NARESHKUMAR MANILAL PARMAR Vs. ONGC LIMITED

JUDGEMENT

(1.) By filing this appeal under Clause 15 of the Letters Patent, the appellants have challenged legality of judgment dated April 24, 2001 rendered by the learned single Judge in Special Civil Application No. 9381 of 2000 as well as in Civil Application No 2923 of 2001 by which prayers made by the appellants (1) to declare that the employment of the appellant No. 1 on contractual basis is unconstitutional; and (2) to declare that the appellant No. 1 has acquired temporary status in the services of the respondents as pharmacist and is entitled to all the benefits including time scale of pay and other perks at par with the permanent regular employees of the respondents, are rejected.

(2.) Before September, 1999, appellant No. 1 was working as pharmacist of a contractor who was engaged by the respondent to provide labour. During the year 1998, three sanctioned posts had fallen vacant in dispensary being run by the respondent, and therefore, the Administrative Officer, ONGC Mahesana had recommended to the General Manager to take an earlier action to fill in the vacant posts by addressing a letter dated January 16, 1998. Thereupon, the Western Regional Business Centre had arranged Walk-in-Interview for filling in the vacant posts, and for that purpose, an advertisement was issued in "Gujarat Samachar" daily published on September 7, 1999. In the said advertisement, it was mentioned that the respondent wanted to engage suitable and interested person on job on contract basis for one post of pharmacist at ONGC Health Centre, Mahesana for a period of one year which was extendable by another year and it was specifically stated that the job was purely contractual and did not carry" liability on ONGC for regular appointment at any stage. What was mentioned in the said advertisement was that the agreement to be entered into for job on contract basis was required to be signed by the candidate concerned. The appellant No. 1 appeared for the interview held on September 14, 1999, and was selected to be engaged for the job for one year purely on contract basis. The respondent had informed the appellant No. 1 by communication dated September 29/30, 1999 that he was selected for the post of pharmacist purely on contractual basis for one year, and that his engagement was purely temporary and liable to be discontinued at any time without notice or assigning any reason. Pursuant to the selection of the appellant No. 1 on post of pharmacist, an agreement was entered into between the appellant No. 1 and respondent on October 9, 1999, wherein the appellant No. 1 accepted the position that he was appointed as pharmacist on contract basis for one year and that the appellant No. 1 was entitled to receive remuneration of Rs. 3,600/- P. M. Further, in the said agreement, it was stipulated that there was no employer and employee relationship between ONGC and the appellant No.l. Meanwhile, regular selection process for filling in the post of pharmacist was initiated by the respondent and as the said process was likely to take considerable time, on request being made by the appellant No. 1, his contractual engagement was extended till July 31, 2001. The appellant No. 1 applied for the post of Junior Pharmacist regarding which regular selection process was initiated by the respondent, and before outcome of the said selection process, the appellants filed Special Civil Application No. 9381 of 2000 in the High Court. In the petition, the case of the appellants was that continuation of the engagement of the appellant No. 1 was on contractual basis, though he was working on clear vacancy for more than 240 days, was contrary to the provisions of Articles 14 and 16 of the Constitution as well as Industrial Disputes Act, 1947, and he was entitled to a declaration that he was a permanent and regular employee of the respondent. What was claimed by the appellants was that the agreement by which the appellant No. 1 was engaged as pharmacist was illegal and unfair, and therefore, the appellant No. 1 was entitled to all the benefits including time scale of pay and other perks at par with the permanent and regular employees of the respondent. Under the circumstances, in the petition, the appellants had prayed the Court to issue a writ or certiorari or any other appropriate writ, order or direction to declare that agreement by which the appellant No. 1 was engaged as pharmacist was unconstitutional. It was also prayed to declare that the appellant No. 1 acquired temporary status in service of the respondent and was entitled to all the benefits including time scale of pay and other perks at par with the permanent employees of the respondent.

(3.) On service of notice, affidavit-in- replies were filed by the respondent and claim advanced by the appellants in the petition was contested. In the reply it was stated that the appellant No. 1 had appeared in the interview held for filling in vacant posts of pharmacists on regular basis, but had failed, and as he was not selected, the appellants were not entitled to reliefs claimed in the petition. What was claimed in the replies was that in view of the provisions of Sec. 2(oo)(bb) of the Industrial Disputes Act, 1947, the appellants were not entitled to claim that the appellant No. 1 was temporary employee of the respondent.