were earlier
appointed on temporary service have been given regular appointments.
The respondents are the candidates who are similarly situated. Each
respondent had earlier been given temporary appointment. Some have
served for more than one year. Learned Single Judge has rightly held
that the Corporation had acted arbitrarily in making appointment on
regular basis. Learned Single Judge has rightly issued the impugned
directions to mitigate the discriminatory treatment meted out to the
respondents. In support of his arguments Mr. Singh has relied upon
the judgments delivered by the Hon’ble Supreme Court in the matters
of Gunaru Karan and others V/s.
Revenue Divisional Commissioner and others [1991
Supp (2) SCC 291] and of Union of
India and others V/s. Ishwar Singh Khatri and others [1992
Supp. (3) SCC 84].
We
are unable to agree with Mr. Singh. We are of the opinion that the
learned Single Judge has erred in granting relief to the respondents
which too creates discrimination amongst the persons empanelled on
the basis of temporary appointment offered to a few persons,
admittedly, not in the order of merit.
The
above referred amendment made in the year 2007 is, neither by express
terms nor by necessary implication, made retrospective or
retroactive. The intention to apply the said amendment to the
existing panels is not spelt out in the said amendment. But in our
view, operation of the panel/ select list/ merit list prepared for
appointment to public employment cannot be operated for inordinately
long period. Such operation itself is arbitrary and discriminatory.
That deprives the candidates who become eligible in later years from
competing for appointment on such posts. In the present case, the
recruitment procedure had commenced as far back as in the year 1993.
The panel/ select list/ merit list was prepared in the year 1995 and
was operated until the year 1999. Now, it is sought to be operated
after 13 years. The persons on the said panel have obviously become
age barred for public employment or for the appointment to the post
in question. The persons who have become eligible for public
employment since the year 1995 are deprived of the opportunity to
compete for appointment to such post. It is well settled rule of law
that the merit list prepared pursuant to a selection procedure for
appointment to public employment can be operated for the posts
advertised or at the most, if the administrative exigency requires,
for the posts which become vacant within six months or a year. That
is the view expressed by the Hon’ble Supreme Court in the matter of
State of Rajasthan and others V/s. Jagdish Chopra [2007(8) SCC
161] relied upon by Mr.Clerk.
In
no circumstance a panel or merit list prepared 13 years ago can be
permitted to be operated. More particularly, in the present case the
Corporation has on its own decided to cancel the existing panels/
merit lits. The decision of the Corporation in our view is in
consonance with the above referred public policy. No exception is
required to be made.
As
to the Vadodara Division, we have noticed that some seven persons
have been made permanent from the existing panel irrespective of
their rank. The principle of fair play requires that those persons
who were above such persons in the merit list / panel should get an
opportunity of appointment. Such persons need not be discriminated
only because they did not approach the Court of law or because they
did not secure temporary appointment during the operation of the
merit list.
We
are informed that the petitioners in above Special Civil Application
Nos.2681 of 2008; 2691 of 2008; 2695 of 2008; 2708 of 2008; 2709 of
2008, 2710 of 2008 and 4502 of 2008 are the persons empaneled on the
panel for Vadodara Division prepared on 7th August,1995.
They specifically challenged the appointment of the above referred
ten persons out of order merely because they had approached the Court
earlier in the year 2005. We do find justification in the grievance
made by those petitioners. As observed hereinabove, though the
Corporation was not directed to appoint any specific person and
though the Corporation was required to operate the panel in order of
merit, the Corporation offered employment to ten persons and that too
not in order of merit.
The
Corporation has filed further affidavit which indicates that in
general category, candidates between Serial No.162 and 179 were
offered appointment in the year 2007, ignoring claim of 12 persons,
who were above the persons appointed. Similarly in the category of
physically handicapped persons 2 candidates were left out and in the
category of scheduled tribe 1 person was left out. We, therefore,
hold that the above referred 12, 2 and 1 persons in the general,
physically handicapped and scheduled tribe categories respectively
are required to be offered regular employment in permanent vacancy.
We, therefore, direct accordingly. In absence of available vacancies
in Vadodara Division, they may be accommodated in any other Division
where vacancy is available. On their appointment, they will be
accorded seniority according to their rank in the panel. Except the
seniority, they will take other service benefits from the date of
their appointment.
Mr.Clerk
has submitted that of the above referred seven writ petitioners only
four in the general category fared above the ten persons who have
been offered regular appointment. The petitioners in Special Civil
Application Nos.2691 and 2695 of 2008 are schedule tribe candidates.
Both these petitioners fare below the schedule tribe candidates, who
have been offered regular appointment. Thus, in the submission of
Mr.Clerk, if any relief is required to be granted to the panelists in
Vadodara Division, it is the petitioner in Special Civil Application
Nos.2681, 2709, 2710 and 4502 of 2008, who is entitled to such
relief.
In
view of the above direction, Appeal Nos.1076 and 1080 to 1082 of 2008
are dismissed. The judgment and order passed by the learned Single
Judge in aforesaid four Special Civil Application Nos. 2681, 2709,
2710 and 4502 of 2008 is confirmed.
For
the reasons stated in this judgement, rest of the Appeals are
allowed. The judgement and order passed by the learned Single Judge
in corresponding writ petitions is quashed and set aside. The said
writ petitions stand dismissed.
Civil
Applications stand disposed of. The parties will bear their own cost.
10. Against
the aforesaid order Special Leave Petition Nos.21215-21218 of 2009
were filed wherein the Apex Court passed the following order:
Learned counsel appearing
for the Life Insurance Corporation of India submits that, as a
special case, without prejudice to the rights of the petitioner LIC,
such of the petitioners, who had worked on temporary basis would be
given regular appointments against regular vacancies, as and when
they arise. This shall not be treated as a precedent.
The Special Leave Petitions
are disposed of accordingly.
11. The
contention of the petitioner is that though the case of other
candidates were considered, his case was not considered and he is
entitled to get appointment on par with other candidates.
12. In
this connection it is required to be noted that along with others the
petitioner had also filed petition being Special Civil Application
No.20794 of 2005. Apparently the petitioner has not pursued the said
petition in spite of the fact that other cognate matters have been
disposed of. In fact the cognate matters were disposed of on the
basis of the undertaking given by the respondent Corporation that as
soon as the ban on recruitment was lifted, appointment would be made.
13. In
the meanwhile the Recruitment Instructions 1993 were amended and
according to new rule the panel list will be operated for a period of
one year and it could be extended for maximum period of two years.
The petitioner has not challenged these amended rules. In view of
scraping of the penal by amended rules, certain candidates approached
this Court and this Court held that those who were appointed for
some time will be regularized and those who were never appointed even
for short period could be excluded. Again the petitioner was not a
party to this group of petitions. The Corporation carried the matter
in appeal and the Division Bench dismissed four appeals of the
Corporation which were filed against some of the candidates from
Vadodara Division who were senior to the candidates in whose favour
undertaking was given in 2005 and appointments were made in 2007.
However, the Division Bench dismissed the other appeals holding that
such direction was against public policy. Therefore it was settled
that no appointment could be made except the candidates from Vadodara
Division. The Corporation filed Special Leave Petitions against the
order of Division Bench dismissing four appeals whichalso came to be
dismissed.
14. In
the meantime the candidates against whom the respondent Corporation
succeeded before the Division Bench had approached the Supreme Court
by filing Special Leave Petitions. In those petitions the respondent
Corporation had given undertaking that all the petitioners who had
filed SLPs before the Supreme Court and those who have worked on
temporary basis would be given regular appointment as and when
vacancies arise.
15. The
specific undertaking was that the petitioners who had worked on
temporary basis would be given regular appointments against regular
vacancies as and when they arise. Admittedly the petitioner was not
party to any of the aforesaid proceedings. It appears that the
petitioner was watching all the above proceedings and when the
undertaking was given by the Corporation before the Supreme Court in
respect of those petitioners, the petitioner has tried to take
advantage of the undertaking and earlier proceedings wherein the
petitioner was not a party at all. It is also required to be noted
that the petitioner has not pursued his own petition which is still
pending. The petitioner is not a vigilant litigant and therefore he
cannot claim any equity relief from this Court. Apart from that the
Hon’ble Supreme Court has made it very clear that the order dated
26th February 2010 shall not be treated as a precedent.
Therefore also the petitioner cannot claim any relief on the basis of
the said order. The present petition has been filed while the earlier
petition of the petitioner is still pending before this Court.
16. In
the premises aforesaid, I find that this petition is misconceived and
is accordingly rejected with costs quantified at Rs.2500/- which
shall be paid to Gujarat High Court Legal Aid Committee.
[K.S.Jhaveri,J.]
*Himansu
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