1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : N A G P U R. M.C.A. No. 906 OF 2007 (In WRIT PETITION No. 541 OF 1993) Sudeshwar Vishanath Gotekar -VERSUS - Nagpur Mpl. Corpn. & ors. .... Mr. S.P. Bhandarkar Advocate for the Applicant/Review Petitioner. Mr. S.M. Puranik Advocate for Respondents 1 & 2. Mrs. G. Venkatraman Advocate for Res. no. 3. .... CORAM : A.B. CHAUDHARI, J. DATE : 09 -09- 2009. COURT’S ORDER : Learned counsel for the review petitioner made following submissions - (a) The original complaint (ULP) before the Industrial Court as well as the writ petition that was filed by respondent no.1/ N.M.C. and by the three promoted employees did not have any challenge pertaining to the promotion of the review petitioner made on 20.5.1988 and therefore this Court should 2 not have disturbed the said order of promotion or the fact of promotion itself. (b) The prayer made in the complaint that was filed by the review petitioner related to the deemed date of promotion which the review petitioner was seeking against the promoted employees from 1986 . The complaint itself was filed in the year 1986 and therefore there was no occasion for the Industrial Court or this Court to test the validity of promotion of the review petitioner made by the order dated 20.5.1988 and this Court ought not to have interfered with the promotion of 20.5.1988. (c) The employees whose promotions were challenged by the review petitioner though were sailing in the same boat, namely that none was qualified to hold the said post, this Court could not have held that relaxation of qualification for the review petitioner could not be made for want of authority by the Corporation. (d) The petitions which were decided by this Court did not contain a prayer to quash the promotion order dated 20.5.1988 in favour of the review petitioner and therefore the said order of promotion could not be disturbed. 3 (e) Prior to the date of his promotion as Assistant Station Officer, the review petitioner was already in the cadre of Leading Fireman and promotion to that post was not the issue before any court and therefore at least the review petitioner’s status as Leading Fireman could not be disturbed. 2. Per contra, Mr.Puranik, learned counsel for the Corporation and Mrs.Venkatraman, learned counsel for respondent no.3, vehemently opposed the review petition and argued that no grounds are made out by the present review petitioner as no error apparent on the face of the record has been pointed out. They then argued inviting my attention to the pleadings and prayers so also the order of the Industrial Court that the subject matter of the writ petition was that the qualification for the post of Assistant Station Officer was minimum matriculation plus requisite training for the post. According to them there is no dispute that the respondents who were promoted did have qualification of matriculation. It is admitted position that the review petitioner himself was only VIII standard pass and by no stretch of imagination he could be sent for training, and that is why the Corporation rightly passed a resolution which was valid insofar as respondents/employees are concerned, but this Court found in its judgment that it could not be valid in so far as the review petitioner is concerned because he was VIII 4 standard. Undisputed fact is that the review petitioner was earlier in the cadre of Leading Fireman, which is said to be a cadre in the staffing pattern. 3. Having heard learned counsel for rival parties at length and having gone through the record it is clear that the review petitioner himself admits that he was not matriculate and he was merely VIII standard pass. For the post of Assistant Station Officer, minimum qualification required is matriculation, which he admittedly did not possess and so far as the promoted employees are concerned they admittedly possess the qualification of matriculation. That being so, this Court held that the basic qualification could not be relaxed by the Corporation, namely that of matriculation and that is why this Court upheld the claim of the Corporation as well as other promoted employees that the relaxation in their case as regards obtaining training qualification was wholly justified. In other words, only those who were matriculate could be sent for requisite training and not the person who is VIII passed and therefore in that back ground this Court held that the Corporation did not have the power to relax the basic qualification regarding matriculation. Therefore, that part of the judgment cannot be faulted by the review petitioner. 4. That apart, the promotion order dated 20.5.1988 is not a 5 promotion order on regular basis and that could not be so because the review petitioner was admittedly not qualified. This promotion order dated 20.5.1988 was for a limited period and it is not disputed that after one extension the same was never extended nor any regular promotion was given to the review petitioner. That being so, the promotion order dated 20.5.1988 will have to be treated as ad-hoc or officiating promotion order and that is all the more so because the review petitioner was not qualified to claim promotion in the cadre of Assistant Station Officer. The Corporation therefore did not issue any regular order of promotion to the review petitioner and, in my opinion, rightly. 5. Insofar as other respondents are concerned, they completed their training being matriculates and obviously they were entitled to be continued on regular promotion and they were also liable to be placed above the review petitioner in the seniority list because they were qualified while the review petitioner was not. I, therefore, do not find any substance in the submissions of Mr.Bhandarkar on merits of the matter. The submission that the promotion order dated 20.5.1988 was never the subject matter before Industrial Court or this Court is again without any merit because the Corporation as well as the promoted employees had specifically challenged the order of the Industrial Court putting the petitioner above the promoted employees though the review 6 petitioner was not qualified. The Corporation did challenge the fact about non-eligibility of the review petitioner, he being not qualified and therefore the issue was tried before the Industrial Court and this Court adjudicated upon and the same was fully dependent upon the entire adjudication, and as a sequel it was liable to be held that the official promotion in officiating capacity was not a regular promotion and no rights could be worked out by the review petitioner on the basis of such promotions. 6. The fact that there is a cadre of Leading Fireman in between the cadre of Fireman and Assistant Station Officer, was never brought to the notice of Industrial Court or this Court nor the fact that the review petitioner was promoted to the said post of Leading Fireman was brought before any other Court. It is now for the first time the counsel for review petitioner submits that by the order dated 17.5.1983 the review petitioner was promoted to the post of Leading Fireman and there is injustice caused to him since he has been ordered to be brought on the post of Fireman when admittedly he was holding the post of Leading Fireman. This submission is not seriously refuted before me. In my opinion, this will certainly lead to injustice to the review petitioner. Since this aspect was neither placed before the Industrial Court or this Court, this Court makes the following order. 7 7. Review petition is partly allowed. Judgment of this Court pertaining to the promotion of respondents/employees to the post of Assistant Station Officer and seniority above the review petitioner is confirmed. The challenge to the judgment in review to that effect is negatived. It is made clear that respondent no.1/Nagpur Municipal Corporation shall examine the correctness of the claim of the review petitioner about he being in the cadre of Leading Fireman and if it is found that the same is correct, the Corporation shall consider the issue limited to his claim as Leading Fireman and accordingly workout the case of the review petitioner for all purposes. With these observations, review petition stands disposed of. No order as to costs. JUDGE /TA/