- (1.) AMITAVA Lala, J. 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 others v. Chairman, Central Office Mumbai and others ). 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 B. N. 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. "
(2.) 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 cannot regularize the service of the petitioners without having any provision thereof, therefore, there is no scope of consideration. 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 pj giving permanent shape of the service of the petitioners, regular process of giving" service to others will be infringed. 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 reported in 2006 (4) SCC 1, Secretary, State of Karnataka and others v. Uma Devi (3) and others. 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 orihe authority concerned. There are also more ambitious claims that even if they were not working against a sanctioned post, even if they do not possess the requisite qualification, even if 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 Appeal 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. "
(3.) 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 proposition in the facts and circumstances of the present case. 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 for their continuance till date when the Lic has come with a positive assertion that the service of the temporary staffs cannot be regularized. Learned Single Judge held that there is no specific denial with regard to the fact that tjhe 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.;