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Judgment
Lok Pal Singh, J
Since the factual matrix of the above mentioned writ petitions and law governing the field is the same, therefore, all the above mentioned writ petitions are being decided together by a common judgment and order.
For the sake of brevity and convenience, facts of Writ Petition no. 1445 of 2019 (S/S) shall be the leading case.
Petitioner is working as Physiotherapist on contract basis in Para Medical Department of Oil and Natural Gas Hospital, Dehradun. Petitioner is challenging the Advertisement No. 8/2018 (R&P) (for Non-Executives) (for Delhi & Dehradun) on the ground that as per Rules, the diploma in Physiotherapy is the requisite qualification whereas the respondents have issued the aforesaid advertisement for inviting the applications for the post of Physiotherapist and allowed the degree holder candidates also to participate in the selection process. Pursuant to the aforesaid advertisement some of the candidates, who are degree holders and some of the candidates having higher qualification to diploma holder have also participated in the selection process.
It is contended that the petitioner was initially appointed on 01.10.1999 as Junior Technical Assistant (Physiotherapy) on contractual basis. Petitioner has completed two years Diploma in Physiotherapy and is having all the requisite qualification for the aforesaid post and also having all the required qualification and experience as mentioned in the impugned advertisement. It is further contended that petitioner made a representation before the authority concerned with the prayer that services of the petitioner be regularized having considered her considerable service on contractual basis. As the grievance of the petitioner was not redressed, the petitioner along with others had approached the Central Government Industrial Tribunal (in short 'CGIT') for claiming the relief of regularization of her service in the Department along with analogues prayers. The CGIT has made a reference vide order dated 08.06.2015, which is extracted below:
The Schedule
'Whether the demand of workers (Annexure I & II enclosed) regarding permanent status in the O.N.G.C. Hospital who are working since 1996 is justified? If yes, what relief the worker will get?
(Johan Topno)
Under Secretary"
It is contended that the reference dated 8.06.2015, is pending consideration. During the pendency of the matter of regularization before the CGIT, the ONGC/respondents have issued an advertisement No. 05 of 2015 on 15-21.05.2015. In the said advertisement, the respondents have advertised the posts occupied by the contractual paramedical staff. Feeling aggrieved by the said advertisement, some of the petitioners filed writ petition no. 1861 of 2015 (S/S). The Coordinate Bench of this Court vide judgment and order dated 27.11.2018 dismissed the writ petition however it has been observed by the learned Single Judge that judgment passed by this Court will not prejudice the rights of petitioner. The relevant paragraphs of the said judgment are extracted below:
Another very important statement which has been made and rather it has been pleaded in the affidavit also in para-3 which is quoted hereunder this plea would infact dilute all the apprehension as has been expressed by the petitioners in the advertisement against the advertisement impugned herein:-
"That thus the allegation of the petitioners that the vacancies which have been advertised relate to their posts and their apprehension that on such filing of regular vacancies they will be given a see off is completely overruled. The contractual vacancies and the regular vacancies both are separate and distinct."
The recruitment which is being proposed to be made on the basis of the impugned advertisement as a matter of fact is the recruitment which has been made as a direct recruitment, and that too not on the post held by the petitioner as contractual employee but rather on the posts other than the posts which has been held by the petitioners on the contractual basis.
In view of the above statement and specific pleading raised by the respondents in their affidavit, this Court is of the view that in view of the interim order dated 04.09.2015, as well as in view of the statement made in para-3 of the affidavit, if the respondents proceeds with the selection in which the petitioners have already submitted their applications on basis of interim order and are being considered after grant of relaxation, for being considered for permanent appointment, there is no purpose or a lis survives as of now against the advertisement dated 21.08.2015.
In view of the above developments, as of now, no cause survives to be adjudicated. Thus, the writ petition is dismissed. However, this judgment will not prejudice the right of the petitioners in case if they want to raise any grievance after an adjudication is made by the Central Industrial Tribunal or after the conclusion of the regular selection process on the basis of the impugned advertisement. Interim order dated 04.09.2015 and 27.04.2018 stand vacated. However, there will be no order as to costs."
Thereafter, the petitioners have preferred a Recall Application No. 222 of 2019 alongwith Delay Condonation Application No. 3780 of 2019 for recalling of the order passed in WPSS No. 1861 of 2015 dated 27.11.2018. The Coordinate Bench of this Court vide order dated 03.04.2019 rejected the recall application. The relevant paragraph of the order dated 3.04.2019 is extracted below:
When the Writ petition was decided, a statement was made by the counsel for the respondents that the vacancy which has been notified for recruitment process either in 2015 or in 2018, they are not in relation to the posts which have been held by the petitioners on the contractual basis.
It has been further specifically pleaded in the objection filed to the recall application that even the contractual appointment granted to the petitioners has been extended by the respondents w.e.f. 1st July, 2018 to 30th June, 2020. It has further been stated that after the culmination of the process of selection, in which the petitioner has participated in pursuance to the advertisement No. 5 of 2015 dated 21.08.2015, the selection process has already been concluded and the matter has been sent for its approval to the superior authorities.
These facts as narrated in the objection to the recall application do not at all prejudice any of the interest of the petitioners as their interest have been safeguarded.
Consequently, I do not find any reason to interfere.
The Recall Application is accordingly rejected.
It is contended that after dismissal of the recall application, the O.N.G.C.-respondents have issued an Advertisement No. 8/2018 (R&P) (For Delhi & Dehradun) inviting the applications for Paramedical Staff. The petitioner has challenged the said advertisement in the present writ petition.
A counter affidavit has been filed on behalf of the respondent nos. 1 to 4. In paragraph no.4 of the said counter affidavit, it is stated that the petitioner has filed the writ petition on the basis of misconception and merely on apprehension and assumption. It is also stated that the recruitment process is still on. The same is not completed as yet, thus, the petitioner has no cause of action of filing the present writ petition. In paragraph no.6 of the said affidavit, it is also stated that the contention of the petitioner in regard to the alleged condition of advertisement whereby the degree holders have also been permitted against the said vacancy for which the essential qualification is diploma, is also misconceived. It is contended that the degree holders would not be considered in the selection, as Diploma is the requisite qualification in view of the Rules of the Advertisement.
Heard learned counsel for the parties and perused the material available on record.
Learned senior counsel for the petitioner would submit that the petitioners were appointed on contractual basis and are discharging their duties since long time, therefore, their services should be regularized. He would further submit that the petitioners also fulfilled all the required qualification and experience as mentioned in the impugned advertisement. He would further submit that the petitioners have all the requisite qualification for the advertised post. He would further submit that in the aforesaid advertisement the respondents have allowed the degree holders candidates to participate in the selection process and thereafter declared them successful and they were being called for skill test, which is wholly illegal and arbitrary. Similarly the respondents have not invited the petitioners for skill test, despite the facts that some of the petitioners have also qualified the written test and also entitled for weightage because they have been working on the different posts of Paramedical on contractual basis since long time and they were inducted in service by due process of law. He would further submit that the respondents are trying to frustrate the relief claimed by the petitioner before the CGIT. He would further submit that the advertisement has been issued by the respondent in violation of the Rules and also are adamant to consider the appointment of the decree holders on the posts advertised.
Learned senior counsel for the petitioner vehemently urged that the petitioner are working since long time on contractual basis and her appointment was made after due process by the respondent. When her grievance for regularization was not considered, the Union of the petitioner's Department was constrained to approach the CGIT. The CGIT has made reference vide order dated 8.06.2015 and, in case of regularization of the petitioner is sub judice before the CGIT, therefore, it would be an attempt by the respondent to frustrate the relief claimed by the petitioner before the CGIT.
On the other hand, learned senior counsel for the respondents would submit that the petitioner has also participated pursuant to the aforesaid advertisement dated 4.12.2018. He would further submit that ongoing recruitment exercise against the aforesaid advertisement is entirely different than that of all earlier recruitment exercise and it is based on the fresh sanction of posts. He would further submit that the earlier contractual/regular posts have not been included in this exercise. He would further submit that the age relaxation has been extended to the petitioner to the extent of the period of service rendered by her in ONGC by considering her as departmental candidate. He would further submit that the age relaxation to the departmental candidates including tenure based employees' upto the extent of their service in ONGC has been granted. He would further submit that looking at the services rendered by the candidates as contractual employees, the age relaxation will be extended. But petitioners who do not fulfill the criteria despite the age relaxation as stated will not be considered. It is further contended that on the one hand some of the petitioners have participated pursuant to the advertisement and, on the other hand, they have challenged the advertisement. It is contended that since petitioner has participated in the selection process pursuant to the advertisement, therefore, the writ petition is not maintainable.
It is further contended that earlier, some of the petitioners have filed writ petition seeking quashing of Advertisement dated 15-12 August, 2015. A Coordinate Bench of this Court dismissed the writ petition vide order dated 27.11.2018, therefore, the petitioners are re-agitating same issue which was raised in the recall application before the Coordinate Bench. The recall application of the petitioner was also rejected vide order dated 03.04.2019. In the said order it was observed that the rights of the petitioners were protected by the order of the Court, this writ petition is not maintainable.
Learned counsel for the respondents would submit that no cause of action arose to the petitioner to file the present writ petition on apprehension; however, their rights have already been protected by the judgment of Coordinate Bench of this Court, while deciding the recall application. He would further submit that the vacancies advertised by the respondents are not the same vacancies as held by the petitioners and the reference in regard to the regularization of their services is pending consideration before the CGIT. He would further submit that as the matter of regularization is still pending before the CGIT, therefore, the petitioners have to wait till the decision of the CGIT. The term of the petitioner's services have already been extended upto 30.06.2020 and the respondents are not going to disturb the services of the petitioners till the period of the services is extended or the decision of the CGIT comes, subject to its finality.
Further the statement has been made by the respondent that relaxation, which is available to the petitioner in accordance with law and undertaking has already been made in this regard. Learned counsel for the respondent would further submit that as the petitioners have participated and the respondents have considered the candidature of those petitioners who have participated and have given them relaxation. So far as the candidature of those candidates who are degree holder is concerned, as the advertisement itself, speaks that the Diploma is the criteria, therefore, the respondents are not going to consider the candidature of those candidates who applied without having the diploma in the concerned subject.
In support of his contention, he placed reliance upon judgment of Hon'ble Apex Court rendered in Oil and Natural Gas Corporation Limited Vs. Petroleum Coal Labour Union and others reported in 2015 (6) SCC 494. Paragraph no. 44 of the said judgment is extracted below:
"44. In light of the abovesaid discussion and legal principles laid down by this Court in the case referred to supra, we are of the considered view that the procedure of appointments adopted by the Corporation with respect to the workmen concerned initially appointed through contractors, subsequently through the Cooperative Society, and then vide memorandum of appointment issued to each one of the workmen concerned in the year 1988 and thereafter, continuing them in their services in the posts by the Corporation without following any procedure as contended by the learned Senior Counsel on behalf of the Corporation whose contention is untenable in law and their appointment can be said as irregular appointments but not as illegal as the same was not objected to by any other authority of the Corporation at any point of time. But their appointment in their posts and continuing them in their services is definitely cannot be termed as illegal, at best it can be called irregular. Therefore, the Certified Standing Orders of the Corporation by all means apply to the workmen concerned."
He placed reliance upon another judgment of Hon'ble Apex Court rendered in Sheo Narain Nagar and others Vs. State of Uttar Pradesh and another reported in (2018) 13 SCC 432. The paragraph no. 9 of the said judgment is extracted below:
"8. Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to consider the regularization of the appellants. However, regularization was not done. The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect on 2.10.2002. As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by the learned counsel for the respondents that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the appellants, which were taken on exploitative terms.
The High Court dismissed the writ application relying on the decision in Umadevi. But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2.10.2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in para 53 of Umadevi. Since the appellants had compelted 10 years of service and temporary status had been given by the respondents with retrospective effect from 2.10.2002, we direct that services of the appellants be regularized from the said date i.e. 2.10.2002, consequently benefit and the arrears of pay also be paid to the appellants within a period of three months from today."
Having relied upon the judgment (Supra), learned counsel for the petitioner would submit that the ONGC/respondent is in a habit not to regularize the services of its employees.
Hon'ble Apex Court in the judgment (Supra) has held that ONGC has not considered the regularization whereof it should have been considered the regulation of the petitioner but in the present case, the CGIT has directed for regularization of the employees. Feeling aggrieved, the ONGC approached to Hon'ble Apex Court. Therefore, the ratio of the judgments (Supra) is not applicable to the facts in those cases, where the regularization was decided in favour of the employees, whereas, in the present case the regularization of the petitioner is pending before the CGIT. Furthermore, the petitioner and others had earlier challenged the advertisement No. 05 of 2015 dated 15-21.05.2015 by filing Writ Petition No. 1861 of 2015 (S/S), which has already been dismissed by the Coordinate Bench of this Court. While dismissing the writ petition, the Coordinate Bench has taken care of the interest of the petitioner and others by observing that since the matter is sub judice before the CGIT, therefore, the case will not render infructuous.
Having heard learned counsel for the parties and on perusal of the material available on record, the following issues falls for consideration of this Court.
(i) As to whether after the judgment passed by Coordinate Bench dated 27.11.2018 and order on recall application dated 03.04.2019, the writ petition is maintainable for the same relief or not?
(ii) As to whether during the pendency during the proceedings before the CGIT, this Court can consider the case of the petitioner for their regularization or not?
(iii) To what relief the petitioners are entitled?
On the first issue, earlier for the same relief the Writ Petition No. 1861 of 2015 (S/S) was dismissed by the Coordinate Bench by judgment and order dated 27.11.2018 and thereafter the recall application for recalling the advertisement no. 05 of 2015 dated 15-21.05.2015 was also dismissed by Coordinate Bench vide order dated 03.04.2019. The order passed by the Coordinate Bench have attained finality and in the opinion of this Court; the same issue cannot be raised by the petitioners by filing the present writ petitions for the same relief as it is held that the same relief was sought by the petitioner by way of recall application. Thus, the writ petition is not maintainable.
On the second issue, since it is an admitted case of the petitioners that they have approached to the CGIT seeking regularization of their services, which is pending consideration before it, therefore, to my mind the petitioners cannot file this petition for the same relief as, the matter is pending consideration before CGIT. The parallel proceeding in the Tribunal or Courts is not permissible in law. Since, the prayer of the petitioner for regularization of their services is pending consideration before CGIT, therefore, the writ petition for the same relief is not maintainable and the petitioners are not entitled for any relief from this Court. It is only the CGIT, which have to take decision on the claim petition pending before it.
The third issue as is regards to what relief at this stage the petitioners are entitled. As the respondents have made statement in the counter affidavit that respondents shall consider the age relaxation in view of the fact that those petitioners who are eligible to be considered for appointment on contract basis, respondents have admitted the fact that respondents shall give relaxation in this regard to those employees.
Since, the statement at Bar has been made by learned Senior Counsel appearing for the respondents that respondents/O.N.G.C. shall consider the age relaxation to those petitioners who are appointed on contractual basis, this Court has no occasion to discredit the statement of learned Senior Counsel for the respondents. This Court while answering the question nos. 1 & 2 has held that the writ petition itself is not maintainable and the petitioners are not entitled to get any relief from this Court.
Having considered the statement made by learned counsel for the respondents, the all aforementioned writ petitions stand disposed of with the observation that respondents shall give the relaxation to the petitioner in regard to the age, who are entitled to get the age relaxation pursuant to the impugned advertisement, the respondent-O.N.G.C. shall adhere to grant the age relaxation to the petitioners. It is hoped and expected that the respondents shall complete the selection process expeditiously.
No order as to costs.