Partly allowed

Rajan K. v. the Chairman (Lic)

Kerala HC11 Jul 2018WP(C)/5843/2009

Case brief

AI extract

What is this about?

The Court directed the respondent LIC to consider the petitioners' claims for regularization as a one-time measure under the Umadevi judgment. It held that their continued service was irregular due to the delay in recruitment, granting them the option to participate in fresh recruitment with preferential treatment if regularization is denied.

What did the court decide?

Directing the Competent Authority of LIC to consider absorption under Umadevi within four months; if denied, continuation of service and preferential basis in fresh recruitment.

Rajan K. Vs the Chairman (Lic) — Company and Corporate | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940

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WP(C).No. 5843 of 2009

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PETITIONER(S):

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1.	RAJAN K., RAJEE NILAYAM, OPPOSITE KARIMUTTOM, ATTAPPALLAM, KUMILY.
2.	A.T. KURIAKOSE, ANAKALLUMKAL HOUSE, KOOROPADA PO, KOTTAYAM, NOW RESIDING AT ANAKALLUMKAL HOUSE, RUBBER BOARD.P.O., KOTTAYAM.
3.	V.S. RAJAN, KRISHNAVILAS, THONALLUR, PANDALAM PO, PATHANAMTHITTA.
4.	MINIMOL V.P., ROSE COTTAGE, RAYONPURAM PO, PERUMBAVOOR.
5.	SASEENDRA C.T., CHIRAYIL HOUSE, KARIKKATTUCHIRA, PALLIPURAM PO, CHERTHALA.
6.	UNNIKRISHNA PILLAI P.V., VADUKKUVELIL HOUSE, NALKATTIKKAL PO, ARANMULA, PATHANAMTHITTA.
7.	REGHU NATH M.K., PARANGAMMOOTTIL HOUSE, KUMPLAMPOIKA PO, NARIKUZHY.
8.	SUNITHAKUMARY K, THEKKECHADACHIYIL HOUSE, KODUMTHARA, PATHANAMTHITTA.
9.	SOWMINI .K., VETTUVAKKOTTU HOUSE WEST OTHARA PO, THYMARAVUMKARA, THIRUVALLA.
10.	BINDU.P.G., PADIYARAPARA HOUSE, KOTTATHOOR.PO, AYROOR.
11.	SHAINY P.A., POOMKURINJIYIL, AYSHAMANZIL, KUTTAPPUZHA PO, THIRUVALLA, PATHANAMTHITTA.
12.	VIJAYAKUMARAN NAIR N.B, NANDAVILASAM HOUSE, UZHAVOOR PO, KOTTAYAM.
13.	GOPINATHAN NAIR. P.G., PEZHACKAL HOUSE, VELLOOR .PO, PAMPADY KOTTAYAM.

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WP(C).No. 5843 of 2009

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14.	SOBHANA .C.M, PUNNATHANATHU HOUSE, VELLASSERY, KADUTHURUTHY PO,KOTTAYAM.
15.	JAYASREE.C.K., PRANAVAM, PARYARAM PO, ELANTHOOR, PATHANAMTHITTA.
16.	V.G. GOPALAN NAIR, PRASANTHI, NIRANAM PO, THIRUVALLA, PATHANAMTHITTA.
17.	BEENA .S, KUMARAVILASAM, KADATHOOR, K.S.PURAM PO, KARUNAGAPALLY.
18.	P.K. PREETHA, PULICKAPARAMBIL HOUSE, MUKKUDAM PO, MUTHIRAPUZHA, IDUKKI DISTRICT.
19.	GIRIJA S.R, PAITTATHUPARAMPIL HOUSE, CHITTAR PO, PATHANAMTHITTA.
20.	SAJIMON K.N, KUZHIYATHU HOUSE, AREEPARAMBU PO, KOTTAYAM DIST.
21.	K.N. MOHANAN, KUZHIYATHU HOUSE, KARINILAM PO, MUNDAKAYAM.
22.	GEETHA.K. WARRIER, MANAGATTU WARRIAM, VAKATHANAM PO, KOTTAYAM DIST.
23.	NADEIRA V.A., VAZHEPARAMBIL HOUSE, ANITHOTTAM, KANJIRAPPALLY, KOTTAYAM DISTRICT.
24.	REMA V.R., VADAKKUMPURATHU HOUSE, THOPRAMKUDY PO, IDUKKI DIST.
25.	RAJESWARIAMMAL P.O, PAINKAVIL HOUSE, VRINDAVANAM, KOTTANAD PO, RANNY, THIRUVALLA, PATHANAMTHITTA DIST.
26.	ASAMMA M.B, KOCHUMUTHALAPPALLY, PERUNNAI WEST PO, CHANGANASSERY.
27.	INDIRA T.M., THUNDATHIL HOUSE, AYYAPPANCOIL PO, MATTUKATTA, IDUKKI DIST.
28.	PREETHA PRABHAKARAN, THYPARAMPIL HOUSE, PEERMADE PO, IDUKKI DISTRICT.
29.	BABU K, AGED 40 YEARS, S/O. DEVASSIA, KECHIRA HOUSE, CHEMMANNUR, UDUMPONCHOLA VILLAGE.
	BY ADVS.SRI.C.P.MOHAMMED NIAS SRI.P.P.BIJU

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WP(C).No. 5843 of 2009

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RESPONDENT(S):

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1. THE LIFE INSURANCE CORPORATION OF INDIA, REPRESENTED BY THE MANAGING DIRECTOR 2. THE SENIOR DIVISIONAL MANAGER, LIC OF INDIA, KOTTAYAM DISTRICT, DIVISIONAL OFFICE, NAYAMBADOM, KOTTAYAM. BY SRI.S. EASWARAN, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-07-2018 ALONG WITH WPC.7195/2009 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 5843 of 2009

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT. P1	: TRUE COPY OF THE ORDER OF APPOINTMENT ISSUED BY THIS RESPONDENT IN RESPECT OF THE 6TH PETITIONER.
EXT. P2	: TRUE COPY OF THE ORDER OF EXTENSION DATED 14.1.2009 RELATING TO THE 1ST PETITIONER.
EXT. P3	: TRUE COPY OF THE ORDER DATED 5.2.2014 PASSED BY THE SUPREME COURT IN C.A.NO.2268/2011.
EXT. P4	: TRUE COPY OF THE ORDER DATED 4.12.2014 PASSED BY THE SUPREME COURT IN C.A.NO.2268/2011.
EXT. P5	: TRUE COPY OF THE ORDER DATED 20.10.2016 PASSED BY THE APEX COURT IN C.A.NO.2268/2011.

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RESPONDENTS' EXHIBITS:

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EXT.R1A	: TRUE COPY OF THE JUDGMENT O.P.NO.2009 OF 1999.	DATED 1.12.1999 IN
EXT.R1B	: TRUE COPY OF THE JUDGMENT O.P.NO.14277 OF 1999.	DATED 11.1.2000 IN
EXT.R1C	: TRUE COPY OF THE JUDGMENT W.A.NO.818 OF 2000.	DATED 1.6.2000 IN
EXT.R1D	: TRUE COPY OF THE JUDGMENT S.L.P.NO.16238 OF 2000 OF	DATED 12.4.2001 IN THE HON'BLE SUPREME COURT.
EXT.R1E	: TRUE COPY OF THE JUDGMENT W.A.NO.64 OF 2000.	DATED 11.11.2002 IN
EXT.R1F	: TRUE COPY OF THE JUDGMENT W.A.NO.2773 OF 1999.	DATED 5.1.2000 IN

/TRUE COPY/

P.S.TO JUDGE

mbr/ 02.08.2018.

C.R

DEVAN RAMACHANDRAN, J.

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...........................................

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W.P.(C) Nos. 5843, 7195, 9866 of 2009,

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31799/2013, 37402/2016 & 34593 of 2017

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...........................................................

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Dated this the 24^th day of July, 2018

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JUDGMENT

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In labour jurisprudence, the plea for regularisation by

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employees in contractual and temporary service is ubiquitous. Long periods of service is often the hypostasis on which such claims are built upon. It is often that persons accept temporary engagements, being fully aware that such appointments have fixed and certain termini; but being lured, for one part, by the prospect of immediate employment and for the greater part, under the hope of regularisation in future.

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Theoretically, temporary employment may look to provide potential advantages for unemployed individuals - for whom this might look to act as a stepping stone. But in reality, the effects are to the contrary. This is because investment in human capital is lower for temporary workers since they know that their engagement in future is uncertain leading to lower productivity. Many a time, employees on temporary work

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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arrangements experience asymmetrical employment contracts and conditions which reduces their job satisfaction and motivation. Their only hope thereafter is the potential of being regularised and this is more in cases where the temporary employment was continued without for several years and even a decade or more.

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The facts involved in these cases are also not different and the petitioners in all these cases have one common, if not singular, prayer that they be directed to be regularised in service by the Life Insurance Corporation of India, where they are presently working.

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Since the factual factors and legal contentions in all

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these cases are similar, I propose to dispose of all the above cases by this judgment.

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All the petitioners in these writ petitions are stated to be working as Assistants, on a temporary basis, under the Life Insurance Corporation of India (for short “the LIC”), ever since 1999. They have filed these writ petitions, in which even though the prayers are phrased differently, essential relief sought is that they be directed to be regularized in service by the LIC.

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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They assert that as per the judgment of the Hon'ble Supreme Court in Secretary, State of Karnataka & others v. Umadevi & others [2006 (4) SCC 1], the LIC is enjoined to consider regularisation of persons like them as a one time measure because they have all put in more than 18 to 20 years in service as Assistants.

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I have heard Sri.C.P.Muhammed Nias, the learned counsel appearing for the petitioners in W.P.(C) No.5843/2009; Sri.T.A.Unnikrishnan, the learned counsel appearing for the petitioners in W.P.(C) No.34593/2017; Sri.C.Rajendran, the learned counsel appearing for the petitioners in W.P.(C) No.7195/2009 and Sri.Eswaran, the learned Standing Counsel appearing for the LIC.

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The woodcut of the facts would show that the petitioners were appointed as Assistants under the LIC on a temporary basis and it is indubitable from the letters of appointment produced by the petitioners themselves, one of such being marked as Ext.P1 in W.P.(C) No.5843/2009.

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The case of the petitioners is that even though they were appointed on temporary basis, they were allowed by the

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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LIC to continue in service and that they have been working under them for the last more than 18 to 20 years. It is on such basis that they pray that they be regularised in service.

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In addition to this, the petitioners have also produced certain orders of the Hon'ble Supreme Court of India in Civil Appeal No.2268 of 2011, copies of which are available as Exts.P3 to P5 in W.P.(C) No.5843/2009 and according to them, in analogous circumstances as are found in the cases at hand, the Hon'ble Supreme Court has directed the LIC to absorb certain persons.

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Sri.Eswaran, the learned Standing Counsel appearing for the LIC opens his submissions by saying that the reliance placed by the petitioners on the orders of the Hon'ble Supreme Court aforementioned is completely misplaced. According to him, the factual circumstances, which led to the Hon'ble Supreme Court issuing such orders, are completely different from the factual circumstances found in these cases. According to him, the petitioners before the Hon'ble Supreme Court were armed with an order from the Industrial Tribunal and it is only therefore, that the Hon'ble Supreme Court directed the LIC to

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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consider their absorption in terms of a Scheme to be prepared by them. He further expatiates the stand of the LIC that such orders were issued by the Hon'ble Supreme Court for the added reason that the petitioners therein were appointed prior to the year 1993, when the Instructions relating to the appointment of temporary staff had not been published. He says that the LIC had, in obedience to the Hon'ble Supreme Court, formulated a Scheme which was intended only for the benefit of the petitioners before the Supreme Court, as is clear from Ext.P5 order itself and therefore, that the petitioners herein cannot claim an automatic benefit of the said Scheme. He adds to these submissions by saying that the petitioners in any case cannot obtain the benefit of Ext.P5 order because they were not appointed prior to 1993 but much later, and that by then the LIC of India (Employment of Temporary Staff) Instructions, 1993 had been brought into effect. He points out that this is also evident from the appointment orders itself, wherein it is clearly stipulated that all such appointments are made under these Instructions.

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Sri.C.P.Muhammed Nias, the learned counsel

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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appearing for the petitioners in W.P.(C) No.5843/2009 refutes the submissions of Sri.Eswaran by saying that even though the Scheme presented before the Supreme Court by the LIC was only with respect to the petitioners therein, it does not mean that the LIC is incapacitated from making a Scheme for the benefit of the petitioners herein also.

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Sri.C.Rajendran, the learned counsel appearing for the petitioner in W.P.(C) No.7195/2009 affirms the submissions of Sri.C.P.Muhammed Nias, and adds to it by saying that it is because the LIC expressly allowed the petitioners to continue in service for such a long period of time that they did so and that since most of them are now over the age of 50, if they are at this time thrown out from service their lives would be ruined and that they would obtain no other means of avocation.

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Sri.T.A.Unnikrishnan, the learned counsel appearing for the petitioners in W.P.(C) No.34593/2017 has similar submissions to make and according to him, no reasons have been stated by the LIC, in any of their pleadings, as to why they cannot at least consider the claims of the petitioners under the Mandate of paragraph 53 of Umadevi (supra).

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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On a consideration and evaluation of the submissions made before me as afore and on going through the orders of the Hon'ble Supreme Court, it becomes ineluctable that the petitioners may not obtain an automatic right to claim that they ought to be absorbed in service by the LIC under the Scheme that was presented by it before the Hon'ble Supreme Court. This is because, as has been rightly stated by Sri.Eswaran, that Scheme was intended solely for the benefit of the petitioners before the Hon'ble Supreme Court and also because they were armed with an order from the Industrial Tribunal. That apart, the petitioners before the Hon'ble Supreme Court were appointed prior to 1993 whereas the petitioners herein are concededly appointed only in the year 1999, which is after the coming into force of the 1993 Instructions relating to appointment of temporary staff.

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I, therefore, find substantial force in the submissions of Sri.S.Eswaran that it may not be possible for the LIC to absorb the petitioners herein on the basis of the scheme presented by them before the Hon'ble Supreme Court. I also notice his specific assertion that even an exercise under the mandate of

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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paragraph 53 of Umadevi's case (supra) may not be possible in this case because the appointments of the petitioners cannot be seen to be irregular, since they were appointed under the specific provisions of 1993 Rules. He vehemently asserts that the directions in paragraph 53 of Umadevi's case (supra) would apply only if the appointments are irregular but not in this case wherein appointments were made regularly and validly. In effect, the submission of Sri.Eswaran is that since the petitioners were appointed under the 1993 Rules, which were created specifically for the purpose of effecting appointments of temporary staff, the ratio of Umadevi's case (supra) cannot be applied into the facts of this case.

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Even though I have heard Sri.Eswaran as above, the fact remains that the petitioners have been in service continuously for more than 18 to 20 years without any break, though the LIC asserts that this was only because they were interdicted from terminating the petitioners' services on account of the various judgments of this Court and that of the Hon'ble Supreme Court, particularly, State of Haryana v. Piara Singh [(1992) 4 SCC 118] . The LIC thus maintains that it was only

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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by way of an indulgence that the petitioners were allowed to continue in service but that they can do so only until such time as regular recruitment is done by the LIC. According to Sri.Eswaran, it is solely because regular recruitment has been delayed that the petitioners have fortuitously been able to continue in service without being thrown out.

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This submission of Sri.Eswaran is precisely what that grips my attention. Right or wrong, the petitioners have been allowed to continue in service and there is nothing placed on record to show that it is on account of anything capable of being attributed to the petitioners herein that the regular process of appointment has not been conducted so far by the LIC. Whatever be the reason for the delay in the conduct of the regular recruitment, the indubitable fact is that the petitioners have been allowed to continue on account of such delay. I am, therefore, of the view that even though the initial appointment of the petitioners was perhaps made validly, being under the confines of the 1993 Rules, their subsequent continuation for the last 18 to 20 years will have to be construed, at the least, as being irregular service since even the LIC unequivocally takes

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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the stand that such continuation was based merely on their indulgence.

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Viewed from that perspective, perhaps the directions in paragraph 53 of Umadevi's case (supra) may apply and it may still be available to the LIC to draft a specific scheme for the purpose of absorption of persons like the petitioners as a one time measure, as sanctioned by the Hon'ble Supreme Court. That said, I hasten to add that I am not saying affirmatively that the petitioners are entitled to the benefit of regularisation under Umadevi's case (supra) but that it may be open to the LIC to consider such course, if they so choose, since the directions in Umadevi's case (supra) virtually empower establishments, which are desirous of absorbing employees who have continued in service for more than 10 years, to do so through a one time measure.

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In the afore circumstances, I am of the view that these writ petitions can be ordered, directing the competent Authority of the LIC to consider whether the petitioners herein can be absorbed into service on the strength of the directions in paragraph 53 of Umadevi's case (supra) and if it is found

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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otherwise, then they would be enjoined to continue the services of the petitioners until such time as a new recruitment process is initiated and concluded. It is so ordered.

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I further order that if the LIC takes a decision against regularisation and to conduct a fresh process of appointment then the petitioners will be entitled to be considered on a preferential basis, taking note of their large experience and that the LIC will then have to make sufficient provisions so as to protect their interests, while such fresh recruitments are made. Such provisions can either be in the form of relaxation of age and/or weightage for service, as also those which are specifically provided under the 1993 Rules.

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I clarify that the consideration of the petitioners' regularisation under Umadevi's case (supra) is completely within the discretion of the competent Authority of the LIC and that I have not issued the directions herein because I have concluded that the petitioners have any vested right for regularisation.

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The competent Authority of the LIC shall consider the absorption of the petitioners under the ambit of Umadevi's case (supra) as afore-directed, as expeditiously as is practically

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W.P.(C) Nos. 5843, 7195, 9866 of 2009, 31799/2013, 37402/2016 & 34593 of 2017

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possible but not later than four months from the date of receipt of a copy of this judgment and to communicate the consequent

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decision to the petitioners appropriately.

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These writ petitions are thus ordered.

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Sd/- DEVAN RAMACHANDRAN JUDGE

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