High Court
Case Details
WP(C) 4853/2011 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL)
Legal Reasoning
Heard Mr. B.D. Das, learned Senior counsel assisted by Mr. D. Nath, lear ned counsel for the petitioner. Also heard Mr. N. Deka, learned counsel for the respondents. 2. By way of this writ petition under Article 226 of the Constitution of In dia, petitioner seeks a direction to the respondents to allow him to participate in the selection process pursuant to the notice dated 20.5.2011. 3. Case of the petitioner is that he belongs to the Other Backward Class (O BC) community and had passed the Higher Secondary Examination in the year 2003. Since 11.7.2005, he has been serving as temporary employee / daily wage employee in Dhubri Branch of Life Insurance Corporation of India (LICI) and he has been receiving his wages from the authorities on weekly / monthly basis. The payment receipts / bills towards the wages are issued in the name of the petitioner i.e. Sri Jitendra Nath except for a few bills where his nickname i.e. Sri Nipul Nath has been mentioned. Executive Director (Personnel), LICI, Central Office, Mumbai issued noti 4. ce on 20.05.2011 for recruitment to regular class IV post (Peon) from amongst te mporary class IV employees working in LICI for more than 5 years as on 18.01.201 1 subject to fulfillment of other eligible conditions. As per the selection proc edure, there would be a written test and those candidates who are successful in the written test would be short-listed and called for interview. Final selection would be on the basis of performance in the written test and interview taken to Being eligible, petitioner applied pursuant to the said notice through t gether. 5. he Branch Manager, Dhubri Branch of LICI. 6. List of 22 eligible candidates was published and affixed in the notice b oard of LICI, Dhubri Branch stating that written test would be held on 26.06.201 1. Petitioner’s name was, however, not included in the said list. 7. Petitioner approached LICI authorities contending that he fulfills the e ligibility criteria of the recruitment process and requested them to allow him t o appear in the written test. But there was no response. He then filed a represe ntation dated 29.06.2011 addressed to the Chairman, LICI and Zonal Manager, LICI stating that he has been serving as temporary / daily wage employee in Dhubri B ranch of LICI since 11.07.2005. He has been regularly receiving his wages in his name except in respect of 4/5 numbers of bills/receipts wherein the payment was made in the name of Nipul Nath, his nickname. He, therefore, requested the auth orities to allow him to appear in the written test as he fulfills the eligibilit y criteria. Since there was no response, he filed an application under the Right to Information Act, 2005 seeking a copy of his application form submitted pursu ant to the notice dated 20.05.2011 alongwith copies of some other documents. The Central Public Information Officer, LICI, Bongaigaon furnished the information sought for by the petitioner vide forwarding letter dated 10.08.2011. On being s o furnished, petitioner found that there was overwriting and changing of the fig ures given by the petitioner in his application form regarding the period of tem porary employment in LICI. While the petitioner had declared the said period as 5 years 4 months 7 days since 11.07.2005, the same was changed to 3 years 8 mont hs 7 days since 28.05.2007. Against the aforesaid manipulation in his applicatio n form, petitioner lodged an FIR before the Dhubri Sadar Police Station on 18.08 .2011, on the basis of which Dhubri P.S. Case No. 451/2001 under Section 420/468 IPC has been registered. 8. Out of the 26 vacancies in regular Grade IV post (Peon) under the Bongai gaon Division of LICI, only 22 candidates as noticed above were short-listed for the written test. 9. s) as indicated above. Aggrieved, petitioner has filed the present petition seeking the relief( 10. Contention of the petitioner is that without any justifiable reason, LIC I authorities had excluded his name from the list of eligible candidates for rec ruitment to regular Grade IV post (Peon) from amongst the temporary Grade IV emp loyees working in LICI. Petitioner fulfills the eligibility criteria including r endering of service for more than 5 years as on 18.01.2011. Petitioner has been working as a daily wager in the Dhubri Branch since 11.7.2005. On a few occasion s, his wages were paid in his nickname i.e. Sri Nipul Nath. LICI authorities had never disputed or questioned that Sri Jitendra Nath and Sri Nipul Nath is the o ne and the same person. Petitioner has relied upon certificate dated 19.05.2007 of the Senior Branch Manager, LICI Dhubri Branch, who certified that Sri Jitendr a Nath and Sri Nipul Nath is the same person, who was working as daily wager fro m 11.7.2005 to 19.5.2007 while he was serving as Senior Branch Manager at Dhubri Branch. There is another certificate dated 24.08.2011 issued by the Dhubri Bran ch of the National Federation of Insurance Field Workers of India certifying tha t Sri Jitendra Nath alias Sri Nipul Nath (his nickname) has been working since 1 1.7.2005 till the date of certificate. Similar certificate dated 24.8.2011 was a lso issued by the Insurance Agents’ Association, Dhubri Unit. Petitioner, theref ore, contends that non-consideration of his case by treating him as ineligible c andidate on the ground of non-completion of 5 years of temporary service does no t stand to reason and calls for interference of this Court. This Court admitted the writ petition by order dated 19.9.2011 and direc 11. ted the respondents to dispose of the petitioner’s representation dated 29.6.201 1 looking into his engagement record. By subsequent order dated 20.12.2011, this Court directed the respondents not to fill up one post of Peon under the Bongai gaon Division pursuant to the selection process in terms of notification dated 2 0.5.2011. Again by order dated 7.3.2012, while granting time to the respondents to file counter affidavit, this Court declared that pendency of the case shall n ot be a bar to consider the petitioner for the regular post of Peon in the Bonga igaon Division pursuant to the notice dated 20.05.2011. 12. Respondents have filed counter affidavit. Stand taken is that petitioner has been serving as temporary / daily wage employee in Dhubri Branch of LICI in bits and parts and has not been in continuous engagement. It is stated that 16 vouchers annexed to the writ petition as payment made to the petitioner are in t he name of one Sri Nipul Nath. The respondents have denied that Sri Jitendra Nat h and Sri Nipul Nath is one and the same person. Petitioner did not submit certi ficate from the competent authority certifying that he has been continuously ser ving LICI for a period of 5 years as on 18.1.2011. Since the petitioner did not have the qualifying service of 5 years continuous engagement as daily wager as o n 18.1.2011, his candidature was not considered. Representation dated 29.6.2011 was considered but rejected. This was communicated to the petitioner vide letter dated 15.10.2011. Petitioner did not mention in his application form that Sri Jitendra Nath and Sri Nipul Nath is the one and same person. Respondents have de nied the allegation of manipulation. They have stated that at the time of scruti ny of the application, the petitioner’s tenure of engagement was assessed at 3 y ears 8 months 7 days and this was written in the application. There is no illega lity in the action of respondents in excluding the petitioner from the list of e ligible candidates. 13. In his reply affidavit, petitioner has stated that his nickname is ’Nipu l’ and is known by that name amongst the officials and staff of the Dhubri Branc h of LICI. Jitendra Nath and Nipul Nath is one and the same person, serving as t emporary / daily wage employee under the respondent No. 4 since 11.7.2005 and al l payments have been received in his name i.e. Jitendra Nath except a few bills where his nickname i.e. Nipul Nath has been mentioned. Petitioner had submitted an application under the Right to Information Act, 2005 on 24.5.2012 seeking inf ormation about the particulars of Sri Nipul Nath, such as his father’s name, age , residential address, educational qualification, photograph, etc since responde nts have made payments to him as temporary employee in the Dhubri Branch of LICI . Petitioner was informed by letter dated 4.6.2012 that though Sri Nipul Nath wa s paid his labour charge on 8 occasions from 2005 to 2007, there is no record re lating to his father’s name, age, residential address, educational qualification , photograph, etc. Petitioner, therefore, contends that there is no separate per son call Sri Nipul Nath. Nipul is his nickname and, therefore, Sri Jitendra Nath and Sri Nipul Nath is the one and the same person. Mr. B.D. Das, learned Senior counsel for the petitioner submits that res 14. pondents were not justified in rejecting the candidature of the petitioner by ex cluding him from the list of eligible candidates. He submits that the higher aut hority of LICI could have obtained report from the Branch office at Dhubri to as certain the actual position regarding engagement of the petitioner. Everyone in the Dhubri office of LICI knows the petitioner as Nipul Nath. This aspect could have been ascertained by the authority. Failure to do so has caused serious prej udice to the petitioner. He, therefore, prays for intervention by this Court to enable petitioner to participate in the selection process in terms of notice dat ed 20.05.2011. 15. Resisting the submission of learned Senior counsel for the petitioner, M r. N. Deka, learned counsel for the respondents submits that there is no materia l before the respondents to either show that Sri Jitendra Nath and Sri Nipul Nat h is one and the same person or that Sri Jitendra Nath had completed 5 years of temporary Grade IV service in the LICI as on 18.01.2011. In such circumstances, respondents had no other alternative but to exclude the petitioner from the list of eligible candidates, which was verbally informed to him. Representation subm itted by petitioner was also examined but it was found that petitioner had conti nuously worked only from February, 2007 to January, 2011. As the petitioner did not complete continuous engagement for 5 years to fulfill the eligibility criter ia for recruitment of Peon, the representation of the petitioner was rejected. C ontending that there is no merit in the writ petition, learned counsel for the r espondents seeks dismissal of the same. Submissions made have been considered. 16. 17. Before proceeding further, it may be relevant to examine the nature of t he recruitment process. A perusal of the notice dated 20.05.2011 would show that the same was issued following a direction of the Hon’ble Supreme Court dated 18 .01.2011 passed in Civil Appeal No. 953-968 (Shri D.V. Anil Kumar & Others Vs. L ife Insurance Corporation of India). As recorded in the notice dated 20.05.2011, the Apex Court had directed the LICI as a one time measure to recruit all the e ligible temporary class IV employees working in LICI for more than 5 years as on 18.01.2011 possessing minimum eligibility qualification by holding a limited wr itten examination in vernacular language with limited syllabus to be announced i n advance. The successful short-listed candidates shall be called for interview and those who are successful in the interview shall be appointed and posted anyw here in the respective zone. Based on the said direction of the Hon’ble Supreme Court, LICI head office issued the notice dated 20.05.2011 which provided that a ll temporary class IV employees working in LICI for more than 5 years as on 18.0 1.2011, possessing the minimum eligibility qualification (Class IX passed) and a ge as prescribed by LICI were eligible to apply. The notice also prescribed the selection procedure containing the written test and interview. 18. As seen from the above, the objective of the recruitment process notifie d by the notice dated 20.05.2011 is a beneficial one and based on a direction of the Hon’ble Supreme Court. It is a special recruitment drive to be carried out as a one time measure, giving an opportunity to all the temporary Grade IV emplo yees working in LICI having the required qualification for regular appointment. All temporary class IV employees working in LICI for more than 5 years as on 18. 01.2011 would be covered by the said notice. Those who are excluded from the sai d recruitment process will lose the opportunity for regular appointment as Grade IV (Peon) through the said one time recruitment drive. It is in the above context that the case of the petitioner is to be exam 19. ined. Petitioner has placed on record a certificate dated 19.05.2007 issued by t he Senior Branch Manager, LICI, Dhubri Branch certifying that Sri Jitendra Nath and Sri Nipul Nath is the same person and that he had been working as daily wage r in the LICI since 11.07.2005 to 19.05.2007. The respondents in their counter a ffidavit have not denied the genuineness of the certificate or the correctness o f the contents of the said certificate. In paragraph 9 of the counter affidavit, it is stated that the said certificate was for the period from 11.07.2005 to 19 .05.2007 and that the said certificate was not submitted by the petitioner along with the other documents while submitting the application form. Thus, there is n o denial in so far averments made in respect of the said certificate are concern ed. Respondents have, however, stated in their affidavit that they have scrutini zed the application of the petitioner and found his tenure of engagement 3 years 8 months 7 days w.e.f. 28.05.2007. In the communication dated 15.10.2011 issued by the respondents to the petitioner (Annexure 1 to the counter affidavit), it has been stated that petitioner had continuously worked from February, 2007 to J anuary, 2011. Nothing has been stated about the certificate dated 19.05.2007. Th e said certificate was issued by a senior officer of the LICI who certified that Sri Jitendra Nath and Sri Nipul Nath is the same person and that he worked as d aily wager from 11.07.2005 to 19.05.2007. If the said certificate and the findin g recorded in the communication dated 15.10.2011 are read together, it will be e vident that the petitioner had put in more than 5 years of temporary service in the LICI as on 18.01.2011. The communication dated 15.10.2011 was issued after t he order of this Court dated 19.9.2011 which provided as an interim measure that petitioner’s representation dated 29.06.2011 should be disposed of. The said ce rtificate dated 19.05.2007 was already placed on record of this Court in the pro ceedings of the present case. There is no indication in the communication dated 15.10.2011 that the respondents had applied their mind to the above certificate, the veracity of which could have been verified from the author of the said cert ificate. 20. Thus, in view of the discussions made above and considering the objectiv e of the recruitment process pursuant to the notice dated 20.05.2011, petitioner ’s case deserves consideration. Exclusion of his name from the list of eligible candidates was not justified. Accordingly, respondents are directed to consider the petitioner as an eligible candidate by treating him to be in continuous temp orary engagement since 11.7.2005 and allow him to participate in the recruitment process pursuant to the notice dated 20.05.2011, since this court as an interim measure had directed the respondents not to fill up one post of Peon under the Bongaigaon Division of LICI pursuant to the notice dated 20.05.2011, which has a lready been taken note of in the earlier part of this order. Such consideration shall be carried out within a period of 3(three) months from the date of receipt of a certified copy of this order. 21. 22. Writ petition stands allowed. However, looking to the facts and circumstances of the case, there shall be no order as to cost.