JUDGMENT
Amitava Lala, J.
1. Both the aforesaid appeals are arising out of an order passed by the learned Single Judge on 13th April, 2001 in Civil Misc. Writ Petition No. 19951 of 2000 (Kailash Nath and Ors. v. Chairman, (sic) Office Mumbai and Ors.). The order impugned is as follows:
This is a writ petition for quashing the notice for employment published by Life Insurance Corporation (LIC) for class IV post in its Divisional office at Varanasi and for a direction to regularise the petitioners in that office on the ground that they have been working temporarily in that office since 1985.
I have heard Sri BN Singh, counsel for the petitioner and Sri R.P. Goel assisted by Sri Manish Goel, counsel for LIC. According to the petitioner the LIC called for the names for temporary employment in class IV in its Divisional office in 1985 and the names of the petitioners were sponsored by employment exchange. They further states that select list was prepared and since 1985 they have been permitted to work 10-20 days in a month and since 19th September, 1997 they have been working continuously in the office. In view of this Sri Singh, counsel for the petitioner submitted that no fresh direct recruitment could be made and in fact they should be regularised in those post.
Sri Goel submitted that LIC is governed by Service Regulation and there is no provision to regularise the petitioner and direct recruitment should be made in accordance with regulation framed therein. Sri Goel states that in LIC regularisation has been made under paragraph 7 of Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993 issued under regulation 8 of the Regulation and have submitted that appointment could only be made in accordance with this regulation.
I have considered the aforesaid submission of the parties. Petitioners have stated necessary facts in paragraphs 3, 4, 5, 7, 8 and 9 of the writ petition. In paragraph 3 of the writ petition it has stated that LIC called for the name for temporary employment in the year 1985 and the names of the petitioners were sponsored by the employment exchange and they were selected in the year 1985. In paragraph 5 of the writ petition it has been stated that the petitioners were allowed to work from 10-20 days in every month. In paragraph 7 of the writ petition it has been stated that petitioner has been working continuously with effect from September, 1997. In paragraph 8 they have stated that they worked for more than 240 days every year. In paragraph 9 they have mentioned that there are number of vacancies in the office. These paragraphs have been replied in paragraphs 12, 14, 16, 17 and 18 of the counter affidavit. There is no specific denial of these paragraphs that the petitioners names were called from employment exchange and they have been engaged as temporary as class IV employees and have working during the period that they are entitled to the benefit of instruction issued by the LIC.
The case of the petitioners has not been considered. It would be appropriate to dispose of this writ petition at this stage with a direction to the respondent to consider the petitioners candidature along with the other candidates whether they have applied for not. While considering their candidature, LIC will relax qualification for their age and educational qualification etc. It is also relevant to say that they have worked for last 15 years. In case they have worked satisfactorily LIC may consider their case sympathetically. The result of the selection will be declared only after the case of the petitioners is considered.
With these observations the writ petition is disposed of.
When in one hand the writ petitioners filed the appeal, being Special Appeal No. (292) of 2001, by saying that instead of giving direction for consideration, the Court could have passed the appropriate order for regularisation of the service of the petitioners, on the other hand, the Life Insurance Corporation (hereinafter in short called as “LIC”) filed the appeal, being Special Appeal No. 590 of 2001, by saying that the authority being governed by the service regulations can not regularize the service of the petitioners without having any provision thereof, therefore, there is no scope of consideration.
2. Hence, two questions are passing through our minds. Firstly, having acceptance of service without regularisation for more than 240 days per year consecutively for about 15 years or more by the LIC from them, who were appointed through the employment exchange on preparation of select list, will lead to unfair labour practice or not. Secondly, whether by the process of regularisation or giving permanent shape of the service of the petitioners, regular process of giving service to others will be infringed.
3. According to us, a trend has been developed now-a-days to take a general defence against regularisation of service on the basis of the following Judgment without understanding the factual background therein. Therefore, we have to clarify at first what was factual background before the Supreme Court to deliver the Judgment as [Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors.]. Relevant factual position is as under:
The claim is essentially based on the fact that they have continued in employment or engaged in the work for a significant length of time, they are entitled to be absorbed in the posts in which they had worked in the department concerned or the authority concerned. There are also more ambitious claims that even it they were not working against a sanctioned post, even it they do not possess the requisite qualification, even it they were not appointed in terms of the procedure prescribed for appointment, and had only recently been engaged, they are entitled to continue and should be directed to be absorbed.
8. In Civil Appeals Nos. 3595-612 of 1999 the respondents therein who were temporarily engaged on daily wages in the Commercial Taxes Department in some of the districts of the State of Karnataka claim that they worked in the Department based on such engagement for more than 10 years and hence they are entitled to be made permanent employees of the Department, entitled to all the benefits of regular employees. They were engaged for the first time in the years 1985-86 and in the teeth of orders not to make such appointments issued on 3-7-1984. Though the Director of Commercial Taxes recommended that they be absorbed, the Government did not accede to that recommendation.
However, five Judges’ Bench of the Supreme Court made various distinguishing features of “litigious employment”. The cardinal principle of the Judgment is that merely because a temporary employee or a daily wage worker or casual continued for a time beyond the terms of his appointment, he would not be entitled to be absorbed in regular service or made permanent, 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. This question was thoroughly discussed in the said Judgment from the point of view of the regular appointees. The Supreme Court held that Equity to the persons, who are asking for regularisation, is running counter to the equity for the millions of this country seeking a fair opportunity of employment. Article 309 of the Constitution of India is specifying for recruitment and conditions of service of persons serving the Union or State. We have no quarrel with the proposition but we have to see relevancy of such r proposition in the facts and circumstances of the present case.
4. LIC is a statutory Corporation under Section 2(4) read with Section 3 of the Life Insurance Corporation Act, 1956. There is no dispute that the LIC is under absolute control and supervision of the Central Government. The Act provides rule making power under Section 48 therein. It has also power to make regulations under Section 49. Sub-section 2(b) of Section 49 provides method of recruitment of employees and agents of the LIC. Its own case is that the recruitment rules provided that the recruitment of staff shall be done on the divisional basis. Rules further provided about assessment of vacancies, calling applications through local newspapers and employment exchange (except when vacancies are short term then only through employment exchange). The LIC itself said that it was precluded from making regular recruitment in 1985 and 1987 due to court litigation, thereby it was necessitated to appoint temporary appointments. Therefore, three things are clear hereunder. Firstly, no back-door process was adopted in giving temporary appointments but through employment exchange and by making select list in 1985. Secondly, filling up vacancies through employment exchange is admittedly made only for short term, but allowed to continue for long term. Thirdly, when the LIC itself was facing problem to make regular appointment due to Court litigation/s, therefore, they bypassed the Court proceeding and temporary appointees were appointed and allowed to continue indefinitely like regular appointees without giving such status. It was held in Uma Devi (supra) itself that the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and filling up of those vacancies, based on a procedure. In the instant case, appointees were appointed through employment exchange and by preparation of select list against the vacancies. They were initially permitted to work for 10-20 days in a month and since 19th September, 1997 they have been working continuously in the office. No explanation is available tor tneir continuance tin date when the LIC has come with a positive assertion that the service of the temporary staffs can not be regularized. Learned Single Judge held that there is no specific denial with regard to the fact that the petitioners’ names were called from the employment exchange. They have been engaged temporarily as Class-IV. They have been working continuously during the period. They are entitled for regularisation. According to us, had the engagement of the temporary employees been done adopting a back-door process, the writ petition should have been thrown out immediately particularly in view of the ratio of Uma Devi (supra) but the situation is otherwise.
5. The Supreme Court categorically held that there may be cases where irregular appointments (not illegal appointments) 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 the Supreme Court in the cases referred in such Judgment and in the light of the Judgment i.e. Uma Devi (supra). In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Court or of tribunals. The process must be set in motion within six months from the date of that judgement. Regularisation, if any, already made but not sub judice, need not be reopened based on this judgement, but there should be no further bypassing of the constitutional requirement and regularisation or making permanent, those not duly appointed as per the constitutional scheme. In following the ratio of (B.N. Nagarajan v. State of Karnataka) it was held by the Supreme Court in Uma Devi (supra) that there should be distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised. Granting permanence of employment is a totally different concept and can not be equated with regularisation. The constitutional scheme of public employment in this country, and the executive, or for the matter in the Court, in appropriate cases, would have only the right to regularise an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed.
6. According to us, there is a big gap between an appointment following a back-door process and an appointment following due process of law. It is true. If the second method of appointment is adopted by an employer and allowed to continue indefinitely without regularisation then it will obviously lead to unfair labour practice. If the persons who were appointed although irregularly under the nomenclature temporary but following the due process of selection and can not get the benefit of regular employee even after rendering 15 years of services, the LIC being instrumentality of the Union is bound to consider merit of the individual cases. Despite existence of the ratio of Uma Devi (supra), in a case of daily wager of the concerned Forest Department a Division Bench of this Court in 2006 (2) ADJ 232 (All) (DB) (State of U.P. and Ors. v. Mata Deen) relying upon the Supreme Court Judgment reported in (2002) 2 UPLBEC 1595 (State of U.P. and Ors. v. Putti Lal) held that since the daily wager is working in the Forest Department being placed on the similar footing as it has been held in the case of Putti Lai (supra), the State is bound by the order of the Supreme Court and accordingly the appeal was dismissed by upholding the order of the learned Single Judge for the purpose of consideration of representation about the regularisation of service of the petitioner. The Supreme Court dismissed the appeal from such order in limine as reported in 2007 (7) ADJ 413 (SC) (State of U.P. and Ors. v. Mata Deen). Therefore, each and every case has to be guided by its own factual basis keeping on the back of the mind the general principle laid down by the Supreme Court in Uma Devi (supra). The case of the writ petitioners/appellants stands on a much better footing than the case of Mata Deen (supra). It is a clear case of temporary appointment following the procedure and continued for unlimited period without regularisation. Both permanent and temporary appointments are substantive appointments unlike ad hoc, badlis, officiating, part time appointments yet no regularisation has been made. Item No. 10 of Fifth Schedule under Section 2(ra) of the Industrial Disputes Act, 1947 under the heading “Unfair Labour Practice” clearly speaks to employ workmen as “badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen is one of the unfair labour practices. Section 25-T of the said Act clearly prohibits unfair labour practice. This principle is applicable wherever master-servant relationship f exists irrespective of applicability of the Industrial Disputes Act, 1947. There is to reason of saying so. In (M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilpatnam, A.P. and Anr.) the Supreme Court made a caution about applicability of the Act. The amendments introduced in Section 48 of the Corporation Act have clearly excluded the provisions of the Industrial Disputes Act so far as they are in conflict with the rules framed under Section 48(2)(cc). However, again the five Judges’ Bench of the Supreme Court in (Kishan Prakash Sharma and Ors. v. Union of India and Ors.) held that the exclusion of the Industrial Disputes Act does not affect the workmen’s right under Article 19(1)(c) of the Constitution or their collective right to bargaining. Hence, absolute exclusion of the cases of the appellants from the zone of consideration will be premium to illegality.
6.1 Against this background, it is necessary to see what is the meaning of “temporary”. As per Black’s Law Dictionary, Sixth Edition, temporary means, as under:
“Temporary.” That which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration. Opposite of permanent.
In Law Lexicon, 1997 Edition, meaning of “temporary” is as follows:
Temporary. Lasting or intended to last only for a time. “Temporary” means lasting for a time only; existing or continuing for a limited time; not of long duration; not permanent; transitory; changing; lasting for a short time.
Therefore, temporary lasts for limited period when permanent lasts for unlimited period. But when temporary lasts for unlimited period, it contradicts the province.
Pursuant to Clause (b) & (bb) of Sub-section 49 of the Act, 1956 the Life Insurance Corporation Of India (Staff) Regulations, 1960 was promulgated. Relevant provisions for temporary staff, probation and their termination are given hereunder:
Temporary Staff:
8. (1) Notwithstanding anything contained in these Regulations, a Managing Director, Executive Director (Personnel), a Zonal Manager or a Divisional Manager may employ staff in Classes III and IV on a temporary basis subject to such general or special directions as may be issued by the Chairman from time to time.
(2) 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.
Therefore, respective merit will be considered.
Probation:
14. (1) *** *** *** (2) Persons appointed to posts belonging to Classes III & IV shall, on the first appointment in the Corporation's service, be required to be on probation for 6 months. (3) Subject to the provisions of any law for the time being in force the appointing authority may, at its discretion, dispense with, reduce or extend the probationary period, but in no case shall the total period of probation exceed- (a) In case of employees belonging to Classes I & II...two years (b) In other cases...one year (4) During the period of probation an employee shall be liable to be discharged from service without any notice. Determination of Service: 18. (1) An employee, other than an employee on probation or an employee appointed on a temporary basis, shall not leave or discontinue his service in the Corporation without first giving notice in writing to the competent authority of his intention to leave or discontinue the service. The period of notice required shall be- (a) three months in the case of an employee belonging to Class I; (b) one month in the case of other employees. Provided that such notice may be waived in part or in full by the competent authority at its discretion. *** ***** ***** *** ***** *****
6.2. No fixation of period of temporary service is inserted under the regulation when the period of probation is, by and large, fixed. But as per Regulation 18, determination of service of employees other than on probation or temporary shall be given notice. Therefore, both were given equal status of determination of service. No notice is required to be given either to the probationer or temporary staffs. Hence, probationer will remain under such status for a brief period and thereafter will be absorbed on regular basis, but in the case of the temporary staff, they will remain forever as temporary in such service under the threat of discontinuation without any notice. This gives further element of unfair labour practice. Therefore, either the employer will give the temporary status in real sense or permanent status by regulansation. There is no third alternative.
6.3. 28th June, 1993 the Central Office of LIC issued an elaborate instruction known as Life Insurance Corporation of India (Employment of Temporary Staff) Instructions, 1993, a scheme of regularisation of the (employees employing with temporary status purportedly based on the guidelines given by the Supreme Court in (State of Haryana and Ors. v. Piara Singh and Ors.). It is also stated therein that said instructions will supersede all the earlier instructions. The relevant portion of said instructions is as follows:
2(b)i) In so far as temporary employment in posts in Class IV are concerned, as soon as the panel for recruitment of staff on a regular basis to posts in Class IV is prepared by the Divisional Office, after offering appointment to the candidates to the extent vacancies are available, the remaining panel may be arranged Branch-wise end these lists may be sent to the various Branches under the control of the Divisional Office. As and when need arises for temporary employment and the vacancy is likely to be of long duration, the Sr./Branch Manager may offer such employment to the persons according to their ranking in the ranking list for regular appointment. In case he declines the offer or where the vacancy is to be filled up immediately the Sr./Branch Manager may offer temporary employment to the candidate in the Branch area who is next in the panel according to the ranking.
The scope and ambit of the Judgment of Piara Singh (supra) is as follows:
Regularisation
Regularisation of ad hoc/temporary employees in government service-Guidelines.
The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/ appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc/ temporary employee.
Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an adhoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
6.4. From the quoted portion it appears that if for any reason an adhoc and temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. Effective date of such instruction is 28th June, 1993. Therefore, the office instructions of 1993 can not frustrate the right of consideration of the respective cases of regularisation of the writ petitioners/appellants in spite of specific mandate of the Supreme Court. Moreover, such mandate will prevail over the wordings of the instruction if found to be lacunic.
7. We should not be forgetful that our country is still sovereign socialist secular democratic republic. Basic structure of the Constitution has to be maintained in spite of changed scenario of the society unless it is amended. We can not be swayed away with the consumerisation being forgetful about the right of the have nots. The problem has been created by the LIC itself to get the temporary employees for permanent work avoiding Court proceeding, therefore, now they can not turn around and refuse consideration of regularisation.
8. As a contradiction we have also discussed certain judgements hereunder. In (Principal, Mehar Chand Polytechnic, Jalandhar City and Anr. v. Anu Lamba and Ors.) following Uma Devi (supra) it was held by the Supreme Court that only because the employees have worked for sometime, the same by itself would not be a ground for directing regularisation of their services. In (Gangadhar Pillai v. Siemens Ltd.) the Supreme Court considered the issue of engagement of temporary staffs in a project but they were discontinued after working not only in a project but various projects, the Court held that consideration of the cause of unfair labour practice is essentially a question of fact but when they were engaged in a project, their termination of service can not be said to be actuated by any malice.
9. According to us, the distinguishing feature is that their services were dependable upon the longevity of the project and thereby it was temporary. But in this case by virtue of the Supreme Court decision in re Piara Singh (supra) regularisation was directed to be effected by the LIC on consideration of unlimited length of service amongst others. In the case of unfair labour practice, the governing principle is that the workman had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of permanent workman as held in (Regional Manager, State Bank of India v. Raja Ram). It is clear that temporary employees were appointed with an intention to get regular job without giving them status only to avoid the Court proceedings. Therefore, this was done by the LIC cautiously. Although Uma Devi (supra) discouraged the tendency of regularisation of the services obtained by the employees following back-door process and considered various decisions inclusive of (Gujarat Agricultural University v. Rathod Labhu Bechar) where in dealing with the case of unfair labour practice, the Supreme Court held who can not be termed to be of such nature. According to the Supreme Court, where work taken is not for a short period or limited for a season or where work is not of a part-time nature but the pattern shows that work is taken continuously year after year, there is no justification to keep such persons hanging forever instead of regularising them. Obligation casts upon the employer. Hence, the logical conclusion is either one has to keep them for a fixed period or project where work of temporary nature can be seen but can not be allowed to continue in the garb of temporary work when in effect the work is of permanent nature. This is the basic principle of unfair labour practice, which can not be avoided, wherever master-servant relationship exists.
10. From the aforesaid discussions, we can sum up the following points:
(a) Neither the candidates were appointed adopting back-door process nor the consideration of their cause is only dependent upon their length of service.
(b) Irrespective of as above, in totality this case is an exception to the principle laid down in Uma Devi (supra).
(c) Unfair labour practice is a principle of law applicable wherever master-servant relationship exists, irrespective of applicability of the Industrial Disputes Act and on the conjoint reading of M. Venugopal (supra) read with Kishan Prakash Sharma (supra).
(d) Principle of Piara Singh (supra) becomes the part and parcel of process of regularisation of service in the internal Instructions of LIC of the year 1993, therefore, in case of any applicability if such Instructions are found to be lacunic, the guidelines of Piara Singh (supra) will be followed in toto having prevailing effect over it.
(e) Non-consideration of cause of the candidates by the authority, without disturbing regular appointment, will be devoid of merit and against the principle of natural justice.
11. Hence, the appellants/writ petitioners’ case will be considered by the authority concerned upon giving fullest opportunity of hearing to the writ petitioners and by passing a reasoned order in connection thereto within a period of one month from the date of communication of this order. However, during the course of consideration if the authority finds any candidate suitable for regularisation, his/their service can be regularised irrespective of passing any such reasoned order as directed above.
12. Thus, with the above observations and order, we dispose of both the appeals without imposing any cost.
V.C. Misra, J.
13. I agree.