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2001 Supreme(Guj) 264
Gujarat High Court
Judgename :D.C.Srivastava
GROUP GENERAL MANAGER O.N.G.C.LIMITED - Appellant
Versus
NARESHKUMAR MANILAL PARMAR - Respondent
C.A. 2823 of 2001
Decided On : 04/24/2001
Headnote:
Constitution of India - Article 14 - Contract Labour (Regulation and Abolition) Act, 1970 - Industrial Disputes Act, 1947 - Industrial Disputes Act - section 2 (oo) (bb) - Civil Application is for vacating the ad-interim order passed in SCA - No counter affidavit has been filed to this Civil Application since the SCA No. has been finally heard, the fate of this Civil Application will depend upon the fate of the Special Civil Application - Petitioner was working as Pharmacist on contract basis under the provisions of Contract Act with the respondent, ONGC Ltd - Subsequently, the petitioner was converted from contract to regular Pharmacist on contractual basis - Respondent issued an advertisement in newspaper for the post of Pharmacist - Since the petitioner was already working as Pharmacist on contract basis, accordingly he appeared before a duly constituted selection committee of the respondent and the petitioner was selected as Pharmacist out of 31 candidates who appeared for interview before the selection committee - Respondents dispensary purely on contract basis - He resumed duties - Initial appointment was for a fixed period of one year which was subsequently extended through letter dated for a further period of one year from - Respondent issued a circular dated calling for the names of departmental candidates for five posts of Junior Pharmacist - Petitioner was already working on contractual basis. He also made an application dated in pursuance to the said circular being a departmental candidate - He appeared for interview on but he was not selected in the said interview - Petitioner has therefore challenged the action of the respondent in keeping the petitioner on contractual basis against clear vacancy and avoiding issuing regular and permanent appointment order under the garb of holding the interview - Held, Courts verdict in CENTRAL INLAND WATER TRANSPORT CORPORATION LTD. v. BROJO NATH A. I. R. S. C. - Special reference was made by of para- of this judgment - Referring to mandate of Art. of the Constitution Apex Court observed that the principle is that courts will not enforce and will when called upon to do so, strike down an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between the parties who are not equal in bargaining power - In the case before me it can hardly be said that either the whole of the agreement contained in Annexure-d or any clause therein is unfair and unreasonable in its nature - Looking to the requirement and exigency of the situation, the Corporation had rightly decided to engage a Junior Pharmacist for a fixed term of one year till regular appointment is made - All terms and conditions were mentioned in the advertisement as well as in the appointment letter and extended appointment letter and also in the agreement - Consequently, it is not a case where the agreement Annexure-d or any clause in Annexure-d is unreasonable or unfair. Consequently, the Court cannot quash and set aside Annexure-d. It may also be mentioned that on the request of the petitioner his contract of service for a fixed term was extended vide para-3 (i) of further affidavit-in-reply dated and para-of additional affidavit-in-reply dated - It is also mentioned in para-3 of Civil Application that upon interviews held on and the recruitment action inviting applications from eligible individuals through the Employment Exchange and Departmental Circular candidates were selected and one Junior Pharmacist has joined the project on regular appointment on and another and the petitioner was not selected - In view of these events the interim order dated in the Special Civil Application can not be permitted to be continued - I do not find any merit in Special Civil Application result therefore is that the Special Civil Application fails and is hereby dismissed with no order as to cost - Civil Application has to be allowed and is hereby allowed - Special Civil Application has been dismissed.
( 1 ) THESE two matters are proposed to be dispose of by a common order and judgment.
( 2 ) THE prayer in this Civil Application is for vacating the ad-interim order passed in SCA No. 9381/2000 on 6-9-2000. No counter affidavit has been filed to this Civil Application. However, since the SCA No. 9381/2000 has been finally heard, the fate of this Civil Application will depend upon the fate of the Special Civil Application.
( 3 ) THE brief facts giving rise to this Special Civil Application are as follows :
( 4 ) BEFORE September, 1999, the petitioner was working as Pharmacist on contract basis under the provisions of Contract Labour (Regulation and Abolition) Act, 1970 with the respondent, ONGC Ltd. Subsequently, the petitioner was converted from contract labour to regular Pharmacist on contractual basis. On 7-9-1999, the respondent issued an advertisement in newspaper "gujarat Samachar" for the post of Pharmacist. Since the petitioner was already working as Pharmacist on contract basis, accordingly he appeared before a duly constituted selection committee of the respondent and the petitioner was selected as Pharmacist out of 31 candidates who appeared for interview before the selection committee.
( 5 ) THE petitioner received appointment letter dated 29/30-9-1999 offering appointment for the post of Pharmacist in the respondents dispensary purely on contract basis. He resumed duties on 12-10-1999. Initial appointment was for a fixed period of one year, which was subsequently extended through letter dated 13-7-2000 for a further period of one year from 1-8-2000. The respondent issued a circular dated 11/13-7-2000 calling for the names of departmental candidates for five posts of Junior Pharmacist. The petitioner was already working on contractual basis. He also made an application dated 24-7-2000 in pursuance to the said circular being a departmental candidate. He appeared for interview on 24-8-2000 but, he was not selected in the said interview. The petitioner has, therefore, challenged the action of the respondent in keeping the petitioner on contractual basis against clear vacancy and avoiding issuing regular and permanent appointment order under the garb of holding the interview. It is alleged that such action has been taken by the respondent with a view to keep the case of the petitioner under exception of sec. 2 (oo) (bb) of the Industrial Disputes Act. But, this section does not apply in case of clear vacancy. It is also alleged that the action of the respondent is discriminatory and violative of Art. 14 of the Constitution of India. It is further averred that the action of the respondent Corporation is against the certified Standing Orders, inasmuch as, the petitioner has completed 240 days in a period of 12 consecutive months and he became temporary employee, hence, he is entitled to be converted to the regular employee of the respondent and is further entitled to various benefits which the regular employees of the respondent are entitled. The interview taken by the respondent is alleged to be an eye-wash with a view to favour somebody.
( 6 ) WITH these averments, the prayer of the petitioner is for quashing the contractual agreement between the petitioner and the respondent contained in Annexure-d with declaration that the petitioner has acquired temporary status in service and is entitled to all benefits at par with the permanent and regular employees.
( 7 ) SEVERAL counter affidavits have been filed by the respondent Corporation. In short, the stand of the respondent Corporation is that the petitioner was appointed on contractual basis and he accepted the appointment fully knowing and understanding the terms of appointment, hence, a person who was appointed on contractual basis for a fixed term can not seek regularization nor he can seek absorption on permanent basis and claim monetary benefits which are given to permanent employees of the Corporation. It is also the stand of the Corporation that
