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2023 DIGILAW 613 (AP)

Maddirala Pedda Mallikarjuna, S/o. Somaiah v. Life Insurance Corporation of India, Rep. by its Chairman

2023-03-21

SUBBA REDDY SATTI

body2023
ORDER : This petition under Article 226 of the Constitution of India, is filed seeking the following relief : “… to issue an appropriate writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in taking steps to remove the Petitioner as Sub-Staff without regularizing his service by conducting the examination in pursuance of orders dated 18.01.2011 in Civil Appeal No.953 to 968 of 2005 passed by the Hon’ble Supreme Court even though the Petitioner has completed more than 12 years of service as Sub-staff and trying to appoint some other candidate in his place treating the same as vacant as arbitrary, illegal, unjust and unconstitutional, violative of principles of natural justice and contrary to Articles 14, 16 and 21 of the Constitution of India and issue consequential direction to the Respondents to continue the Petitioner as Sub-Staff by duly regularizing his service as per the orders dated 18.01.2011 in Civil Appeal No.953 to 968 of 2005 passed by the Honourable Supreme Court along with all consequential and attendant benefits in the interests of justice and pass such other …”. 2. The facts of the case, in brief, are that petitioner worked as Sub-Staff under respondent No.4 for the period from 2005 to 2010 at Giddalur branch office, Nellore Division. Thereafter, from 26.06.2010 onwards, petitioner was asked to work at Satellite Office, Cumbum under the control of respondent No.4. Though the petitioner has been working since 2005, respondent No.4 did not issue proof of temporary employment certificate to the petitioner. 3. Corporation filed SLP (Civil Appeal) Nos.953-968 of 2005 before the Hon’ble Apex Court wherein an affidavit was filed stating that Corporation formulated a scheme where under all the eligible class IV employees as also open market candidates, who had appeared for examination for recruitment as class IV employees in the year 1996 shall be absorbed. Recording the same the Hon’ble Apex Court disposed of the appeals. Pursuant to the said order, dated 18.01.2011 the Corporation conducted ‘one time limited’ examination to the persons working in LIC for more than five years and who possessed minimum eligible qualification. Interviews were conducted to temporary employees, who were successful in the written test and also to open market candidates separately, in the month of July, 2011. 4. Petitioner though has been working from 2005, his services were not regularized. Interviews were conducted to temporary employees, who were successful in the written test and also to open market candidates separately, in the month of July, 2011. 4. Petitioner though has been working from 2005, his services were not regularized. Respondent-Corporation disengaged persons working on temporary basis, as sub-staff. Corporation is making payments of salary through NEFT from January 2017. Corporation adopted a new procedure of making payments i.e. weekly once from 01.01.2018 that too in different names and is insisting petitioner to sign the voucher in the said name. 5. Number of persons approached High Court and High Court granted interim orders. Petitioner, apprehending that he will be dis-engaged, filed the present writ petition for the relief stated supra. 6. Counter affidavit was filed on behalf of the respondents. It was contended, inter alia, that petitioner was engaged as daily wager, intermittently as, and when need arises, to do miscellaneous jobs such as dusting, filing, serving water, cleaning, maintenance of office etc. The petitioner, neither recruited by the Corporation as per the procedure nor was issued any appointment letter by any authority. The averment in the writ affidavit that petitioner has completed more than 12 years is specifically denied. 7. Pursuant to the order in SLP No.953-968 of 2005, as one time measure, to regularize temporary employees, who were working on continuous basis for five years as on 18.01.2011 and had possessed eligibility criteria, Corporation has called for applications by issuing notification dated 20.05.2011. Based on written examination and interview, eligible temporary employees were appointed as Peons long back in 2011-2012. Petitioner did not apply in response to the notification dated 20.05.2011 issued by the Corporation. 8. The averment in the affidavit that the petitioner was paid wage in different names is also denied. The claim of the petitioner for regularization cannot be made dehors the rules and constitutional scheme of public employment. Temporary employment in LIC of India will be done as per the LIC of India (Employment of Temporary Staff) Instructions, 1993 dated 28.06.1993. The petitioner was not appointed under the above instructions. Eventually, prayed to dismiss the writ petition. 9. Heard Sri P. Raj Kumar, learned counsel for the petitioner. 10. Though the counter affidavit was filed along with vacate stay petition, none appeared on behalf of the Corporation. 11. The petitioner was not appointed under the above instructions. Eventually, prayed to dismiss the writ petition. 9. Heard Sri P. Raj Kumar, learned counsel for the petitioner. 10. Though the counter affidavit was filed along with vacate stay petition, none appeared on behalf of the Corporation. 11. Learned counsel for the petitioner would submit that petitioner has been working in respondent-Corporation since 2005 and hence, service of the petitioner is to be regularized. He would also submit that Corporation cannot disengage the petitioner from services. He placed reliance upon judgment in W.P.No.32705 of 2017 of learned Single Judge of Telangana High Court. 12. The points for consideration are : 1. Whether the alleged action of the Corporation in taking steps in disengaging the petitioner from services without regularization of services by conducting examination pursuant to the order, dated 08.11.2011 in Civil Appeal No.953-968 of 2005 is illegal and arbitrary? 2. Whether petitioner is entitled to continue as sub-staff in the respondent corporation? 13. While admitting writ petition, on 31.01.2018, interim order was granted in I.A.No.1 of 2018, which reads thus : “Heard the learned counsel for the petitioner, who submits that in similar circumstance, this Court passed interim orders in W.P.M.P.No.24875 of 2013 in W.P.No.20276 of 2013, dated 12.07.2013 and the same is not disputed by the learned Standing counsel for the respondents. In view of the same, the respondents are directed not to depute to replace the petitioner with any temporary employee recruited afresh.” 14. In the affidavit, petitioner averred that he has been working in the Corporation since 2005. The petitioner also averred in the affidavit that respondent is making payment to him in different names and further insisting him to sign vouchers in that name. Along with writ petition, petitioner filed Ex.P1, bank statement wherein certain payments were reflected. 15. As can be seen from the material, respondent-corporation, pursuant to the order in SLP No.953-968, conducted test and recruited persons eligible, based on the written examination and interview in 2011-12. The persons, who have completed five years as on 18.01.2011, are eligible and in fact recruitment was conducted in those lines. According to the petitioner, he has been working in the Corporation from 2005 onwards. However, for the reasons best known, the petitioner did not apply pursuant to the notification issued by the Corporation. 16. The persons, who have completed five years as on 18.01.2011, are eligible and in fact recruitment was conducted in those lines. According to the petitioner, he has been working in the Corporation from 2005 onwards. However, for the reasons best known, the petitioner did not apply pursuant to the notification issued by the Corporation. 16. In W.P.No.32705 of 2017, relied upon by learned counsel for the petitioner, it was a case of extension of minimum time scale in the light of decision reported in State of Punjab and others vs. Jagjit Singh and others, 2017 (1) SCC 148 . Thus, the order placed by learned counsel for the petitioner does not apply to the facts of the case. 17. For issuance of Writ of Mandamus, petitioner should satisfy the Court qua the infringement of his legal right and corresponding legal obligation on the part of the State or its instrumentality. 18. In State of U.P. and others Vs. Harish Chandra and others, 1996 (9) SCC 309 , the Hon’ble Apex Court held as follows : "10 ...Under the Constitution, a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition." 19. In Union of India Vs. S.B. Vohra, 2004 (2) SCC 150 , the Hon’ble Apex Court considered the similar issue and held that for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so. 20. In Mani Subrat Jain Vs. State of Haryana, AIR 1977 SC 276 , while considering scope of Article 226 of the Constitution, the Hon'ble Apex Court observed as follows : “9. ...It is elementary though it is to be restated that no one can ask for a mandamus without a legal right there must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. ...It is elementary though it is to be restated that no one can ask for a mandamus without a legal right there must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (See Halsbury's Laws of England 4th Ed. Vol. I, paragraph 122); State of Haryana Vs. Subash Chander, AIR 1973 SC 2216 ; Jasbhai Motibhai Desai Vs. Roshan, Kumar Haji Bashir Ahmed, AIR 1976 SC 578 ) and Ferris Extraordinary Legal Remedies paragraph 198.” 21. A conspectus of the expressions of Hon’ble Apex Court would discern that a writ of Mandamus can be issued if the petitioner satisfies or establishes existence of legal right in himself and a corresponding legal duty in the respondent. 22. In the case on hand, the claim of the petitioner that he should be allowed to continue, and respondent shall not disengage services of the petitioner is only a mere apprehension of the petitioner. Petitioner failed to satisfy existence of legal right. Unless the petitioner satisfies his legal right as to continue in service this Court cannot issue a Mandamus against the respondent. Averments in the affidavit are not clear as to when the petitioner joined as temporary employee and continuing in the Corporation. Had the petitioner satisfied the conditions, petitioner could have availed the opportunity of attending the test conducted by the Corporation. Nothing is forth coming from the affidavit as to why could not attend the test if really petitioner has been working in the corporation as averred in the affidavit. Further the averment in the affidavit that though petitioner has been working salary is being paid in different names is without any material. No proof was filed along with the affidavit to substantiate the said contention. Writ of Mandamus cannot be issued in favour of the petitioner directing the corporation to continue services of the petitioner in respondent Corporation. In view of the discussion supra, this Court does not find any reasons for issuing Writ of Mandamus. The Writ Petition is liable to be dismissed. 23. Hence, this writ petition is dismissed. No costs. Writ of Mandamus cannot be issued in favour of the petitioner directing the corporation to continue services of the petitioner in respondent Corporation. In view of the discussion supra, this Court does not find any reasons for issuing Writ of Mandamus. The Writ Petition is liable to be dismissed. 23. Hence, this writ petition is dismissed. No costs. As a sequel, all the pending miscellaneous petitions shall stand closed.