Gauhati High Court

Page No.# 1/ vs Oil And Natural Gas Corporation ... on 7 March, 2022

Page No.# 1/10

GAHC010025402019

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : RFA/20/2019

SHRI MINA RAM BORAH AND 21 ORS
S/O LATE BAPU RAM BORAH,
RESIDENT OF VILLAGE LAHING KHARANIJAN,
PO LAHING, DIST JORHAT, ASSAM , 785635

2: SRI BIREN BORCHETIA
S/O LATE P C BORCHETIA

VILLAGE KONWARIPURIA MORAN GAON
PO GOHIANBARI(NAKACHARI)
DIST JORHAT
ASSAM 785635

3: SRI TOSHESWAR GOGOI

S/O LATE S. GOGOI

VILLAGE AND PO CHAKIMUK
NAZIRA
DIST SIBSAGAR
ASSAM
785685

4: SHRI AMULYA BORAH
S/O LATE B S BORAH
VILL SORUMOIA PORIA
PO LAHDOOIGARH
JORHAT
DIST JORHAT
ASSAM
785700

5: SRI KUSH RAM BORA
Page No.# 2/10

S/O LATE K.R BORA
VILLAGE KHOTOWAL GAON
PO NA ALI DHEKIAJULI
DIST JORHAT
ASSAM
785009

6: SHRI PODMA NATH GOGOI
S/O LATE K.R GOGOI

VILLAGE HANDIQUE GAON
PO NA ALI DHEKIAJULI
DIST JORHAR
ASSAM
785009

7: SHRI TANU RAM GOGOI
S/O LT. L GOGOI

R/O NAZIRA WARD NO. 2
PO NAZIRA
DIST SIBSAGAR
ASSAM
785685

8: SRI MAKHAN HAZARIKA

S.O RATIRAM HAZARIKA

VILLAGE ARAGAON
PO NAKACHARI
DIST JORHAT
ASSAM
785635

9: SRI ATUL CH. BORBORAH

S/O LATE T.R BORBORAH

VILLAGE PAHUCHUNGI GAON
PO TEOK
DIST JORHAT
ASSAM
785112

10: SRI PRAFULLA KR. DUTTA.
S/O LATE H.K DUTTA
Page No.# 3/10

VILLAGE RATANPURIA
PO MURABAZAR
DIST SIBSAGAR
ASSAM
785680

11: SHRI PRAFUL CH. TALUKDAR

S/O LATE A. TALUKDAR
VILLAGE BIHAMPUR
PO NALBARI
DIST NALBARI
ASSAM
781303

12: ON THE DEATH OF MD. ISHAHAQUE ALI
HIS LEGAL HEIR MRS. HAZIRA BEGUM

W/O LATE ISHAHAQUE ALI

VILLAGE SAHAN
PO RANGIA
DIST KAMRUP ASSAM
781354

13: SRI DHARMESWAR SAIKIA

S/O LATE S.R SAIKIA

VILLAGE NO. 2 KAKODONGA
HABI GAON BLOCK NO. 14 PO URONGIAL(BORHOLA)
DIST JORHAT
ASSAM
785631

14: SRI NAVAJYOTI BORAH
S/O LAKHI RAM BORAH

VILLAGE NORA GAON
PO NABHETA
DIST GOLAGHAT
ASSAM
785622

15: SHRI INDESWAR GOGOI

S/O BOTANG CHANDRA GOGOI
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VILLAGE MELENG CHETIA GAON
PO MELENG T.E DIST JORHAT
ASSAM
785700

16: SHRI ABANI KR. BORAH.
S/O LATE P. BORAH
VILLAGE NO. 1 BRAHMIN GAON
PO CHENGELI GAON
DIST JORHAT
ASSAM
785010

17: MD. TOMIJUDDIN AHMED

S/O LATE M. AHMED
VILLAGE DERGAON
PO DERGAON
DIST GOLAGHAT
ASSAM
785614

18: SRI JITEN CH. DOLOI

S/O D.R DOLOI
VILLAGE LICHUBARI
PO JORHAT
DIST JORHAT
ADDAM
785001

19: SRI DILIP BORUAH

S/O LATE KOLAI BORUAH

VILAGE BORUAH GAON
PO JOKHARIA
DIST JORHAT
ASSAM
785112

20: SHRI UPEN CH. LASKAR

S/O NANDA RAM LASKAR
R/O HOJAI
NAGAON
PO HOJAI
DIST NAGAON
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ASSAM
785441

21: SHRI JIBESWAR BORAH

S/O LATE RAMESWAR BORAH
VILLAGE MALOW ALI
PO MALOW ALI
DIST JORHAT
ASSAM 785001

21.1: Minati Bora
W/O Late Jibeswar Bora

R/O Vill.Malow Ali P.O Malow Ali
Dist. Jorhat Assam PIN 785001

22: SMTI. RUPALI GOGOI
W/O LATE BHADESHWAR GOGOI
VILLAGE JEHENIA
PO SAMOGURI

DIST SIVASAGAR
ASSAM 78568

VERSUS

OIL AND NATURAL GAS CORPORATION LIMITED AND ANR
REPRESENTED BY THE EXECUTIVE DIRECTOR, ASSAM ASSET, ONGC (L) ,
NAZIRA, DIST SIVASAGAR, ASSAM, 785685

2:THE EXECUTIVE DIRECTOR.
ASSAM ASSET
ONGC
(L)
NAZIRA
DIST SIVASAGAR
ASSAM
78568

Advocate for the Petitioner : MR. P K DEKA

Advocate for the Respondent : MR. N ISLAM
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BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT

07.03.2022

Heard Mr. P. K. Deka, learned counsel representing the appellants as well as Mr. N. Islam, learned counsel appears for the respondents.

2. This is a regular first appeal under Section 96 of the Code of Civil Procedure, 1908 against the judgment dated 11.12.2018 as well as the connected decree dated 13.12.2018 passed by the Civil Judge, Sivasagar in Money Suit No. 38/2014.

3. Most of the appellants are former servicemen. One of them is the widow of a deceased serviceman. The respondents temporarily recruited them as Tally Communication Operators on contract basis. When the contract expired, they wanted the respondents to make their services permanent. The respondents did not do so. Therefore, the appellants approached this court by filing a writ petition. This court directed the appellants to approach appropriate court seeking relief. Accordingly, the appellants filed the suit being no. MS 38/2014 seeking a compensation of Rs.2,30,00,000/-.

4. The respondents contested the suit by filing a written statement. The respondents claimed that since the term of the contract with the appellants expired on 30.06.1995, they are not entitled to seek regularization of their services.

5. On the basis of the pleadings, the court below framed the following issues:

     (i)      Whether the suit is maintainable?

     (ii)     Is there any cause of action for the suit?

      (iii)    Whether the plaintiffs are entitled to get compensation as prayed for?

     (iv)     To what other reliefs, if any, the parties are entitled.
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6. During the trial, the appellants examined 16 witnesses whereas the respondents did not examine any witnesses. On the basis of the evidence on record, the trial court dismissed the suit of the appellants.

7. I have heard the learned counsels for both sides at length.

8. After hearing both sides and after considering the materials available in the case records, this court finds that the point for determination in this appeal is as to whether the suit of the appellants is maintainable in law.

9. The point for determination is covered by Issue Nos. 1 and 2. The learned trial court decided these issues in favour of the appellants.

10. The law regarding contractual employees and their future absorption in the service has already been settled in a catena of decisions.

11. At this stage, paragraphs 47, 49 and 53 of State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 are relevant. In that case, the Supreme Court has held as under--

"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the Page No.# 8/10

employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme".

12. In University of Delhi ... Appellant(s) Versus Delhi University Contract Employees Union and Others ... Respondent(s) reported in 2021 SCC OnLine SC 256, it is held that ---

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"11. The object behind the said direction in para 53 of Umadevi1 is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi1 was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi1 without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi1 as a one-time measure."

13. In Umadevi(supra)it is specifically directed that Courts should desist from issuing orders preventing regular selection or recruitment at the instance of persons who are only adhoc/contractual/casual employees and who have not secured regular appointments as per procedure established.

14. The appellants worked with the respondents on the basis of a contract. Therefore, they do not derive any right to be absorbed against the regular post. The appellants even cannot invoke the theory of legitimate expectation. However, the respondents are at liberty to recruit the appellants also if they are otherwise eligible for appointment against vacant post. For example, they must have the necessary qualification, they must be within the age limit fixed for appointment, etc. For not absorbing contractual employees into permanent service, the contractual employees do not have any right to seek compensation. They knowingly entered into the contract with the respondents. They had the knowledge that after the expiry of the contract, they will no longer be in the service of the respondents.

15. For the aforesaid premised reasons, this court is of the opinion that the suit filed by the appellant never had a cause of action nor such a suit is maintainable in law. The learned trial court erroneously oriented itself while deciding the Issue Nos. 1 and 2. The decision of the trial court in these two issues is incorrect. Both the issues are decided in negative.

16. The Issue Nos. 3 and 4 were decided in negative. This court is of the opinion that the trial court correctly decided these two issues in negative. In agreement with the decision of the trial court and in the light of the decisions arrived at in Issue Nos. 1 and 2, these two issues are answered in negative.

17. For the aforesaid reasons, the present appeal is found to be devoid of merit Page No.# 10/10

and stands dismissed accordingly.

18. Send back the LCR.

JUDGE

Comparing Assistant