JUDGMENT
C.M. Nayar, J.
(1) The present writ petition has been filed by the petitioner for a direction to the respondents for his re-instatement with all back wages as a regular employee and for regularisation of his services.
(2) The facts, which are relevant for deciding the present controversy between the parties are that the respondents advertised for the post of Assistant (Accounts)/(Night Audit) through ‘Employment News’ dated March 26, 1988,which has been filed as Annexure A to this petition. The petitioner applied for the said post and was ultimately placed in the panel at serial No.2. There were two posts available, one in the general category and the other in reserved category. The petitioner having been placed at serial No.2 was, therefore, not given any appointment. It is further contended that he was employed as a Daily Wager on his request on April 1, 1989 and on December 14, 1990 he requested the respondents for regularisation on the basis of his selection and satisfactory service of nearly 21 months.
(3) It may be relevant to mention that the matter was considered by the respondents and it is so stated in letter dated March 8,1991, as addressed to the Member of Parliament. The operative part of this communication may be reproduced as follows: “I am informed by, Itdc that since the validity of the select list prepared in which the name of Shri B.N.Dora Prasad appeared for regular appointment as Assistant (Accounts)/Night Auditor has expired, his request for regularisation cannot be acceded to. However, the service rendered by him on daily wage basis will be taken into account while considering his candidature for regular appointment to -the said post in future. I trust that this clarifies the position.”
(4) The learned counsel for the petitioner has contended that the petitioner was selected for regular appointment and he has not been given the job despite the fact that he had been fully qualified for the same. He was, however, offered a position as a clerk on daily wage basis, which continued from April 1, 1989 to January 5, 1991, when he was orally told to leave the service. No formal orders were passed in this regard. It is further stated by the respondents that the position was not offered to the petitioner by respondent no. I but he was placed on daily wage basis by the Tender Award Committee and the tenure of such position is always limited.
(5) I have heard learned counsel for the parties and perused the record . There is no dispute about the averment that only two posts were available when the selection was made for the post of Assistant(Accounts)/Night Audit for which, the petitioner was a candidate and the same is indicated from the Minutes of the Selection Committee dated May 2, 1988. The petitioner was placed at serial No.2and since one post was available he could not be accommodated and the validity of the panel expired on May 2, 1989 after a period of one year and no vacancy, it is contended by the respondents, arose within the intervening period. This point is not in dispute and no further arguments are made to impugn the selection on this basis by learned counsel for the petitioner.
(6) The learned counsel for the petitioner, however, contends that the petitioner was employed on daily wage basis and he continued to work with the respondents from April 1, 1989 till January 5, 1991, when his services were orally terminated. He argues that on present facts and as conceded by the respondents themselves, the petitioner having completed more than 240 days, he is entitled to the retrenchment compensation under Section 25-F of the Industrial Disputes Act and the compensation having not been granted to the petitioner, he is entitled to be re- instated with full back wages. Reference is made to a communication dated February 20, 1990, (Annexure-E to the writ petition) wherein the respondents have mentioned in the certificate that the petitioner has worked in the Tender Award Committee as an Assistant (Accounts) on daily wages for a period of about 10 months w.e.f. April 1, 1989. The certificate is dated February 20, 1990.
(7) The learned counsel for the respondents, on the other hand, has contended that the petitioner has not Worked for more than 240 days in a particular year and, therefore, he is not entitled to any relief on this count. He has referred me to the counter affidavit of the respondents wherein it is mentioned at page 17 that on the request of the petitioner to the effect that he was without a job, the Tender Award Committee had engaged him as a clerk on adhoc and purely temporary basis on daily wages. The duration of the engagement was for a fixed period and for a specified work and it came to an end automatically. The Tender Award Committee’s functioning was a limited, intermittant and sporadic nature. The said Committee was to receive only tenders and to finalise the same and thereafter its functioning was over. On this analogy Mr. Bhandari contends that it cannot be said that the petitioner has worked for more than 240 days in a particular year. Reference is made to the judgments of this Court, as reported in Between Tarlok Chand and others And National Industrial Development Corporation Ltd. & others 1994 (2) Llj page 1130, Ms. Pushpa Gupta v. Chairman & Managing Director Engineers India Ltd., and another 1995 I Ad (Delhi) 63 and Shri D.P.Singh v. M/s Engineering Projects (India) Limited 1995 I Ad (Delhi) 478 to reiterate the proposition that when the questions of facts are disputed and the effective alternative remedy under the Industrial Disputes Act is available the writ petition cannot be entertained. In view of the fact that the averments which have been made by the petitioner in the writ petition are disputed by the respondents, it cannot be said that the petition does not raise disputed questions of facts. The efficacious and adequate alternate remedy available to the petitioner will, therefore, be under the Industrial Disputes Act and it will not be open for this Court to exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India.
(8) The petitioner will, therefore, be at liberty to raise all the questions which arise for consideration in this case before an appropriate forum in accordance with law.
(9) In view of the above, the writ petition is dismissed with liberty to the petitioner to avail of such alternative remedy, as may be available to him for enforcement of his rights. The proceedings, if any, taken by the petitioner before an appropriate forum shall be disposed of as expeditiously as possible.
(10) Before I part with this judgment I will expect the respondent Corporation to show fairness in the matter. The petitioner has approached this Court by a petition under Article 226 of the Constitution of India and the petition is being dismissed on the plea that disputed questions arise and an alternative remedy is available. The factual position, however, is not in dispute that he was working with the respondents w.e.f. April 1, 1989 on daily wage basis and he is, admittedly, a qualified person for the job he was handling to the satisfaction of the respondents. In view of this background, it will be open for the petitioner to approach the respondents for appointment in a regular vacancy and the respondent on such representation shall consider the application of the petitioner on merits, as was conceded by them in their communication of March 8, 1991 that the services rendered by him on daily wage basis will be taken into account while considering his candidature for regular appointment in future.