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2017 DIGILAW 422 (CAL)

KAKALI CHAKRABORTY v. LIC OF INDIA

2017-04-26

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty J. The subject matter of challenge in the instant appeal is an order dated 16th July, 2015 passed by the learned Single Judge in WP 32943 (W) of 2014. By the said order the writ petitioner's challenge against an order dated 22nd October, 2014 passed by the respondent no.2 was set aside since according to the learned Judge the same was neither palpably wrong nor the same had been rendered without adhering to the specific directions given by the Court. 2. Shorn of unnecessary details the facts are that the writ petitioner's husband, namely, Subrata Chakraborty (hereinafter referred to as Subrata) was appointed as a temporary peon in the Life Insurance Corporation of India (hereinafter referred to as LICI) Branch Office No.1 at Siliguri on 30th June, 1992. There occasioned a dispute as regards regularisation of the services of Subrata and other similarly situated temporary employees which went up to the Hon'ble Supreme Court and ultimately by an order dated 18th January, 2011 the respondents were directed to consider the claim of regularisation of the temporary Class-IV employees in terms of the scheme framed by LICI which, inter alia, provided that the said temporary employees would be regularised in the event they are successful in the onetime limited examination to be held by LICI. In terms of the said order, Subrata was asked to appear in a written test scheduled on 26th June, 2011. On the scheduled date he attended the examination hall where he fell ill and subsequently expired on 3rd July, 2011 leaving behind the appellant and a fourteen year old daughter. To tide over the extreme financial distress due to the loss of the sole bread earner, the appellant submitted applications for compassionate appointment but in vain and as such she preferred a writ petition being W.P.26389(W) of 2013 which was disposed of by an order dated 28th July, 2014 observing that the appellant's claim requires sympathetic consideration and accordingly directing the respondent no.2 to consider the appellant's representation for compassionate appointment and to pass a reasoned order. Subsequent thereto, the said respondent no.2 passed an order on 22nd October, 2014 which was challenged in the writ petition being WP 32943 (W) of 2014. 3. Mr. Dutta, learned advocate appearing for the appellant at the inception submits that the appellant is not praying for any permanent appointment. Subsequent thereto, the said respondent no.2 passed an order on 22nd October, 2014 which was challenged in the writ petition being WP 32943 (W) of 2014. 3. Mr. Dutta, learned advocate appearing for the appellant at the inception submits that the appellant is not praying for any permanent appointment. Even in the event she is engaged as a temporary staff, the same would apply balm on her wounds caused due the sudden loss of the sole bread earner of the family. 4. He submits that in the order dated 28th July, 2014 passed in WP 26389 (W) of 2013 the learned Court arrived at a categoric finding that the appellant's claim requires sympathetic consideration but unfortunately, the respondent no.2 did not take note of such finding and dismissed the appellant's claim on a purported ground that her deceased husband could not secure permanent employment and as such she cannot claim compassionate appointment in terms of the Life Insurance Corporation of India (Staff) Regulations, 1960 (hereinafter referred to as the said Regulations) and the LIC of India Recruitment (of Class II and Class IV Staff) Instructions, 1993 (hereinafter referred to as the said Instructions). 5. Drawing the attention of this Court to the averments in paragraph 19 of the stay application, he submits that all the other temporary Class-IV employees, similarly situated with Subrata, who participated in the onetime limited examination held by LICI were regularised and even the dependants of the employees, who died in harness after such regularisation, were also granted compassionate appointment by the respondents. 6. Per contra, Mr. Majumder, learned advocate appearing for the respondents submits that Subrata was working as a daily wager and was not as a temporary employee and he does not come under the purview of the said Regulations and the said Instructions. Subrata expired prior to regularisation of his services and as such the appellant cannot even claim compassionate appointment. Subrata could not complete the onetime limited examination provided under the scheme of LICI as approved by the order of the Hon'ble Supreme Court dated 18th January, 2011. Had he been ultimately regularised in a permanent post question of consideration of the claim of the appellant for compassionate appointment, as a dependant of the deceased, would have occasioned. Subrata could not complete the onetime limited examination provided under the scheme of LICI as approved by the order of the Hon'ble Supreme Court dated 18th January, 2011. Had he been ultimately regularised in a permanent post question of consideration of the claim of the appellant for compassionate appointment, as a dependant of the deceased, would have occasioned. In the absence of any provision towards grant of compassionate appointment to the dependant of a daily wager, the appellant's claim was rightly rejected by the respondent no.2. 7. He disputes the contention of the appellant that all the candidates, similarly situated with the deceased employee, were regularised and submits that 105 candidates were allowed to appear in the onetime limited examination and only 101 candidates passed in the written test and after interview 97 candidates were ultimately regularised. Thus it cannot be construed that even if Subrata had faced the examination, he would have emerged to be successful for regularisation. Merely on the basis of sympathy the appellant cannot be granted compassionate appointment. Referring to a memorandum dated 7th February, 2011, he further submits that a ban has been imposed as regards appointment of any temporary/daily wager and the same is operating till date. 8. Heard the learned advocates appearing for the respective parties and considered the materials on record. Indisputably, Subrata served for 18 long years as a temporary staff, as would be explicit from the certificate issued by the respondent no.3. He fulfilled the provisions of the scheme which received the imprimatur of the Hon'ble Supreme Court and accordingly he was called for the written test but it was destined that he would not be able to complete the onetime limited examination and his sudden demise stood in between his selection and regularization. His colleagues, however, participated in the selection process and were regularized and the authorities did grant compassionate appointment even to the dependents of the employees who died in harness. Today, it is well-nigh impossible for this Court to appreciate as to whether Subrata would have emerged to be successful in the onetime limited examination for regularisation. Subrata expired prior to conclusion of the examination and as such the appellant is faced with a fate accompli which works to her extreme prejudice. 9. Today, it is well-nigh impossible for this Court to appreciate as to whether Subrata would have emerged to be successful in the onetime limited examination for regularisation. Subrata expired prior to conclusion of the examination and as such the appellant is faced with a fate accompli which works to her extreme prejudice. 9. A perusal of the memorandum dated 7th February, 2012 would reveal that the same was related to the subject of "Posting of newly recruited Peons as per the Order dated 18.01.2011 of Hon'ble Supreme Court:- Broad Guidelines." and in the same it was stated that "no new temporary/daily wager is to be appointed by any office henceforth". The ban as imposed does not debar consideration of the appellant's claim for engagement as a temporary staff which emanates from the scheme of LICI placed before the Supreme Court. 10. In the explanatory note in Clause 2 of the said Regulations it has been stated that the word "Employee" excludes insurance agents and work-charged employees. Under Regulation 5 the staff of the corporation has been classified. Regulation 8 deals with temporary staff and it provides that "(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". The provisions of the said Regulations are thus applicable to the temporary staff save and except in cases where the temporary staff had been specifically excluded. 11. Disengaging ourselves from the logjam, we need to see through the back of beyond where some essential human elements, which require some tender handling, stare at our face. Between law and life, the Court, even in its obligation for being a creature of the former cannot lose its sense of justice in respect of the latter since justice is always above law. Judiciary has a strong sense of justice and it works to maintain social justice and fairness. Equity regards as done, which should have been done. 12. Between law and life, the Court, even in its obligation for being a creature of the former cannot lose its sense of justice in respect of the latter since justice is always above law. Judiciary has a strong sense of justice and it works to maintain social justice and fairness. Equity regards as done, which should have been done. 12. The Court in its earlier order arrived at a finding that the appellant's claim deserves sympathetic consideration. The said order was not appealed against but the respondent no. 2 passed the order dated 22nd October, 2014 in a mechanical manner being oblivious of the way the claim was directed to be considered. It is well settled that an order passed in derogation to the directives and observations of the Court is a nullity [See the judgment delivered in the case of Manohar Lal (D) by Lrs. v. Ugrasen (D) by Lrs. & Ors., reported in 2010 (4) Supreme 519 ]. The order dated 22nd February, 2014 has been rendered without adhering to the specific directions given by the Court and, accordingly, the said order dated 22nd February, 2014 and the order impugned in the appeal are set aside. 13. For the reasons discussed above and in the peculiar facts and circumstances of the case, the Chairman is directed to issue necessary direction towards engagement of the appellant as a temporary staff within a period of four weeks. In the event any permanent vacancy occurs in a Class IV post in future, the appellant would be allowed by the respondents to compete in the selection process upon condonation of age. 14. There shall, however, be no order as to costs. 15. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.