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2008 (2) GCD 1399 (Guj)
Hon’ble Mr. Justice Bhagwati Prasad
Jesangbhai Chehabhai Maheriya
Versus
Union of India & Ors.
Special Civil Application No. 2676 of 20081—Decided on 12/05/20082
Amendment — Scraping of select list — Certain persons absorbed and appointed — Assurance that penal list valid till exhausted — Hostile discrimination — Relief — Admissible — Finding of.
Point in Issue :
Whether action of respondent in scraping the select list justified.
Head Note :
Service & Employment — Life Insurance Corporation of India Recruitment (Classes III & IV Staff) Instructions, 1993 — Clauses 5 & 15 — Amendment — Scraping of select list — Certain persons absorbed and appointed — Assurance that penal list valid till exhausted — Hostile discrimination — Relief — Admissible — Finding of — After due process select list is prepared for appointment to the post of Assistants in the L.I.C. of India — Instead of operating the list in entirety the respondent has absorbed certain persons and appointed them of permanent posts — Same have been offered appointment on temporary basis — Earlier certain persons out of penal list approached this Court where in respondent submitted that the penal list in question remains valid as long as the same is exhausted — Such undertaking by respondent certainly gives rise to an expectation which partakes the character of legitimate expectations — The assurance was otherwise also available to petitioners in view instructions of 1993 — Where in it has been clearly provided that the list is to be operated until it is exhausted — It cannot, therefore, be said that by appearing in the panel list the panelists have got no right to get appointment — In view of this Court ordered that all those who were ever taken in service before the list is scrapped will be offered appointments by the respondents — This is because they have undertaken before the Court to that effect — Those who were never appointed for any period they shall be left out — However, and those whose juniors have been appointed will have to be treated separate & offered appointment.
Held :
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.
[Para 3]
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 have 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. [Para 4]
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. [Para 5]
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 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. [Para 9]
Law Laid Down :
Appointment to those only who went to the Court and leaving out others is discrimination.
Case Law Analysis :
Leela Dhar & Anr. vs. Life Insurance Corporation & Ors., in Civil Miscellaneous Writ Petition No. 7959 of 2008 [Para 2.9].—Distinguished
Bhagwati Prasad, J.—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 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 the 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 05.04.2006 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 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 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 per
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