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2016 DIGILAW 388 (UTT)

Aakansha Prakash Ojha v. Oil and Natural Gas Corporation Ltd.

2016-07-25

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. Petitioner has approached this Court seeking the following reliefs: “1. a writ, order or direction in the nature of certiorari as to quash the selection process and the advertisement no. 03 of 2016 at the post of Homeopathy Doctor/Medical Officer Homeopathy on contract basis in the corporation. 2. a writ, order or direction in the nature of mandamus commanding the respondent to extend and continue the service of the petitioner at the post of Homeopathy Doctor/Medical Officer Homeopathy till regularization of her services and/or selection of permanent candidate on such post while quashing the appointment of Dr. Reena Verma Respondent no. 4 on contract basis pursuant to the advertisement no. 03 of 2016 advertised on internet on 16, June 2016 at the post of Homeopathy Doctor/Medical Officer Homeopathy in the corporation.” 2. Briefly put, the case of the petitioner is as follows: Petitioner is a Homeopathy Doctor. Petitioner was appointed on contractual basis in the year 2004 for a period of four years. Again in 2008, she was selected as Homeopathy Doctor on contractual basis and this period came to an end in 2012. Thereafter, in 2012, petitioner was again selected as a contractual appointee and continued till 2014, and thereafter, in the year 2014, petitioner was again selected as Homeopathy Doctor on contractual basis and that term came to an end in 2016, and then Annexure-8 advertisement was issued for a walk-in-interview for doctors on contractual basis. As far as Homeopathy Doctors are concerned also, it has advertised posts. The fourth respondent has been selected as Homeopathy Doctor. 2. We heard Sri Nagesh Agarwal, learned counsel for the petitioner and Sri S.K. Jain, learned Senior Counsel for the respondents. 3. The case of the learned counsel for the petitioner is that throughout, the petitioner has been made to understand that the interview is only a formality and the petitioner, accordingly, participated, and without giving any marks for experience and without regularizing her and at least without extending the services of the petitioner instead, the selection process has been held, by which another contractual appointee has been appointed to compel the petitioner to make a way for the new appointee; this is impermissible going by what is laid down by the Hon’ble Apex Court in State of Haryana and others vs. Piara Singh and others reported in 1992 SCR (3) 826. 4. 4. Per contra, Sri S.K. Jain, learned Senior Counsel for the respondents would submit that the petitioner has participated in the interview and she has secured 85 marks; whereas the selected candidate has secured 87 marks and another candidate in between the selected candidate and the petitioner has secured 86 marks and, in fact, there were 57 applicants, and therefore, it is not open to the petitioner to raise such a challenge. 5. We have gone through the grounds taken. There is no challenge as such to the selection of the fourth respondent being illegal on any ground relatable to the manner, in which the selection was held. In other words, there is no case that the Selection Committee acted in a mala fide manner. This is a selection by ONGC, and therefore, there is no question of any statute as such operating. There is no case that any binding principle to be followed in the selection process was observed in its breach by the Selection Committee. 6. We must, at this juncture, also notice the conduct of the petitioner. The petitioner has opted to participate in the interview and took the chance of getting selected and the challenge to the advertisement comes only after the interview process has culminated in the selection of another person. In such circumstances, we would think that the challenge to the advertisement should not be entertained. It is true that the petitioner does have a case that the petitioner was being told that the interview is essentially a formality and the petitioner may participate and the petitioner will get selected, but we do not think that we should lay store by this argument as the advertisement has been issued, in which, 57 persons have participated, according to the respondents. 7. As far as the question relating to regularization is concerned, we pointedly asked the learned counsel for the petitioner, whether there is any decision taken by the respondents entitling the petitioner to claim regularization? The petitioner was not able to point out any such decision. Moreover, we find that in the terms of the advertisement, as pointed out by the learned Senior Counsel for the respondents, it is made categorically clear that there can be no claim for regular employment. Such a term is there in all the earlier advertisements also, pursuant to which, the petitioner had participated. Moreover, we find that in the terms of the advertisement, as pointed out by the learned Senior Counsel for the respondents, it is made categorically clear that there can be no claim for regular employment. Such a term is there in all the earlier advertisements also, pursuant to which, the petitioner had participated. It may be true that, according to the petitioner, at the time, when the petitioner was originally selected in the year 2004, there were written test and interview; whereas there is now only interview. It is also the case of the petitioner that there was no complaint against the petitioner during the period of 12 years, when she was working there. 8. There is reference to Agreement dated 29th June, 2012, which reveals the following clauses:- “xii. That except the honorarium/benefits mentioned herein above, the said Dr. Akanksha Prakash Ojha shall not be entitled to claim regularization in the employment or any other benefit/claim/compensation whatsoever either during the period of her engagement or after the termination of the agreement. There will be no relation of Master and Servant between the parties under the contract. xiii. The contract may be extended by the Corporation on the rates & terms and conditions as specified by the Corporation which shall be acceptable to the said Dr. Akanksha Prakash Ojha.” 9. We presume that the same terms would be there in the later agreement in the year 2014. This reveals that far from having the right of regularization, the agreed term is that there will be no claim for regularization, either during the period of her engagement or after the termination of the agreement. Clause 13 of the Agreement, in fact, contemplates the power with the Corporation to extend on terms which are acceptable to the petitioner. The power with the Corporation cannot be transformed into a right in favour of the petitioner. Therefore, we would think that the petition has no merit and is dismissed. No order as to costs.