Madan Lal And Others vs Oil And Natural Gas Corporation And Others

Ramesh Ranganathan, CJ

Heard Mr. M.C. Pant, learned Counsel for the appellants and Mr. Rakesh Thapliyal, learned Senior Counsel assisted by Mr. Piyush Garg, learned Counsel for the respondents.

These two appeals are preferred by the petitioners against the common order dated 26.08.2019 passed by the learned Single Judge in WP (S/S) No.1483 of 2019 and WP (S/S) No. 1521 of 2019.

These two writ petitions were heard along with WP (S/S) No.1445 of 2019 and, by the order under appeal dated 26.08.2019, the learned Single Judge disposed of the writ petitions observing that the respondents shall give relaxation to the petitioners, with respect to age, to those who are entitled to get age relaxation pursuant to the impugned advertisement; and the ONGC shall adhere to the age relaxation to the petitioners.

This case has had a chequred history. The appellants-writ petitioners are all contract labourers whose services were engaged by the ONGC. A reference was made to the Central Government Industrial Tribunal, vide order dated 08.06.2015, on the question "Whether the demand of workers regarding permanent status in the O.N.G.C. Hospital, who are working since 1996, is justified? If yes, what relief the workers should get?" The dispute is now pending adjudication before the Central Government Industrial Tribunal, Delhi. While matters stood thus, the ONGC issued an advertisement on 15-12.08.2015 wherein the posts, occupied by the contractual Paramedical Staff, were also advertised. On the advertisement being subjected to challenge in WP (S/S) No.1861 of 2015, an interim order was passed by a learned Single Judge, pursuant to which the ONGC gave an undertaking to the Court stating that relaxation of age would be given in the selection process, to all the petitioners, in terms of the interim order passed by this Court.

A learned Single Judge of this Court, recording this submission made on behalf of the ONGC, dismissed the writ petition. After the writ petition was disposed of by order dated 27.11.2018, the ONGC issued another advertisement on 04.12.2018 wherein they confined the age relaxation, to the existing contract labourers, only to the extent of the service rendered by them in the ONGC. Consequently, those employees engaged as contractual labourers, whose initial engagement by the ONGC was after they had crossed the maximum age limit prescribed for appointment to regular posts, were not given the benefit of relaxation of age.

Questioning, both the earlier and the later advertisement, the petitioners filed Recall Application No.222 of 2019, along with an application seeking condonation of delay. The learned Single Judge rejected the recall application by order dated 03.04.2019. In the recall order, the learned Single Judge noted the submission urged on behalf of the ONGC that extension was given to the contractual labourers from 1. 07.2018 to 30.06.2020; and after culmination of the process of selection, in which the petitioners had participated pursuant to the advertisement dated 21.08.2015, the matter had been sent for approval to the superior authorities. The learned Single Judge held that the petitioners interests had been sufficiently safeguarded, and the impugned advertisement had caused no prejudice to them. The appellants-writ petitioners chose not to challenge the order dated 03.04.2019 passed by the learned Single Judge in Recall Application No.222 of 2019, and have instead filed the present writ petitions.

In the order under appeal, the learned Single Judge noted the submissions urged by Shri Rakesh Thapliyal, learned Senior Counsel appearing on behalf of the ONGC, that the on-going recruitment exercise, against the advertisement issued on 04.12.2018, was entirely different from that of the earlier recruitment exercise, and was based on a fresh sanction of posts; the earlier contractual/ regular posts had not been included in this exercise, though some age relaxation has been extended to the petitioners by considering them as departmental candidates; thus, the petitioners, who did not fulfill the criteria despite age relaxation, would not be considered; and while some of the petitioners had participated pursuant to the advertisement, they had, on the other hand, challenged the advertisement itself. The learned Single Judge also noted the submission of the learned Senior Counsel that the vacancies advertised by the respondents were not for the same posts held by the petitioners; and a reference, regarding regularization of their services, was pending consideration before the CGIT.

The learned Single Judge disposed of the writ petitions, by the order under appeal, holding that the order passed by the learned Single Judge in WP(S/S) No.1861 of 2015 dated 27.11.2018, and thereafter in the recall application dated 03.04.2019, had attained finality; and the same issue cannot be raised by the petitioners by filing the present writ petition for the same relief. The learned Single Judge further held that petitioners had approached the CGIT seeking regularization of their services, which was pending before it; and they could not invoke the jurisdiction of this Court seeking the same relief. It is in such circumstances that the writ petition was disposed of with the aforesaid directions.

It has not been disputed before us that the order passed by the learned Single Judge in WP (S/S) No.1861 of 2015 dated 27.11.2018, and the order in Recall Application No.222 of 2018 dated 03.04.2019, have attained finality.

Shri M.C. Pant, learned counsel for the petitioners, would submit that the contentions raised in the writ petitions (the order passed in which is the subject matter of the present appeals) was not raised in the earlier writ petitions, or in the recall application; and while the advertisement dated 04.12.2018 was no doubt put in issue in Recall Application No.222 of 2018, the contention now urged in the present writ petitions was not put in issue in the Recall Application also. Explanation IV to Section 11 CPC stipulates that "any matter which might and ought to have been made the ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such a Suit."

In Forward Construction Company and others Vs.Municipal Corporation of Greater Bombay, AIR 1986, Supreme Court 391-the Supreme Court applied Explanation IV to Section 11 CPC to proceeding under Article 226 of the Constitution of India, and held that contentions, which could have been raised but were not raised, must be deemed to have been raised and rejected. As the contentions raised in the present writ petition could have been raised in the earlier Recall Application, the petitioners should not have permitted the order in the Recall Application to attain finality. As the order passed therein has attained finality, these contentions cannot now be urged in subsequent writ proceedings.

The dispute raised by the petitioners, for regularization of their services, is the subject matter of examination before the Central Government Industrial Tribunal, New Delhi. Their entitlement for regularization would not suffer any prejudice by the subsequent selection process undertaken by the ONGC.

As is evident from the order under appeal itself, it is also the case of the ONGC that the posts which were advertised on 04.12.2018 are different from the posts which are occupied by the appellants-writ petitioners. Further the services of the contract labourers have been extended till 30.06.2020. The petitioners cannot, therefore, be said to have suffered any prejudice on account of the advertisement issued by the ONGC on 04.12.2018.

Suffice it to make it clear that neither the order under appeal, nor the order now passed by us, shall disable the writ petitioners, in case their services are not extended later, beyond 30.06.2020, pending adjudication of the dispute by the Central Government Industrial Tribunal, to avail their judicial remedies in accordance with law.

Needless to state that in the light of the submissions made on behalf of the ONGC before the learned Single Judge, that the vacancies advertised on 04.12.2018 are distinct from the posts occupied by the petitioners, filling up of the posts in terms of the advertisement dated 4.12.2018 shall not prejudice the petitioners' rights in the dispute referred, to the Central Government Industrial Tribunal, for adjudication.

Both the appeals stand disposed of accordingly. No costs.