T CHANDRA SEKHAR Vs. CHAIRMAN

JUDGEMENT

(1.) This writ petition seeks a direction to absorb the services of the petitioner on a permanent basis in the cadre of Motor Mechanic (Automobile). The undisputed facts are that the petitioner had undergone two years training in the Advanced Training Institute in the trade of Motor Mechanic (Automobile) and a practical training for one year in M/s. Hindustan Aeronautical Limited. He was appointed as a Motor Mechanic on 3-4-1993 for a period of six months with the respondent- company, Bharat Dynamics Limited which is a wholly owned Government of India Undertaking. The first appointment was for a period of 90 days from 3-4-1993 to 2-7-1993 which was extended till 30-9-1993. Thereafter, he was appointed on 3-11 -1993 for 59 days till 31-12-1993 which was again extended up to 31-3-1994. He was then appointed on 3 -5 -1994 for a period of three months upto 2-8-1994 which was extended till 31 -10-1994. Thereafter, he appointed on 15-3-1995 for 32 days which was extended till30-9-1995. The petitioner alleges that he was stopped from attending to work orally from 30-9-1995 and at the some time, another person was appointed in his place. The facts relating to the subsequent recruitment are that on 2-8-1994 the Company called for candidates from the Employment Exchange for filling up one post of Trade Assistant (Automobile/Motor Mechanic) on a consolidated salary basis. It was stated in the requistion that the pay will be Rs. 1400/- for the first year and Rs. 1450/- for the 2nd year indicating that it was also atenure post. Subsequently, on 15-9-1994, a circular was issued to the employees who have passed ITI (Automobile) Motor Mechanic and passed NEC andhave completed two years of service as on that day to apply for the post. The petitioner, therefore, claimed that even if he was atenure employee, replacement of one tenure employee with another tenure employee was untenable and he cannot be ousted. There was an interim direction on 13-10-1995 to continue the petitioner in service if any of his juniors appointed subsequent to 3-4-1993 are continuing in service. The respondents filed a petition to vacate the interim order, and hence, the main case is being disposed of.

(2.) In the counter affidavit, it was stated that the petitioner had been engaged on casual basis initially and on a tenure basis later because the work evaluation was not complete, and thereafter, when the applications were called for only one application came from the in service candidate and 20 from the Employment Exchange out of which two persons were selected. It is also stated that though only one post was advertised, it was decided to recruit both of the candidates. It is further stated that subsequently a requistion was made for three more vacancies as well as one more post, but thereafter the selection process was abandoned as the job evaluation was not complete. According to the respondents, since the petitioner was not sponsored by the Employment Exchange and he did not apply for the advertisement for internal candidates, he had no right to question the subsequent recruitment. It is further stated in an additional counter affidavit that the petitioner had not worked continuously so as to claim any regularisation as he was only on a tenure basis which had lapsed from time to time.

(3.) The learned counsel forthe petitioner submitted that the respondents were following an unfair labour practice of keeping the workmen on tenure basis when continuous work was available and denying him the benefit of regularisation, while, at the same time, not advertising aregular post for filling up the vacancy. He pointed out that as long as there is no regular recruitment, even a daily wage or temporary employee was entitled to be continued without disruption. He submitted that the petitioner, is therefore, entitled to be continued in the service since the replacements were not senior to him and had not recruited for a regular vacancy.