Financial Service Executives Welfare Association & Muraleedharan C.V. v Life Insurance Corporation of India & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 17TH DAY OF NOVEMBER 2014/26TH KARTHIKA, 1936** ## **WP(C). No.9608 of 2014 (A)** **---------------------------** ## **PETITIONER(S):** **-----------------------** **1. FINANCIAL SERVICE EXECUTIVES WELFARE ASSOCIATION, REG. NO. EKM/TC/145/2014, REPRESENTED BY THE SECRETARY SAJITH.T, 'SREELAKSHMI', NEAR OLD M.C.ROAD, KODIMATHA, KOTTAYAM.** **2. MURALEEDHARAN C.V., FINANCIAL SERVICE EXECUTIVE, LIC OF INDIA, ALUVA BRANCH, ERNAKULAM, RESIDING AT CHAMPARAYIL, AROOR P.O., ALAPPUZHA.** **BY ADVS.SRI.N.DHARMADAN (SR.) SRI.M.R.VENUGOPAL** ## **RESPONDENT(S):** - **-------------------------** **1. LIFE INSURANCE CORPORATION OF INDIA, REP. BY THE CHAIRMAN, YOGAKSHEMA, P.B.NO.19953, JEEVAN BHIMA MARG, NARIMAN POINT, MUMBAI-400 021.** **2. ZONAL MANAGER, LIC OF INDIA, ZONAL OFFICE, LIC BUILDING, 153, ANNA SALAI, P.B.NO.2540, CHENNAI - 600 002.** **3. SENIOR DIVISIONAL MANAGER, LIC OF INDIA, DIVISIONAL OFFICE, JEEVAN PRAKASH, P.B.NO.177, KOZHIKODE - 683 001.** **4. SENIOR DIVISIONAL MANAGER, LIC OF INDIA, JEEVAN PRAKASH, P.B.NO.1133, M.G.ROAD, KOCHI - 682 011.** **5. SENIOR DIVISIONAL MANAGER, LIC OF INDIA, JEEVAN PRAKASH, P.B.NO.1001, PATTOM, THIRUVANANTHAPURAM - 659 001.** **6. SENIOR DIVISIONAL MANAGER, LIC OF INDIA, DIVISIONAL OFFICE, 191/114, MYTHREE ARCADE, POOTHOLE, THRISSUR -680 001.** **....2/-** **WP(C). No.9608 of 2014 (A)** ## **:2:** **7. SENIOR DIVISIONAL MANAGER,** - **LIC OF INDIA, JEEVAN PRAKASH, KURIEN UTHUP ROAD, P.B.NO.609, NAGAMPADOM, KOTTAYAM - 686 001.** **8. ADDITIONAL CENTRAL PROVIDENT FUND COMMISSIONER, DK BLOCK, SECTION-II, SALT LAKE CITY, KOLKATA - 700 091.** - **Addl.9. THE CHAIRMAN, INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY OF INDIA, 3RD FLOOR, PARISRAMA BHAVAN, BASHEER BAGH, HYDERABAD 500 004.** **(Addl.9[th] respondent is impleaded as per order in I.A.No.6638/2014 dated 27.5.2014)** **R8 BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SMT.T.N.GIRIJA, SC, EPF ORGANISATION** ## **R1 TO R7 BY ADV. SRI.S.EASWARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-08-2014, THE COURT ON 17-11-2014 DELIVERED THE FOLLOWING:** **WP(C).No. 9608 of 2014 (A)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** : - **P1TRUE COPY OF SCHEME 2007 ALONG WITH ANNEXURES.** - **P2TRUE COPY OF STATEMENT DATED 22.3.2014 RECEIVED FROM CENTRAL PUBLIC INFORMATION OFFICER.** - **P3TRUE COPY OF STATEMENT SHOWING COMPARISON OF DUTIES.** - **P4TRUE COPY OF THE NOTIFICATION DATED 27.4.2013 AND 9.4.2010 ISSUED BY LIC.** - **P5TRUE COPY OF THE NOTIFICATION OF THE STATE BANK OF INDIA DATED NIL.** - **P6TRUE COPY OF LETTER DATED 6.8.2012 ISSUED BY 8TH RESPONDENT.** - **P7TRUE COPY OF LETTER DATED 23.2.2013 ISSUED BY LIC.** - **P8TRUE COPY OF THE JUDGEMENT REPORTED IN AIR 2000 SC 1274.** - **P9TRUE COPY OF THE LETTER DATED 20.9.2012 ISSUED BY LIC.** - **P10TRUE COPY OF JUDGEMENT IN CIVIL APPEAL NOS.953-968 OF 2005 DATED 18.1.2011 OF THE HON'BLE SUPREME COURT.** - **P11TRUE COPY OF THE REPRESENTATION DATED 18.1.2014 BY IST PETITIONER.** - **P12TRUE COPY OF CERTIFICATE FOR THE YEAR 2014.** - **P13TRUE COPYOF THE LIST OF MEMBERS.** - **P14TRUE COPY OF NOTIFICATION DATED 1.7.2010.** - **P15TRUE COPY OF MEMORANDUM DATED 15.5.2014.** - **P16TRUE COPY OF MEMORANDUM DATED 15.5.2014 FILED BY THE PETITIONERS.** - **P17TRUE COPYU OF THE JUDGMENT IN W.P(C) NO.4712 OF 2011 DATED 16.8.8.2010 OF THIS HON'BLE COURT.** - **P17(A)-TRUE COPY OF PETITION I.A. NO.11292/2010 IN W.P[C] NO.4712/2010 DATED 8.8.2010.** - **P18TRUE COPY OF JUDGMENT IN W.P[C] NO.400/2011 DATED 23.5.2013 OF THIS HON'BLE COURT.** - **P19TRUE COPY OF ORDER IN W.A. NO.602/2014 DATED 9.4.2014 OF THIS HON'BLE COURT.** - **P20TRUE COPY OF NOTICE DATED 3.6.2014 ISSUED TO THE 1ST PETITIONER.** **WP(C). No.9608 of 2014 (A)** ## **APPENDIX-(2)** - **P21TRUE COPY OF CHEQUES ISSUED TO THE 1ST PETITIONER.** - **P22TRUE COPY OF LOCATION PLANS.** - **P23TRUE COPY OF THE JUDGMENT IN W.A. 602/2014 DT. 18.6.2014 OF THIS HON'BLE COURT.** - **P24TRUE COPY OF THE LETTER DATED 12.6.2014 BY 1ST PETITIONER TO THE SENIOR DIVISIONAL MANAGER.** - **P25TRUE COPY OF MEMORANDUM DATED 6.6.2014 BY 1ST PETITIONER BEFORE THE CHAIRMAN.** - **P26TRUE COPY OF NOTIFICATION DATED 16.10.2002 (INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY( LICENSING OF CORPORATE AGENTS) REGULATIONS 2002).** - **P27TRUE COPY OF COUNTER AFFIDAVIT DATED 11.2.2014 IN W.P[C] NO.4211/2013 FILED BEFORE THE ALLAHABAD HIGH COURT.** - **P28TRUE COPY OF THE MINUTES HELD WITH THE LIC DATED 29.5.2012.** - **P29TRUE COPY OF LETTER DATED 1.8.2012 BY LIC TO THE ASST. PROVIDENT FUND COMMISSIONER.** - **P30TRUE COPY OF LETTER DATED 23.12.2013 BY THE LIC.** - **P31TRUE COPY OF LETTER DATED 18.1.2013 BY LIC.** - **P32TRUE COPY OF INSTRUCTIONS FOR IMPLEMENTATION OF LIC ON 1.7.2013.** - **P33TRUE COPY OF LETTER DATED 17.12.2013 BY LIC.** - **P34TRUE COPY OF ORDER DATED 1.4.2014 ISSUED TO SRI.HARESH KUMAR BY LIC.** - **P34(A)- TRUE COPY OF ORDER DATED 1.4.2014 ISSUED TO SMT.AMPILI S THUNDIL BY LIC.** - **P34(B)- TRUE COPY OF ORDER DATED 1.4.2014 ISSUED TO SMT.SREEDEVI PRAMOD BY LIC.** **P34(C)- TRUE COPY OF ORDER DATED 1.4.2014 ISSUED TO 1ST PETITIONER BY LIC.** - **P35TRUE COPY OF JUDGMENT IN SERVICE SINGLE NO.1399/2014 DATED 5.3.2014 OF THE ALLAHABAD HIGH COURT.** - **P36TRUE COPY OF MEMORANDUM DATED 5.8.2014 FILED BY SMT.RESMY T.P BEFORE THE LIC.** - **P37TRUE COPY OF MEMORANDUM DATED 8.8.2014 FILED BY SMT.RESMY T.P. BEFORE THE LIC.** **WP(C). No.9608 of 2014 (A)** ## **APPENDIX-(3)** - **P38TRUE COPY OF SHOW CAUSE NOTICE DATED 11.8.2014 ISSUED BY THE LIC.** - **P39TRUE COPY OF SHOW CAUSE NOTICE DATED 1.9.2014 ISSUED BY THE LIC.** - **P40TRUE COPY OF MEMORANDUM DATED 2.9.2014 FILED BY SRI.VINAYAN.P.** - **P41(A)- TRUE COPY OF TOUR PROGRAMME OF SRI.NATHEESH KUMAR.S DATED 1.9.2014.** **P41(B)- TRUE COPY OF TOUR PROGRAMME OF SMT.REKHA DATED 4.8.2014.** ## **RESPONDENT(S)' EXHIBITS:** - **R1(A):- COPY OF THE DAY WISE ACTIVITY REPORT FOR THE WEEK ENDED ON 31.5.2014 SUBMITTED BY THE 2ND PETITIONER.** - **R1(B):- COPY OF THE DAY WISE ACTIVITY REPORT FOR THE WEEK ENDED ON 24.5.2014, SUBMITTED BY THE 2ND PETITIONER.** - **R1(C):- COPY OF THE DAY WISE ACTIVITY REPORT FOR THE WEEK ENDED ON 17.5.2014, SUBMITTED BY THE ND PETITIONER.** - **R1(D):- COPY OF THE DAY WISE ACTIVITY REPORT FOR THE WEEK ENDED ON 10.5.2014, SUBMITTED BY THE PETITIONER.** - **R1(E):- COPY OF THE DAY WISE ACTIVITY REPORT FOR THE WEEK ENDED ON 3.5.2014, SUBMITTED BY THE 2ND PETITIONER.** - **R1(F):- COPY OF THE LETTER DATED 6.6.2014 ISSUED TO THE 2ND PETITIONER.** - **R7(A):- COPY OF THE LETTER OF ENGAGEMENT DATED 10.1.2009 OF THE PETITIONER AS FINANCIAL SERVICE EXECUTIVE.** - **R7(B):- COPY OF THE LETTER DATED 11.6.2012 ADDRESSED TO SHRI ASOK SINGH, MEMBER, LIC OF INDIA.** - **R7(C):- COPY OF THE LETTER DATED 21.8.2012 ADDRESSED TO SHRI ASOK SINGH, MEMBER, LIC OF INDIA.** - **R7(D):- COPY OF THE REPLY LETTER DATED 20.9.2012 ISSUED BY SHRI ASOK SINGH, MEMBER, LIC OF INDIA.** **//TRUE COPY// P.A TO JUDGE** **KRJ** ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- W.P.(C) No.9608 of 2014 --------------------------------------------Dated this the 17[th] day of November, 2014 ## **JUDGMENT** The members of the Welfare Association of Financial Service Executives (FSEs for short), working under the Life Insurance Corporation of India (the respondent) within the State of Kerala, have come up before this Court aggrieved by the refusal of the LIC to grant to the FSEs regularisation in service with benefits such as regular salary, provident fund, gratuity, maternity leave etc. that are due to a regular employee of the LIC taking into account the length of service and the quality of their work in various offices of the LIC in the State. 2. The petitioners allege that the respondent Corporation, which is an instrumentality of the Central WPC No.9608/2014 2 Government having the infrastructure and facilities to make regular selection and appointment of employees on regular basis, have introduced a new scheme under its statutory power for the improvement of the business formulating and creating additional post of FSEs under the FSE Scheme in the year 2007 providing provisions for regular selection, training and appointment of FSEs with the defined duties and functions for the improvement and development of the respondent Corporation in the country. The petitioners further allege that the FSEs are duly selected, appointed and trained by the respondent Corporation strictly in terms of Ext.P1 and now, they are working in the posts of FSE in the respondent Corporation in Kerala. The minimum educational qualification for their post is graduation. Their duty is to procure insurance through the banks from their customers only. The banks would get commission for that and LIC is entitled to premium. During first year, FSEs WPC No.9608/2014 3 are paid a lump sum payment of Rs.10,000/- which is increased to Rs.21,000/- in the 7[th] year. There is a clause in the appointment order that the appointment will be contractual in nature and it is only for a period of three years. But it is liable to be extended for another period of two years. 3. The petitioners allege that the majority of the petitioners have completed 7 years and they are continuing service which would establish beyond doubt that their post is a regular post required for the LIC for its working and steady progress and improvement of the business. The petitioners further allege that the members are over aged and therefore, handicapped to seek further employment through agencies like PSC dealing with employment, if their service is terminated abruptly. 4. The petitioners further allege that the stipulation in the order of appointment that it is only a contractual employment cannot be sustained by the respondent Corporation, particularly, when the WPC No.9608/2014 4 zonal managers directly make all these appointments after regular selection through a committee constituted under Ext.P1 scheme. The petitioners further allege that similar posts under the respondent Corporation with the name and style Senior Marketing Executives who are appointed on contract basis are given additional facilities such as provident fund, gratuity etc. available to permanent employees. The above facilities are not made available to the petitioners by the LIC in spite of Ext.P6 letter dated 6.8.2012 from the Additional Central Provident Fund Commissioner. The petitioners further allege that earlier, they had submitted a memorandum to the chairman on 28.8.2012 which was replied against by Ext.P9 stating that the question of regularisation and increase of monthly remuneration, the eligibility of P.F., Gratuity etc. would be favourably considered later. 5. The petitioners further allege that the WPC No.9608/2014 5 peons appointed by the respondent Corporation on the basis of similar scheme were temporarily regularised on the basis of Ext.P10 decision of the Apex Court. It is further stated that since the request of the petitioners were not favourably considered, they again filed representations, the last of which is Ext.P11. It is also did not evoke any positive response. It is with this background, the petitioners have come up before this Court. 6. The respondent Corporation through a detailed counter affidavit resisted the writ petition. According to the Corporation, Ext.P1 is not a statutory scheme and no statutory rules were framed under any of the existing regulations framed by the respondent Corporation or by the Central Government under the provisions of the LIC Act. According to them, Ext.P1 is only an administrative instruction issued in terms of clause-28 of the FSE Scheme, 2007. Therefore, it was pointed out that for the enforcement of such rights, if any, under WPC No.9608/2014 6 Ext.P1, no writ petition would lie under Article 226 of the Constitution of India and therefore, the writ petition is liable to be dismissed on that ground alone. 7. It is further contended that the prescription of a particular set of procedure for appointment will not confer a right to claim regularisation on the appointees. According to the respondents, the procedure is prescribed only to have a fair selection from the applicants. It is further pointed out that the purpose of selection of the FSEs is to canvass policy business and their services are liable to be terminated on non-fulfillment of the minimum business as required under the scheme. It was further pointed out that there is no master and servant relationship between the Corporation and the FSEs. Such engagement is liable to be discontinued on non-fulfillment of terms and conditions of contract appointment; so contended the respondents. The scheme also envisages that WPC No.9608/2014 7 the contract of appointment is liable to be terminated on various reasons. The second petitioner has accepted the terms and conditions as per Ext.R7(a) later. While seeking appointment, the FSEs are liable to furnish a declaration that the engagement will not confer any right on such person to claim employment under the Corporation merely by virtue of their engagement as FSEs. After giving such declaration, it is not possible for the second respondent either in his individual capacity or capacity of the office bearer of the first petitioner to contend that they are entitled for regularisation in the service of the Corporation; it was contended. FSEs are not discharging the duties on a permanent post. It was further contended by the respondents that the averment of the petitioners that the nature of the work, i.e. quality, capacity etc. are equivalent to the nature of work and duties of the development officers are absolutely baseless. Therefore, the respondent Corporation prayed for a dismissal of WPC No.9608/2014 8 the writ petition. 8. I have heard Mr.N.Dharmadan, the learned Senior Counsel for the petitioners and Mr.S.Easwaran, the learned Standing Counsel for the respondent Corporation quite _in extenso_ . 9. The main argument advanced by the learned senior counsel for the petitioners is that though the appointment of the petitioners is termed as contractual, their service is actually regular since they were directly appointed by the Zonal Manager of the LIC following the statutory procedure for selection and appointment. It was further argued that the nature of the work of the petitioners as also its quality, capacity etc. are equivalent to the nature of works and duties of the Development Officers working in LIC and therefore, the petitioners are also entitled to be treated at par with regular employees like Development Officer, Office Staff etc. It was further pointed out that from the year 2007 onwards, FSE posts are available under the WPC No.9608/2014 9 respondent Corporation through out India and the petitioners are regularly working with the Corporation to the satisfaction of the LIC and therefore, they are entitled to be absorbed. Treating FSE as contractual employee is arbitrary and contrary to the provisions of the Contract Labour Abolition Act, 1970; so submitted the learned Senior Counsel. 10. The learned standing counsel for the respondent Corporation, per contra, would submit that the claim made by the petitioners is without properly understanding the scope of the terms and conditions of appointment and also the nature of the scheme which was prayed. Inviting my attention to Ext.P1, the learned standing counsel submitted that Ext.P1 would disprove the case of the petitioners that they are entitled for regularisation in service of the Life Insurance Corporation. 11. Ext.P1 scheme is not a statutory scheme. It was submitted by the learned standing counsel WPC No.9608/2014 10 for the respondent that no statutory rules were framed under any of the existing regulations framed by the respondent Corporation or by the Central Government under the powers vested upon it under the provisions of the LIC Act. 12. It is apparent on the face of Ext.P1 that it is an administrative instruction issued in terms of clause-28 of the FSE Scheme, 2007. Therefore, it was argued by the learned standing counsel for the respondent Corporation that in the absence of any statutory right to seek appointment as FSEs, no writ under Article 226 of the Constitution of India would lie for enforcement of such rights. 13. The learned senior counsel for the petitioners would submit that certain procedure for the purpose of selecting FSEs are prescribed in Ext.P1 and therefore, the petitioners cannot be treated at par with contractual employees. It is true that the petitioners were selected and appointed after following due process of selection. This, WPC No.9608/2014 11 according to the respondent, is prescribed only to have an order of selection and to have fair selection of FSEs. I see valid force in the argument advanced by the learned standing counsel for the respondent that merely because a particular set of procedure is prescribed, in the absence of a statutory scheme it is not possible to read into Ext.P1 scheme that the selection procedure would confer a benefit upon the appointees. 14. Here, it is profitable to examine the nature and duties of the FSEs. The main purpose of appointment of FSEs is to canvass policy business for the respondent Corporation. That being the case, the relationship between the respondent Corporation and the petitioners is not of master and servant and it resembles the relationship between the principal and agent. Therefore, such engagement is liable to be discontinued on nonfulfilment of the terms and conditions of contract of appointment. The appointment of FSEs can be WPC No.9608/2014 12 equated to that of an agent appointed under the provisions of the Life Insurance Corporation of India (Agents) Rules, 1972 which are liable to be terminated in terms of the provisions contained under the rules for the non-fulfilment of the minimum service required. Ext.P1 scheme also envisages that the contract of appointment is liable to be terminated on various reasons as envisaged under the conditions of appointment as well as under the scheme. 15. The learned standing counsel for the respondent Corporation made a frontal attack against the maintainability of the writ petition at the instance of the first petitioner. This writ petition is a class litigation instituted by an association of FSEs attached to the respondent Corporation with the following prayers. a) issue a writ of mandamus or other writ or order or direction directing respondents 1 to 7 to regularise FSE now working in LIC Kerala Branches taking into account their long service in the vacant posts of FSE created as per Ext.P1 scheme in terms of the statements of the WPC No.9608/2014 13 ## Chairman in Ext.P9; b) issue a writ of mandamus or other writ or direction directing the respondents 1 to 7 not to make any further contractual appointment of FSE till regularisation of all FSE working in Kerala in the existing posts of FSE in Kerala; c) issue a writ of certiorari or other writ or direction to quash the terms contractual appointments in Ext.P1 scheme since the same is illegal, arbitrary and violation of provisions Contract Labour Abolition Act, 1970 and of the LIC Act, which do not provide for such appointment on contractual basis in the LIC particularly, when the appointment of FSE is made after following a regular statutory selection process; d) declare that the petitioners are working as regular employees as FSE in LIC after having undergone regular selection process and therefore, they are entitled to get all service benefits due to regular employees of LIC such as Development Officers and office staff; e) issue a writ of mandamus or other writ or order or direction directing the Chairman to consider and dispose of the memorandum Ext.P11 and other representations favourably to the petitioners granting them regularisation in service as claimed by them w.e.f. date of service; f) issue a writ of mandamus or other writ order or direction directing the LIC and Additional Central Provident Fund Commissioner to proceed with the order Exts.P6 and P7 further and grant the benefit of Provident Fund, Gratuity etc. with all other eligible benefits to FSE working in LIC forthwith; g) issue such other orders as this Court may deem fit and necessary in the facts and circumstances of the case; WPC No.9608/2014 14 ## Addl.Prayer h) issue writ of mandamus or other writ or direction directing the respondent to implement the provisions in accordance with the terms published in Exts.P14, P15 and P16 had been filed for the same as per the instruction of the additional 9[th] respondent. ## 16. The bone of contention in this writ petition is whether the persons appointed as FSEs are eligible to be absorbed ultimately into the general track of employment under the respondent Corporation. It is settled law that class litigations by an association of employees or trade unions could be entertained only when the issues raised are of general nature. Of course, instances are there where the individual grievance of the members of the association and such general issues overlap. In the nature of the reliefs sought for in the writ petition, it is impossible to hold that the grievance of the first petitioner association as a whole could be redressed in a petition like this. If this Court venture to do that this Court would be exercising its powers of judicial review over the terms and WPC No.9608/2014 15 conditions of a contract which is not permissible. 17. It is crucial to note that while seeking the appointment as FSEs, the appointees are liable to furnish declaration that in the light of the terms and conditions of appointment, it will not confer any right on such person to claim employment under the respondent Corporation merely by virtue of their engagement as FSEs. Such a declaration was given by the second petitioner which is produced and marked as Ext.R7(a). After giving such a declaration by the second petitioner, either in his individual capacity or in his capacity as the representative of the first petitioner association, the petitioners are estopped from claiming regularisation in the service of the respondent Corporation. Here, it is relevant to note that there is an express bar under the provisions of LIC of India (Staff Regulation of 1960) which prohibits the employee of the respondent Corporation from claiming regularisation of his service merely because of his appointment on a WPC No.9608/2014 16 temporary basis. The posts of FSEs are not declared posts under the regular employment. Therefore, a person who is appointed as FSE cannot seek regularisation to any permanent post in the Life Insurance Corporation. 18. Even in cases where there is master and servant relationship, the scope of interference by Courts to specifically enforce service is limited. The general rule is that courts will not ordinarily force an employer to retain the service of an employee, who he no longer wishes to employ. However, this rule is subject to three well recognised exceptions. 19. The first exception is the case of a public servant who is dismissed from service in contravention of Article 311 of the Constitution of India. In appropriate cases, it is open to the Court to declare that such a public servant continues to remain in service, even though by doing so, in effect, the State is forced to continue to employ the servant whom it does not desire to employ. WPC No.9608/2014 17 20. Secondly, under the industrial law, jurisdiction of the Labour and Industrial Tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognised. 21. The third instance is where a statutory body acts in breach of a mandatory obligation imposed by the statute and terminates an employee. There also, the Court is having the power to declare such action invalid, even if by making such declaration the body is compelled to do something which it does not desire to do so. This position is well settled through the decisions of the Apex Court in _**S.R.Tewari**_ v _**The District Board Agra**_ (AIR 1964 SC 1680), _**U.P. State Warehousing Corporation**_ v _**C.K.Tyagi**_ (AIR 1970 SC 1244), _**Indian Airlines Corporation**_ v _**Sukhdeo Rai**_ (AIR 1971 SC 1828), _**Executive Committee of Vaish degree College, shamli and others**_ v _**Lakshmi Narain and others**_ (AIR 1976 SC 888(1). The right of an employee to WPC No.9608/2014 18 continue in service cannot be specifically enforced except under the aforesaid three circumstances. 22. As the main purpose of the appointment of FSEs is to secure maximum business of life insurance policies, their job is to canvass policies and increase the business of the Corporation, it cannot be termed as performance duties in a permanent post. 23. The petitioners are relying upon a provision in the scheme which envisages the extension of their service after the completion of three years. However, what the scheme provides is that the FSEs shall be allowed to continue as an agent, if they desire to do so. However, they can act only as direct agents either after the period of contract is over or even when the contract with them is pre-maturely terminated on reasons other than misconduct. This would give a sufficient WPC No.9608/2014 19 indication that the appointment of FSEs is not a regular appointment. The aforesaid option to continue the engagement with the Corporation as direct agent would also necessarily imply the relationship between the respondent Corporation and the FSEs is that of a principal and agent. It is also crucial to note that the contract of appointment cannot be extended beyond a period of six years which also would indicate that the FSEs are not appointed as against a regular post. 24. The petitioners have a case that the benefit of provident fund and gratuity are not being extended to the FSEs. However, it was averred in the counter affidavit filed by the respondent that the work relating to making of provisions of the provident fund and gratuity is applicable to FSEs is under process and there has been a decision on the part of the Corporation to bring the FSEs within the purview of the provident fund scheme. However, as far as the question raised in this writ petition is WPC No.9608/2014 20 concerned, the same has no relevance. 25. Referring to Ext.P9, it was submitted by the learned senior counsel for the petitioners that the chairman of the respondent Corporation has indicated that the question of regularisation and increase of monthly remuneration, the eligibility of provident fund, gratuity etc. could be favourably considered later. In answer to this, the learned standing counsel for the respondent would submit that points 1 to 4 raised in Ext.P9 are actually raised by Sri.Rama Pandey, the then working president of INTUC, West Bengal through Sri.Asok Singh, Chairman, Central Board of Workers Education, Ministry of Labour & Employment, Government of India for which reply was given by the then Managing Director Sri.Sushobhan Sarkar. Copies of the said letters are produced and marked as Exts.R7(b), R7(c) and R7(d). 26. It was strenuously argued by the learned Senior Counsel for the petitioners that the duties of WPC No.9608/2014 21 FSEs are to be treated at par with the Development Officers. It is crucial to note that the post of Development Officers is a post falling under class-2 category of Life Insurance Corporation of India Staff Regulation Act, 1960. The nature of work and duties of the Development Officers are distinct and different from the FSEs. 27. The argument that the creation of FSEs as contractual employees is arbitrary and contrary to the provisions of the Contract Labour Abolition Act, 1970 is also unacceptable as it was not open to the petitioner to raise such a contention after accepting the terms and conditions of appointment with their eyes wide open. Preamble to the aforesaid act shows that the Act has been promulgated to regularise the employees in such establishment and provide its abolition. In certain circumstances, a person shall be deemed to be employed as a contract labourer in connection with the working of an establishment when he is hired or where he is WPC No.9608/2014 22 employed by or through a contractor with or without the knowledge of the principal employer. 28. In the present case, the FSEs were appointed as per Ext.P1 administrative instructions. Therefore, it will not come within the purview of the Contract Labour Abolition Act, 1970. As the person appointed is on a contract basis and such relationship between the persons employed and person employing could only be as that of principal and agent, violation under Articles 14, 19 and 21 of the Constitution of India cannot be complained of as rightly pointed out by the learned standing counsel for the respondent Corporation. 29. Relying on Ext.P14 which is the copy of the Insurance Regulatory and Development Authority (Licensing of Corporate Agent) Amendment Regulation, 2010, it was argued by the learned senior counsel for the petitioner that the respondent Corporation is not insisting enforcement of a class in Ext.P14 clarifying that the bank with WPC No.9608/2014 23 specified person is the agent and consequently, the FSCs who are engaged to deal with the specified person of the bank would be wrongly treated as agent, though the intention was to treat the bank employee as the specified person 'Corporate Agent'. However, such a contention has no relevance at all in the case of the petitioners who are claiming regularisation in the service of the respondent Corporation. The fact that the FSEs are entitled to claim appointment as agent after the period of contract as FSEs is over, leads to the conclusion that what is envisaged in Ext.P1 is that such FSEs are not entitled for regularisation in any of the regular posts under the respondent Corporation. 30. So long as the appointment of the petitioners are not under the statutory scheme or rules, it is not possible for this Court to accept the argument that the inaction on the part of the respondent Corporation in not regularising FSEs was unfair within the domain of rules of law. WPC No.9608/2014 24 31. The power of judicial review under Article 226 of the Constitution of India cannot be invoked by the petitioners to review the terms and conditions of appointment which is purely on contract basis. A direction to the respondent Corporation by this Court to regularise the service of the petitioners would result in re-writing the contract of appointment which is not envisaged by law. On a consideration of the entire materials now placed on record, this Court is of the view that the petitioners are not entitled to succeed. In the result, this writ petition fails and accordingly, it is dismissed. **sd/- A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy ## P.S.TO JUDGE