SCA/2676/2008 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2676 of 2008 To SPECIAL CIVIL APPLICATION No. 2695 of 2008 With SPECIAL CIVIL APPLICATION No. 2697 of 2008 To SPECIAL CIVIL APPLICATION No. 2704 of 2008 With SPECIAL CIVIL APPLICATION No. 2708 of 2008 To SPECIAL CIVIL APPLICATION No. 2710 of 2008 With SPECIAL CIVIL APPLICATION No. 2712 of 2008 With SPECIAL CIVIL APPLICATION No. 2714 of 2008 To SPECIAL CIVIL APPLICATION No. 2735 of 2008 With SPECIAL CIVIL APPLICATION No. 4486 of 2008 To SPECIAL CIVIL APPLICATION No. 4502 of 2008 With SPECIAL CIVIL APPLICATION No. 30211 of 2007 To SPECIAL CIVIL APPLICATION No. 30213 of 2007 With SPECIAL CIVIL APPLICATION No. 4507 of 2008 With SPECIAL CIVIL APPLICATION No. 4512 of 2008 To SPECIAL CIVIL APPLICATION No. 4516 of 2008 With SPECIAL CIVIL APPLICATION No. 30753 of 2007 With SPECIAL CIVIL APPLICATION No. 29816 of 2007 To SPECIAL CIVIL APPLICATION No. 29823 of 2007 With SPECIAL CIVIL APPLICATION No. 30754 of 2007 To SPECIAL CIVIL APPLICATION No. 30755 of 2007 With SPECIAL CIVIL APPLICATION No. 6345 of 2008 SCA/2676/2008 2/16 JUDGMENT For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = JESANGBHAI CHEHABHAI MAHERIYA Versus UNION OF INDIA AND OTHERS ========================================= = Appearance in SCA Nos. 2676/2003 to 2695/2008 with SCA 2697/2008 to 2704/2008 with SCA 2708/2008 to 2710/2008 with 2712/2008, 2714/2008 to 2735/2008 with 4486/2008 to 2502/2008 with 4507/2008, 4512/2008 to 4516/2008 : MR RAMNANDAN SINGH for the Petitioner MR AK CLERK for Respondent(s) : 2, Appearance in SCA Nos. 30211/2007 to 30213/2007, 30753/2007, 29816/2007, 29817/2007 to 29823/2007, 30754/2007 to 30755/2007, 6345/2008: MR PRAVIN GONDALIYA for the Petitioner ========================================= = SCA/2676/2008 3/16 JUDGMENT CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD Date : 12/05/2008 COMMON ORAL JUDGMENT 1. This common judgment will decide this group of petitions, wherein panel selected for the post of Office Assistants in the Life Insurance Corporation of India has been sought to be operated in its entirety. The petitions have been filed against the impugned action of the respondents wherein they have sought to scrap it, in view of policy devised by them after amending Clauses 5 and 15 of the Life Insurance Corporation of India Recruitment (of Class III and Class IV staff) Instructions, 1993, (hereinafter referred as “Instructions of 1993”) as amended on 26.11.2007. 2. For the purposes of facts, the petition of Shri Ramsingar alias Rajatkumar Ghirrau Sen, being Special Civil Application No.2720 of 2008, is taken. 2.1. The petitioner, in his petition, inter alia states that on 26.11.2007, the respondent Corporation has published advertisement in local daily, 'Gujarat Samachar', and cancelled the select list in which the petitioner alongwith other candidates figured. The petitioner is aggrieved by such SCA/2676/2008 4/16 JUDGMENT scrapping of panel, which was prepared by the respondents after publishing an advertisement in 'Gujarat Samachar' newspaper, Ahmedabad Edition, on 13.10.1993. 2.2. After taking various steps of examination, including viva test, etc., a select list was prepared. The select list has been produced by the petitioner on record at Annexure-'B'. The petitioner's case is that, out of this list, certain persons have been absorbed and appointed on permanent posts and some have been offered appointment on temporary basis at different intervals of time. Earlier, certain persons who were in panel list from Baroda Division, approached this Court by way of Special Civil Application No.20783 of 2005, which was disposed of by this Court on 5.4.2006 by common order. In that order, it was submitted on behalf of the respondent Corporation that, 'the panel list in question remains valid as long as the same is exhausted'. Relevant portion of the order is produced hereinbelow: “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 SCA/2676/2008 5/16 JUDGMENT 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.” (emphasis applied) Thus, the respondents, according to the petitioner, unequivocally undertook that a panel list prepared by LIC remains valid as long as it is exhausted and in that background, the petition was not pressed and disposed of. This was emphasized by the respondents that all the petitioners, who have preferred the petitions before this Court, in which the aforesaid order was passed, have been appointed subsequently by the respondents notwithstanding their position in the panel, as junior or senior. This has resulted into a position where certain persons who were meritorious than those who were appointed by the respondents, have been SCA/2676/2008 6/16 JUDGMENT left out. Thus, hostile discrimination has been made by the respondent Corporation by appointing less meritorious and leaving the persons who were more meritorious from the list. This is said to have been done keeping in mind that those who came to Court could only be appointed. This is unfair also because if persons lower in merit are appointed and those who were in list above the appointed are ignored in the scrapping of list. 2.3. There was another litigation taken before the Bombay High Court, pertaining to similar selection pertaining to the State of Maharashtra, in writ Petition No.1244 of 1999. Therein, the respondents have given a detailed reply before the Bombay High Court, wherein similar stand has been taken by the respondent and the Court has observed in its order as follows: “Detailed reply is filed which is further supported by additional affidavit stating that select list prepared is kept alive even now, i.e. when the affidavit was filed on 17.3.2000. Then they further say that the corporation has not given permanent appointment to any one outside the select list of 72 candidates in Thane Division. Thereafter in pursuance of the direction issued by this Court additional affidavit has been filed on 10.6.2003 SCA/2676/2008 7/16 JUDGMENT wherein the above position was retrieved again and it was stated that by letter dated 17.12.1998 the Zonal Officer of the corporation informed them about the ban on recruitment imposed by their corporate office and therefore, no vacancies are notified or filled in. It is further submitted 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. In this view of the matter we see no reason to issue any further direction since the posts of the petitioners have been secured by the affidavits filed in this court. Petitions accordingly of.” (emphasis applied) Thus, the contention of the learned counsel for the petitioner is that the respondent Corporation has taken uniform stand before the Courts for selection made in the State of Gujarat and State of Maharashtra and have stated that list remains valid until it is exhausted. This stand of the respondent Corporation is not different and their official stand is contained in the memorandum issued in relation to Recruitment of Class- III and Class-IV staff Instructions of 1993, produced with the petition at Annexure-'F'. The undertaking given to the Court, as aforesaid, in SCA/2676/2008 8/16 JUDGMENT relation to various selection was not without foundation. That was in accordance with the policy of the Corporation, as contained in the Recruitment Instructions of 1993. This is an admitted position, as has been said by the respondents in the reply in para 6. “6. It is submitted that clauses 5 and 15 of LIC of India recruitment (of Class-III & IV) Instructions, 1993 did not provide for any time period for which the panel of selected candidates would remain valid. In view of the changed environment and settled legal position, the Corporation decided to amend clauses 5 and 15 of the rules/ instructions to avoid a situation that a panel locks in future vacancies to past selection.” 2.4. The learned counsel for the petitioner states that in the background of this position, as stated hereinabove, the amendments, which have been brought into effect in Clauses 5 and 15 of the Instructions, 1993, would have no bearing as far as selection of the petitioners is concerned because they have been selected, their panel has been prepared under the old Instructions and that should be governed by these Instructions which were prevailing at the time the panel was prepared. Thus, the case of the petitioner is that the panel, as prepared, was to be operative until it is exhausted. SCA/2676/2008 9/16 JUDGMENT 2.5. It is further stand of the petitioner that the persons have been picked up at random from the panel and this has resulted into hostile discrimination. The persons who came to the Court have been appointed irrespective of their merit in the panel. This act has resulted into hostile discrimination to the persons who were more meritorious. Thus, having given the undertaking to this Court, the respondents have bound themselves to a position where legitimate expectation has arisen in the mind of the petitioners to get appointment. 2.6. Further, the respondent Corporation have consciously given an undertaking to the Court, knowing it fully well that otherwise the Court will issue a direction for appointment. Thus, by giving undertaking, they have skillfully avoided to take positive mandate from the Court. That position can be said to be an attempt to interfere in the adjudication in the process of justice. It was skillfully put that there was a ban of recruitment during the interregnum period, therefore, it was necessitated not to operate the list. By amending Clauses 5 and 15, the list of employees who were in the select panel, cannot be done away with because that has been operated in past and those left out cannot be legitimately left out. This position cannot stand scrutiny of law. All the persons in the panel list deserve to be ordered to be appointed. Respondents SCA/2676/2008 10/16 JUDGMENT have undertaken before the Court that they will be appointed. 2.7. Per contra, the learned counsel for the respondents urged that all those who figured in the select panel are not required to be appointed. Therefore, mere finding place in the select list would not confer a right to the petitioner to get appointment. Therefore, the petitioner cannot claim as of right the appointment only by his name having appeared in the panel list. It is not correct position of law. 2.8. The learned counsel for the respondents further urged that since the panel was prepared in 1995, in the intervening period, there came a ban and, therefore, the panel could not be operated. Only for certain irregular period, some temporary appointment was offered to few of persons in the panel and those who have been appointed irrespective of their position because they came to the Court and once undertaking was given in their relation, therefore, appointment became necessary. The persons who have not come to the Court, their appointment was not made. The undertaking given by respondents has to be confined to the petitioners in the petitions and cannot be put against the respondents for appointing the entire penal list. The amendments which have SCA/2676/2008 11/16 JUDGMENT been made in Clauses 5 and 15 are the amendments which have been put into effect immediately and, therefore, the panel list which was more than two years old would cease to have any bearing, therefore, the same was ordered to be scraped. 2.9. The learned counsel for the respondents have relied upon a decision rendered by Allahabad High Court in the case of Leela Dhar and another Vs. Life Insurance Corporation and others, in Civil Misc. Writ Petition No.7959 of 2008. 3. Having given thoughtful consideration to the arguments raised by the learned counsel for the parties, this Court is of the opinion that when few of panelists came before this Court, out of the panel prepared for certain divisions in the State of Gujarat, the respondents had a clear vision in their mind that the list is required to be operated. Similar was the case when the panelists approached the Bombay High Court. The respondents have given clear undertaking in Courts which has been quoted hereinabove that the list is required to be operated in its entirety until it gets exhausted. The law, until these two matters went before the Bombay High Court and the Gujarat High Court, was understood clearly by the SCA/2676/2008 12/16 JUDGMENT respondents that the panel has to be operated in its entirety till it exhausted. 4. The panel has been purportedly scrapped by the respondents on 26.11.2007 by amendment of Clauses 5 and 15 of the Life Insurance Corporation of India Recruitment (of Class III and Class IV staff) Instructions, 1993. But, as regards the panel in question and the undertaking given to the Court is concerned, there emerges a clear legitimate expectation in the mind of the panelists. When an issue goes before the Court and the respondents gave undertaking that the panel will be operated, then such undertaking gives rise to an expectation which partakes the character of legitimate expectation. Assurance was otherwise available to petitioners in view of Instructions of 1993, wherein it has been clearly provided that the list is to be operated until it is exhausted. Therefore, it cannot be said that by appearing in the panel list, the panelists have got no right to get appointment. The respondents have time and again given assurances in Court that the list will be operated. 5. There is no policy decision taken prior to the amendment in Clauses 5 and 15, that list will not be operated. SCA/2676/2008 13/16 JUDGMENT Therefore, it cannot be said that the panel was not desired to be operated. The respondents were clear in their perception that the appointment will be given and the panelists are entitled to be appointed. This remains a fact that certain persons, out of the panel, have been appointed because they went to the Court. Those who did not go to the Court, at that time, have been left out. This is a situation, which creates discrimination. The respondents appointed those only who approached the Court, in this process they have left aside the more meritorious persons, i.e. those who figured in list higher than those appointed. If a list is operated and less meritorious persons are appointed then, it cannot be said that only those who approached the Court have right to get appointment. Those who were meritorious and above in the panel list had a much better chance to get appointment prior to the appointment of less meritorious. Therefore, those panelists who were senior to those who have already been appointed, are required to be appointed by the respondents from the panel, wherein any person who is junior in the panel was appointed. Therefore, the case of all those panelists who are more meritorious being placed in the panel earlier to the persons who have been appointed, get a right to be appointed forthwith. SCA/2676/2008 14/16 JUDGMENT 6. The learned counsel for the respondents said that those who were appointed out of the panel on temporary basis and were in service on the day when the order was passed to scrap the panel, their services were regularised. In that situation, it has to be seen that those who have been appointed, few of them have been appointed on very short period, may be for 3 months or may be for six months or with intermittent break, sometime 'A', sometime 'B' or sometime 'C', there have been kind of zigzag operation of the list and no consistency was maintained by the respondents. Therefore, this kind of pick and choose policy has also created discrimination in between the panelists and, therefore, this approach has also put the respondents in a position where it can be said that they operated the panel in a fashion which can be said to be fashion of the czars. Respondents have appointed persons and removed persons after few months and appointed another person at their whims. 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 panelist who were ever appointed are required to be put at par with those who were regularised notwithstanding their term being SCA/2676/2008 15/16 JUDGMENT small. 7. This is required in the background wherein a person on the day of order of scrapping the list if was in service may be for three months have been regularised. If this is not done, then unfairness will be writ large. This leaves few of them who were never appointed. This Court feels that the panel having prepared in 1995 and those who were never appointed, then, their case stand on a very different footing and in their case, the Court passes no favourable order because they were never considered by the respondents to be employed even for temporary periods. Therefore, all those who were never appointed can now be excluded by the respondents in the wake of appointments having been made from the panel. 8. 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 regularised and those who were never appointed even for short period could be excluded. 9. 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 SCA/2676/2008 16/16 JUDGMENT 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. 10. It may be stated about the case cited by the respondents, as decided by Allahabad High Court, that the case has been decided in abstracts without taking into considerations which were obtaining in this group of petitions in hand. It only states abstract point of law that those in the select do not get an absolute right of appointment. But, this proposition of law is qualified by the Court with many exceptions. Such exceptions are present in the set of cases decided herein. Thus, the case has no application in the facts of the present controversy. 11. The petitions are disposed of with the aforesaid directions. (BHAGWATI PRASAD, J.) omkar