1 wp-3042-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 3042 OF 2009 The Superintending Engineer, Kolhapur ..Petitioner Vs. Krishna Satappa Patil ..Respondents .... Mr.Vijay Patil Adv. for Petitioner Mr.V.V.Pai Adv. for Respondent. .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : 29th JULY , 2009 P.C.: 1. Heard the learned counsel for the petitioner and the learned counsel for the respondent. Rule. By consent of the parties, rule is made returnable forthwith. 2. The case of the respondent is that as he is project affected person, he was given job of watchman of the petitioner. He came to be terminated in 1988. He challenged the said termination and he came to be reinstated. His grievance is that after his reinstatement, he has been victimized and he has not been given promotion to the post of Canal 2 wp-3042-09 Inspector though he was qualified for the said post. Hence, he preferred Complaint (ULP) No.193 of 1999. The Industrial Court by judgment and order dated 30th January, 2009 declared that the petitioner had indulged in an unfair labour practice under Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions Act and Prevention of Unfair Labour Practice Act (for short “M.R.T.U. & P.U.L.P.Act) and the petitioner was directed to give opportunity to the complainant i.e. present respondent to work in the post of Canal Inspector/Surveyor/Clerk with effect from the date of the judgment and order and pay him wages as applicable to the said post from the date of order. Being aggrieved by the said order, this petition has been preferred. 3. The case of the respondent is that though he was eligible to be appointed and promoted as Canal Inspector, the petitioner did not promote him to the said post. According to the respondent, employees junior to him were promoted to the post of Canal Inspector, however, he was not promoted to the said post. The case of the petitioner is that to be promoted to the post of Canal Inspector, it was necessary to pass examination and as the respondent did not pass the examination and fulfill the necessary qualifications, he was not appointed. It is pertinent to note that the respondent has stated that it is correct to say that as per his qualification, he was given the work of watchman. It is seen 3 wp-3042-09 that the respondent has admitted that there are certain guidelines for giving promotions to the post of Canal Inspector even for project affected persons. He has further admitted that while giving promotions, seniority, reservation, qualification and eligibility are considered. He has admitted that it is compulsory to pass the departmental examination for recruitment to the said post. He further admitted that prior to filling up the post, circulars are issued by the department. It will be pertinent to note that the respondent has admitted that there was departmental examination in the year 1999 wherein he had not appeared for the examination. The case of the respondent is that he was not given opportunity to appear for the said examination. However, this was not the case of the complainant when he filed his complaint. Thus, this appears to be an after thought and hence, cannot be taken into consideration. The respondent has also admitted that in the year 2005 the departmental examination was conducted for which he appeared but he could not secure requisite marks. Thus, it is seen that it is admitted by the respondent that he did not secure necessary marks in the examination conducted in the year 2005. 4. The learned counsel for the respondent submitted that as the respondent is a project affected person, there is some relaxation provided in the Rules and hence, even though the respondent has secured less marks, he would still have been eligible to be appointed as 4 wp-3042-09 Canal Inspector. As far as this aspect is concerned, it is seen that no such ground has been taken before the Industrial Court and it is for the first time that this ground has been raised before this Court. The respondent has not brought on record any Guidelines to show as to what relaxation is given to project affected persons and that in view of this relaxation, he was entitled to be promoted to the post of Canal Inspector. The respondent has not shown any circular or any resolution showing that any relaxation was given to project affected persons and due to the said relaxation, he became eligible to be appointed as Canal Inspector. All these important aspects have not been taken into consideration by the Court in its order dated 30th January, 2009. In view of the above facts, it cannot be said that the petitioner had indulged in an unfair labour practice as contended by the respondent. Hence, order dated 30th January, 2009 is set aside. The complaint deserves to be dismissed and is accordingly dismissed. Rule discharged. No order as to costs. [ SMT.V.K.TAHILRAMANI,J.]