Gujarat High Court
Shakeel vs Oil on 11 January, 2011
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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SCA/6659/1987 37/ 37 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6659 of 1987
WITH
CIVIL
APPLICATION No. 9055 of 2010
IN
SPECIAL
CIVIL APPLICATION No. 6659 of 1987
WITH
SPECIAL
CIVIL APPLICATION No. 7767 of 1988
WITH
CIVIL
APPLICATION No. 9054 of 2010
IN
SPECIAL
CIVIL APPLICATION No. 7767 of 1988
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ Sd/-
===================================
1. Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2. To be referred to the Reporter or not ?
NO
3. Whether their Lordships wish to see the fair copy of the judgment ?
NO
4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO
5. Whether it is to be circulated to the civil judge ?
NO =================================== SHAKEEL M SAEED & 34 - Petitioners Versus OIL & NATURAL GAS COMMISSION & 4 - Respondents =================================== Appearance :
1. Special Civil Application No.6659 of 1987 MR SHALIN N MEHTA for Petitioner Nos.1 - 5, 7,9 - 15,17 - 19,21 - 23, 25,27 - 34.
MR AK CLERK for Petitioner Nos.6, 26, 35.
DELETED for Petitioner Nos.8, 16, 20, 24.
MS KJ BRAHMBHATT for Respondents.
2. Special Civil Application No.7767 of 1988 MR SHALIN N MEHTA for Petitioner Nos.1, 3 to 9.
MR AK CLERK for Petitioner No.2.
MS KJ BRAHMBHATT for Respondents.
3. Civil Application Nos.9054 & 9055 of 2010 MR AK CLERK for Applicants.
MS KJ BRAHMBHATT for Respondents.
=================================== CORAM :
HONOURABLE MR.JUSTICE K.A.PUJ Date : 11/01/2011 COMMON CAV JUDGMENT Since common issues are involved in all these petitions as well as Civil Applications and since they are heard together, they are being disposed of by this common judgment and order.
Special Civil Application No.6659 of 1987 is filed by the petitioners under Article 226 of the Constitution of India praying for the declaration that the petitioners are entitled to be treated as direct employees of the respondent Commission and seeking further direction to the respondents to treat the petitioners as such for all purposes including salary, seniority, length of service etc. The petitioners have also prayed for the declaration that the respondent Commission is not entitled to employ the petitioners for a period of more than one year on temporary / casual or through the Labour Contractor and that the said practice is unfair labour practice within the meaning of Item No. I-10 of Schedule V of the Industrial Disputes Act, 1947 and permanently restraining them from treating the petitioners as the employees of labour Contractor, for any purposes whatsoever. The petitioners have further prayed for the direction to the respondents to treat the petitioners as direct employees of the Commission for all purposes from the first date of their employment. The petitioners have also prayed for the direction to the respondents to give full equality of pay and service conditions to the petitioners compared to other regularly employed persons who are placed in a time scale and further directing the respondents to give arrears of salary and encashment of leave etc. on the above basis. The petitioners have also sought for the declaration that Clause No.6 of Annexure E and similar Clause of Annexure F - V are unconstitutional, illegal, unconscionable, opposed to public policy and violative of Articles 14 & 16 of the Constitution of India. Alternatively, the petitioners have prayed for the direction to the respondents to permanently stipulate to their labour Contractors that the petitioners shall have to be continued in the employment as a term in the labour contract and further restraining the said respondents from terminating the services of the petitioners.
More or less, similar prayers are made by the petitioners of Special Civil Application No.7767 of 1988.
Civil Application No.9054 of 2010 is filed by nine applicants seeking direction to the respondents to permit the applicant No.2 i.e. Patel Rameshbhai Chimanbhai to work and perform his duty by issuing necessary gate passes as was being done upto 30.07.2010. The direction was also sought for to the respondents to pay wages from 01.04.2009 to 30.07.2010 to the applicant No.2 forthwith.
Similarly, Civil Application No.9055 of 2010 is filed by the applicant seeking direction to the respondents to permit the applicant to work and perform his duty by issuing necessary gate passes as was being done upto 30.07.2010 and seeking further direction to the respondents to pay wages from 01.04.2009 to 30.07.2010 to the applicant forthwith.
In both the main petitions, this Court has passed an order on 18.11.2010. It was observed therein that so far as Special Civil Application No.6659 of 1987 is concerned, Mr. Shalin Mehta, learned advocate appears on behalf of all the petitioners except petitioner Nos.6, 26 & 35. For petitioner Nos.6, 26 & 35, learned advocate Mr. A. K. Clerk is appearing. This Court has also recorded the submission of Mr. Shalin Mehta that except these three petitioners, all other petitioners who are represented by him, have no grievance now and hence, the said petition no longer survives qua those petitioners who are represented by him. The Court has further observed that in relation to Special Civil Application No.7767 of 1988, learned advocate Mr. Shalin Mehta appears on behalf of all the petitioners except petitioner No.2. For petitioner No.2, learned advocate Mr. A. K. Clerk appears. This Court has also recorded the submission of Mr. Shalin Mehta that except petitioner No.2, all other petitioners who are represented by him, have no grievance now and hence, the said petition no longer survives qua those petitioners who are represented by him.
In the above view of the matter, Special Civil Application No.6659 of 1987 survives only in respect of petitioner Nos.6, 26 & 35 who are represented by Mr. A. K. Clerk and so far as Special Civil Application No.7767 of 1988 is concerned, it survives only qua petitioner No.2 who is represented by Mr. A. K. Clerk.
Heard Mr. A. K. Clerk, learned advocate appearing for the petitioners in the main petitions as well as Civil Applications and Ms. Kalpana Brahmbhatt, learned advocate appearing for the respondent - Commission.
The main contentions raised by Mr. Clerk on behalf of the petitioners are that the petitioners are allegedly employed through Contractors. They were appointed against permanent vacancies and were working directly under ONGC. The petitioners are working for the last more than 18 years with the respondent Commission. Except petitioner Nos.6, 26 & 35 in Special Civil Application No.6659 of 1987 and except petitioner No.2 in Special Civil Application No.7767 of 1988, all other petitioners are either regularized in service by the respondent Commission or have left or died. Petitioner No.35 is working as Stenographer and petitioner Nos.6 & 26 are working as attendants since 1985 and 1986 respectively. The categories of Steno Typist / Stenographer and attendants are the categories in which employment of contract labour is prohibited by the Notification dated 08.09.1994. Petitioner Nos.6, 26 & 35 in the first petition and petitioner No.2 in the second petition are, therefore, entitled to be regularized like other petitioners.
Mr. Clerk further submitted that the petitioners were denied regularization only on the ground that they are over aged at the time of initial recruitment through alleged Contractor. At the time of regularization, other petitioners who have been regularized were also over aged like the petitioners. The petitioners are, therefore, discriminated against on the ground that they were over aged at the time of initial entry. He has, therefore, submitted that when the petitioners have all worked for more than 18 years and all the petitioners were over aged at the time of regularization, the respondent Commission cannot discriminate against the petitioners only by denying them the benefit of the regularization. He further submitted that petitioner No.26 is also a land looser who lost his land to the respondent Commission to the respondent's Hazira Project and belongs to OBC Category. The respondent Commission has given benefit of age relaxation to other petitioners at the time of regularization and the same benefit should be extended to the petitioners. He further submitted that in the affidavit-in-sur-rejoinder, at page 140, the respondent Commission has admitted that the petitioner Nos.5,7,12,14,19,23,29,30 and 31 were not age barred at the time of their initial engagement through Contractor whereas in affidavit-in-reply at page 121, it is admitted that petitioner Nos.1,3,4,5,7,8,12,13,14,16,17,19,20,23, 24,27,28,29,30,31 & 34 are regularized and appointed by the respondent Commission. It is, therefore, admitted that some of the petitioners have been regularized even though they were age barred at the time of their initial entry through alleged Contractor. Mr. Clerk, therefore, submitted that denial of benefit of age relaxation and regularization to the petitioners only is absolutely arbitrary and discriminatory and violative of Articles 14 & 16 of the Constitution of India. In support of his submissions, he relied on the following judgments of the Apex Court :-
In the case of S. M. Pandit and others V/s. The State of Gujarat and others, AIR 1972 SC 252, the Apex Court held that when the persons are merged into one class, there cannot be any discrimination between them on the basis of their birth mark.
In the case of S. B. Patwardhan and another V/s. State of Maharashtra and others, AIR 1977 SC 2051, the Apex Court held that the seniority cannot be made to depend upon a fortuitous circumstances of confirmation. At the time of regularization, all the petitioners were over aged or age barred. Therefore, all the petitioners form a single class and are exactly similarly situated. The respondent Commission has discriminated against the petitioners only on the ground that they were age barred at the time of initial entry. The action of the respondent Commission is, therefore, violative of Articles 14 & 16 of the Constitution of India.
The Apex Court in the case of ONGC Limited V/s. Engineering Mazdoor Sangh, 2007 (1) SCC 250 has directed that till such time as these 153 workmen are not absorbed against regular vacancies in the category concerned, no recruitment from outside will be made by the appellant and to regularize 153 workmen as quickly as possible and preferably within a period of two years.
The Apex Court in the case of Yamuna Shankar Sharma V/s. State of Rajasthan and others, 2007 (2) SCC 611 held that considering the case of the employee for regularization, due weightage should be given to the past services rendered by the employee and he should not be denied regularization on the ground that he became over aged.
The Apex Court in the case of Mineral Exploration Corporation Employees' Union V/s. Mineral Exploration Corporation Limited and another, 2006 (6) SCC 310 held that it shall be proper to regularize the services of the workmen who have worked for several years. While issuing certain directions, the Court has also observed that the absorption of the persons who have worked for longer period as contingent / adhoc / temporary workmen shall be preferred to those who have to be in shorter period of work.
Mr. Clerk further submitted that petitioner Nos.1, 3,4,8,13,16,17,20,24,27,28 and 34 were appointed and regularized in the Commission even though they were age barred at the time of initial entry through alleged Contractor. He has, therefore, submitted that when other petitioners who were also age barred at the time of initial entry have been regularized, the same benefit cannot be denied to the petitioners.
Similarly, petitioner No.2 in Special Civil Application No.7767 of 1988 is not regularized whereas petitioner Nos.1,4,5,7 & 9 are appointed and their services were regularized by relaxing the age at the time of regularization. He has, therefore, submitted that all the petitioners in both the petitions are required to be directed to be regularized by giving them the benefit of age relaxation which has been given to other petitioners of both the petitions. All the petitioners are similarly situated and the respondent Commission cannot be permitted to discriminate between the petitioners.
Ms. Kalpana Brahmbhatt, learned advocate appearing for the respondent Commission in both the petitions, on the other hand, has submitted that petitioner Nos.6,26 & 35 are employees of the Contractor, namely, M/s. Hazira Kantha Vistar Vikas Sahakari Mandali Limited. The Petroleum Employees Union and another had filed Special Civil Application No.2573 of 1997 before this Court claiming absorption in ONGC on the basis of the Notification dated 08.09.1994. In the said petition, Hazira Kantha Vistar Vikas Sahakari Mandali Limited was party - respondent No.8. By the oral judgment dated 05.09.1997, this Court partly allowed the said petition and directed the Regional Labour Commissioner (Central), Ahmedabad to verify the cases of the employees and find out whether the employees belonged to or not to the categories in respect of which the employment of contract labour has been prohibited by the Government of India under Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970, vide Notification dated 19.12.1976 and 08.09.1994. Accordingly, the Regional Labour Commissioner (Central), Ahmedabad had gone into an independent exercise of adjudicating the dispute and also submitted the report. The cases of petitioner Nos.6, 26 & 35 were also considered by the Regional Labour Commissioner (Central), Ahmedabad. Their names appear in Annexure A attached to the said report. It is found that petitioner No.35 is covered under Notification dated 08.09.1994 of prohibition issued by the Government of India, while the petitioner Nos.6 & 26 are found not attending to duties or working on the categories of employment prohibited under the said Notification. The names of petitioner Nos.6 & 26 appears in the said list at Annexure 2 attached to the said report. Thus, the case of petitioner Nos.6, 26 & 35 is squarely covered by the oral order dated 05.09.1997 passed in Special Civil Application No.2573 of 1997 read with the report of Regional Labour Commissioner (Central), Ahmedabad dated 16.03.1988 and having once got their dispute adjudicated from this Court in the asid petition, they cannot have second round for the same issue / dispute.
Ms. Brahmbhatt further submitted that petitioner Nos.6, 26 & 35 are not working through the Contractor in ONGC in prohibited category. This can be clearly seen in the contract entered between the ONGC and the Contractor. The said contract was for documentation and other allied services at ONGC, Hazira Project and for a period of 22 months w.e.f. 01.06.2003 to 31.03.2005. It has been extended upto 31.03.2006. Condition No.19 of the said Contract categorically states that the Contractor shall not undertake the job of deploying workmen of categories which have been prohibited under Section 10 (1) of the Contract Labour (Regulation and Abolition) Act, 1970. The said petitioners not being engaged through Contractor in the prohibited categories, they have no case against ONGC. The plea of the said petitioners about direct absorption without any procedure whatsoever relying upon the decision of the Apex Court in the case of Air India Statutory Corporation V/s. United Labour Union and others, AIR 1997 SC 645 cannot be sustained as the said judgment has been overruled by the later decision of the Apex Court in the case of Steel Authority of India Limited and others V/s. National Union Water Front Workers and others, 2002 (1) GLR 792 wherein it is held that with the abolition of the contract labour system, no direct relationship of employer and employee is created between the principal employer and workman.
Ms. Brahmbhatt further submitted that though the ground regarding large tenure of their services was raised by the petitioners, the perusal of Annexure A to the petition, makes it ample clear that joining date of petitioner No.6 is shown as December, 1985, that of petitioner No.26 is shown as 03.10.1986 and that of petitioner No.35 is shown as 13.01.1987. For the sake of argument, if one takes this record as true, then also, it cannot be termed as long tenure as the present petition itself is filed in the year 1987 / 88. Thus, the plea about long tenure of the petitioners is false and hence, the petitions deserve to be dismissed. She further submitted that the respondent Commission is not indulging in any unfair labour practice. The petitioners have been continued till date by the Contractor in compliance with the interim order of this Court and that period cannot be added now for sustaining the plea as to long tenure.
With regard to the petitioners contention that they are not given equal treatment with that of the other petitioners, Ms. Brahmbhatt has submitted that all the petitioners were considered by ONGC for regular appointments as per the prevailing ONGC (Recruitment and Promotion) Regulations, 1980 as modified w.e.f. 01.01.1997, made in exercise of the powers conferred by Section 32 of the Oil and Natural Gas Commission Act, 1959 as well as the age relaxation criteria adopted by ONGC in terms of agreement reached in the year 1991. The age relaxation was considered on merits of the case subject to the age being within the prescribed limits on the date of offering services in ONGC through the Contractor. The said petitioners at Serial Nos.6, 26 & 35 were not considered for appointment in ONGC as they were age barred. She further submitted that through inadvertence, the petitioner No.35 was issued interview call, but on coming to know about he being over aged, was not interviewed. The said petitioners have made vague allegations that ONGC has appointed petitioner No.5, 7, 12, 14, 19, 23, 29, 30, 31 & 34, though being over aged at the time of their recruitment in ONGC are given age relaxation and given permanent appointment in ONGC. They have not produced any evidence whatsoever and, therefore, in absence of the same, the said plea has no relevance. She further submitted that petitioner Nos.5, 7, 12, 14, 19, 23, 29, 30, 31 and 34 were not age barred at the time of their initial engagement in ONGC through Contractor and, therefore, after following the due procedure and giving age relaxation benefit as per the agreed criteria, they were given appointment in ONGC. Thus, no discriminatory treatment is given by the ONGC to any of the petitioners. While considering the petitioners for appointment in ONGC, ONGC was required to follow the R & P Regulations, 1980 as modified w.e.f. 01.01.1997 framed under the ONGC Act and the said view is also expressed in the judgment of the Apex Court reported in 2002 (3) GLR 2010.
With regard to the petitioners' contention that ONGC has failed to give equal pay to them, Ms. Brahmbhatt has submitted that the petitioners were recruited by the Contractor and not by the ONGC. The petitioners are under direct supervision and control of the Contractor and the Contractor only pays to them. Thus, the petitioners are not being the employees of the ONGC, there is no question of any failure on the part of ONGC in the matter of giving equal pay to the petitioners as mandated by Articles 14, 16 & 39
(d) of the Constitution of India.
So far as the claim of the petitioner No.26 as a land looser for the purpose of the ONGC is concerned, Ms. Brahmbhatt has submitted that the same is not tenable. The policy of the Commission to employ such persons on permanent basis was in pursuance of the policy decision taken by the Union of India. The said policy was withdrawn by the Union of India. Not only that, as the petitioner No.26 being the employee of the Contractor and not the ONGC, whether such a policy exists or not is not relevant. In the order dated 22.02.1991 passed in Special Civil Application No.2376 of 1988, it is held by this Court that the land looser cannot be the criteria for getting the job.
Ms. Brahmbhatt further submitted that the claim of the petitioners for regularizing their services is illegal and bad. The petitioners are the employees of the Contractor. They are not being the employees of the ONGC, they cannot be regularized. She further submitted that 21 out of 35 petitioners were not absorbed or regularized but their appointments on permanent basis were made. They were considered by the ONGC for appointment in ONGC as per the Rules and Regulations of the ONGC and when they satisfied the same, they were given permanent appointment in ONGC. No directions for regularizing the employees of the Contractor as the employees of the ONGC can be given. She has relied on the decision of the Apex Court in the case of Mahendra L. Jain and others V/s. Indore Development Authority and others, 2005 (1) SCC 639 wherein it is held that regularization cannot be claimed as a matter of right. The case of the petitioners is also directly covered by the judgment of this Court in the case of M. M. Ashrafi V/s. Oil & Natural Gas Commission and others, 1996 (3) GLR 543. By the said judgment, 8 similar cases were decided by this Court. The said cases were filed by the petitioners who were employed by Contractors to work in ONGC and they had claimed all the reliefs as claimed in the present petitions. They had further sought directions for framing a Scheme for absorbing them. They were also granted similar interim relief as in the present case. The Learned Single Judge of this Court dismissed the petition but issued directions to the ONGC to frame the Scheme for absorption of the employees who had worked for a considerable long period as a part of contract labour system. She has, therefore, submitted that the present petition also requires to be dismissed on this very ground. She has, however, submitted that ONGC had filed Letters Patent Appeal No.804 of 1996 to 807 of 1996. The said Letters Patent Appeals were disposed of by the Division Bench of this Court on 03.07.2006 whereby the direction to frame a Scheme for absorption of the contract Labourers was not disturbed by the Court.
Ms. Brahmbhatt, for the proposition that regularization of services cannot be directed in the petition under Article 226 of the Constitution of India, has relied on the decisions of the Apex Court, in the case of State of Haryana and others V/s. Piara Singh and others, 1992 (4) SCC 118, and in the case of Gujarat Electricity Board, Thermal Power Station, Ukai V/s. Hind Mazdoor Sabha and others, AIR 1995 SC 1893. She further relied on the decision in the case of Nitinkumar Nathalal Joshi and others V/s. Oil & Natural Gas Corporation Limited and others, 2002 (3) GLR 2010 and 2002 (1) GLR 792 for the proposition that abolition of contract labour would not automatically make the contract labour employees as the employees of the principal employer. She further relied on the decision of the Apex Court in the case of MD, U.P. Land Development Corporation and another V/s. Amar Singh and others, (2003) 5 SCC 388 for the proposition that when the employees are working under a Scheme or Project, they are not entitled to claim regularization and once the Project comes to an end, the services of the employees also comes to an end.
So far as two Civil Applications are concerned, Mr. Clerk has insisted that these two Civil Applications should be heard first as the orders passed therein have not been complied with by the respondent. Since the respondent has committed the contempt of this Court by flouting the orders, the contempnor has no right to be heard in the main petitions till the orders are complied with. Mr. Brahmbhatt, however, has submitted that there is no violation of Court's order and since the petitions are of the year 1987 / 1988, they are to be heard first. Considering the rival submissions, the Court has thought it fit to hear all the four matters together.
While moving Civil Applications in both the main petitions, Mr. Clerk submitted that the applicants worked through alleged Contractor upto 31.03.2009. The contract of M/s. Hazira Kantha Vistar Vikas Sahakari Mandali Limited came to an end on 31.03.2009. Accordingly, till 31.03.2009, the applicants were issued gate pass through this Mandali. However, from 01.04.2009, there is no Contractor as the ONGC has not finalized the tender and has not given contract to any party. Though there is no Contractor, the applicants were allowed to perform their duties by ONGC by directly issuing gate passes. The applicants performed their work / duties from 01.04.2009 to 30.07.2010, but have not been paid any salary or wages as the ONGC has not finalized the contract and there is no Contractor. From 31.07.2010 onwards, ONGC has not issued gate pass to the applicants and has not allowed the applicants to work which is absolutely illegal and violative of the interim order passed by this Court. It is, therefore, submitted that the respondent Commission cannot be permitted to change the status-quo and deprive the applicants of their rights without obtaining prior permission of this Court.
Further affidavit was filed on 31.08.2010 wherein it is stated that on 10.08.2010, this Court passed an order granting prayer 9 (a). The order was passed after hearing the learned advocate appearing for the respondents. Thereafter, the applicants went to resume their duties on 11.08.2010, but they were not permitted to enter the premises by CISF Personnel, as the respondent Commission has not issued the gate pass. Despite their request to CISF personnel to allow them to meet the Executive Director and to give him a copy of the order passed by this Court, the applicants were not allowed to enter the premises. Therefore, on 12.08.2010, the applicants addressed a letter to the Executive Director to issue gate pass to them and to allow them to work in compliance of the order dated 10.08.2010. Thereafter also, on 13.08.2010, 16.08.2010 and 17.08.2010, the applicants went to resume duties but they were not allowed to enter the premises by CISF personnel. After great persuasion, the applicants were issued gate passes but they were of visitor passes and not the usual gate passes. On the basis of this, Mr. Clerk has strongly contended that the respondents have flouted the order dated 10.08.2010 passed by this Court in Civil Application No.9054 of 2010 by not issuing the gate passes to them and by not allowing them to work and perform their duties as per the order passed by this Court.
These Civil Applications were opposed by the respondent Commission. An affidavit-in-reply was filed by the respondent. Ms. Brahmbhatt, learned advocate appearing for the respondent Commission has submitted that the facts stated and averments made in the application are false. The applicants were the employees of the Contractor and not ONGC. They were working through Contractor. As the contract was concluded w.e.f. 01.04.2009, the applicants who were engaged through the Contractor were never called for any official work / duty of the ONGC. The applicants being employees of the Contractor, ONGC has never paid them salary.
She further submitted that even if it is assumed that the applicants have worked as they are claiming, then also, it would not confer any legal status / right to them by such work because their status is required to be decided on the basis of the facts obtained on the date of filing of the petitions before this Court. She has, therefore, submitted that the prayers made in the Civil Applications deserve to be rejected.
Having heard learned advocates appearing for the parties and having gone through their rival submissions and pleadings contained in the petitions as well as various affidavits filed from time to time and the case law cited before the Court, the Court is of the view that the petitioners are not entitled to the reliefs prayed for in these two petitions. The issue was raised before this Court in earlier petition being Special Civil Application No.2573 of 1997 and the case of the petitioners and the dispute raised by them was adjudicated by the Court. Certain directions were issued, pursuant to which the Regional Labour Commissioner (Central), Ahmedabad has submitted his report. This report is equally applicable to the facts of the present case. Even otherwise, the petitioners cannot take shelter of long service. As a matter of fact, the present petitions are filed in the year 1987 / 1988. At that time, the petitioners had hardly put on the services of 2 to 3 years. The petitioners were continued till March, 2009 by the Contractor in compliance with the interim order of this Court. There is settled position in law by now that the said period during which the protection is granted by the Court cannot be added for sustaining the plea of long tenure. Even while granting regular appointments to the other petitioners, the respondent Commission has followed the prevailing ONGC (Recruitment & Promotion) Regulations, 1980 as modified w.e.f. 01.01.1997. The Commission has considered the issue of age relaxation on merits of each case. The petitioner Nos.6, 26 & 35 in the first petition and petitioner No.2 in the second petition were not considered for appointment as they were age barred. In this connection, the decisions relied upon by Mr. Clerk does not render much assistance to the petitioners. In the case of S. M. Pandit and others V/s. State of Gujarat and others (Supra), though it is held that the persons who are merged into one class, there cannot be any discrimination between them on the basis of their birth mark, it would not apply to the facts of the present case as certain petitioners are appointed by the respondent Commission as they were falling within the age criteria as laid down in the R & P Regulations, 1980 as amended and framed under the ONGC Act and also in terms of agreement reached between the then members (personnel) and the Union in the year 1991 regarding age relaxation to the extent that the age was within the prescribed limits on the date of offering services in ONGC through the Contractor. The petitioner Nos.6, 26 & 35 do not satisfy the said criteria and, therefore, they were not appointed in ONGC. Hence, it cannot be said that any discriminatory treatment was given by the ONGC. Similarly, in the case of S. B. Patwardhan and another V/s. State of Maharashtra and others, (Supra), it is true that the Apex Court held that the seniority cannot be made to depend upon a fortuitous circumstances of confirmation. However, the said decision has also no application to the facts of the present case. No discriminatory treatment is given by ONGC. The petitioners who have been regularized were satisfying the criteria for appointment in ONGC. The petitioner Nos.6, 26 & 35 being age barred, were not appointed. The petitioners fail to produce any evidence to substantiate their claim that all the petitioners who were regularized were age barred. Similarly, the decision of Mineral Exploration Corporation Employees' Union V/s. Mineral Exploration Corporation Limited and others (Supra) has also no application to the facts of the present case as in that case, it is clearly observed by the Apex Court that the workmen in order to succeed will have to substantiate their claim as per the established principles of law. They should not be under the cover of orders of the Courts or of Tribunals. Here admittedly, the petitioners remained in the employment of the Contractor and worked with ONGC only pursuant to the interim order passed by the Court. Even the decision of Yamuna Shankar Sharma V/s. State of Rajasthan and others (Supra), does not lead the petitioners' case any further as in that case, direction was issued to consider the past services rendered by the employee and in that context, the Court observed that the employee should not be denied regularization on the ground that he became over aged. However, Rules itself prescribe that the age of the employee at the time of entry in the organization is required to be considered and the said rule has been scrupulously followed by the Commission.
Some of the instances were pointed out in their pleadings by the petitioners. However, the same were also explained by the respondent Commission. In the case of Pramod I. Patel, petitioner No.3, it is submitted that he was found eligible as per the required criteria of ONGC and, therefore, he came to be appointed in ONGC after following the due procedure. As per the R & P Regulations, 1980 of ONGC, the eligible age for the regular appointment in ONGC in Class - IV is below 25 years. The said Mr. Pramod I. Patel was below 25 years even when recruited through Contractor. The petitioners have carried out an amendment in the petition in 2010 i.e. after a long delay of about 15 years though they were aware about the appointment of one Mr. Jagdish G. Barot, petitioner No.7 in the year 1995. No reasons are given for delay. Despite this, it was explained that the said Mr. Jagdish G. Barot, petitioner No.7 came to be appointed in ONGC on the post of Store Keeper in the year 1995 as he was satisfying the criteria. His date of birth is 07.09.1957 and at the time of initial deployment in ONGC through Contractor, on 21.04.1988, his age was 30 years 7 months and 14 days. As per R & P Regulations, 1980, the eligible age for the post of Store Keeper is 28 years for General candidates and relaxable by 5 years for SC/ST as per Government Rules on reservation Policy. Thus, no discriminatory treatment is given by the respondent Commission. In view of the fact that the petitioner Nos.6, 26 & 35 in the first petition and petitioner No.2 in the second petition did not fulfill the criteria laid down in the Regulations, they could not be absorbed. As per the decided case law on the subject, the Court cannot issue directions to regularize the services of the adhoc / temporary or daily wagers. In Mahendra L. Jain and others V/s. Indore Development Authority and others (Supra), the Court has held that regularization cannot be claimed as a matter of right. No directions for regularizing the employees of the Contractor as the employees of the ONGC can be given.
Taking any view of the matter and considering the detailed submissions made as well as the authorities cited by Ms. Brahmbhatt, learned advocate appearing for the respondent Commission, the Court is of the view that the petitions deserve to be dismissed and hence, they are accordingly dismissed, qua these remaining four petitioners.
Since the petitions are dismissed, as a natural corollary, Civil Applications are also required to be dismissed. However, looking to the facts of the present case and considering the peculiar facts found in these two petitions, since they have worked from 01.04.2009, though under the order of the Court, till this date, they are entitled to their wages. Hence, the respondent Commission is directed to pay the wages from the period from 01.04.2009 till this date to the applicants who have actually reported to the duty, if they have not been paid so far.
With this direction and observations, both the Special Civil Applications as well as Civil Applications are accordingly disposed of.
Sd/-
[K. A. PUJ, J.] On pronouncement of the judgment, Mr. A. K. Clerk, learned advocate appearing for the petitioners has requested the Court to extend the interim relief, which was granted and which is in force till this date, for the period of two weeks so as to enable the petitioners to approach the higher forum. Ms. Brahmbhatt, learned advocate appearing for the respondent Commission has strongly objected to grant extension of the interim relief. Considering the facts and circumstances of the case and further considering the fact that the petitioners are in service for more than 23 years, though under the protection of interim relief granted by this Court, the interim relief is extended for the period of one week from today.
Sd/-
[K. A. PUJ, J.] Savariya Top