Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.6453 of 1996 Ratnagar Ramchandra Patil ..Petitioner V/s. Municipal Corporation of Greater Bombay & 2 ors. ..Respondents ALONGWITH WRIT WRIT WRIT PETITION NO. 6454 of 1996 PETITION NO. 6454 of 1996 PETITION NO. 6454 of 1996 Narayan Sadanand Achrekar ..Petitioner V/s. Municipal Corporation of Greater Bombay & 2 ors. ..Respondents Mr.A.V.Bukhari with Mr.B.V.bukhari, Advocate for Petitioner in both Petitions Mr.A.J.Bhor, Advocate for Respondent Nos. 1 and 2 CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 25th February , 2008 : 25th February , 2008 : 25th February , 2008 ORAL ORAL ORAL JUDGEMENT JUDGEMENT JUDGEMENT These two Petitions raise a common challenge namely their failure to persuade the Industrial Court at Mumbai for the relief of directing the Respondents to hold them eligible for being considered for promotion to the post of Junior clerk/ Librarian in the Primary/Secondary Schools run by the Respondent No.1 Corporation and, therefore, they are being decided by a common Judgement. 2. Both the Petitioners are working as peons in the 2 schools run by the Municipal Corporation of Greater Mumbai and in the popular parlance they are class-IV employees. On or about 17-12-1998 the Respondent No.2 invited applications for the full time vacant post of Librarian in the pay scale of Rs. 1200-30-1560-40-2040 from amongst the class-IV employees working in the secondary schools and possessing the qualifications of S.S.C. + a degree/diploma/certificate course in Library Science. The Head Masters of the concerned Schools were requested to furnish the information of all such eligible employees in class-IV for being considered to fill in the vacant posts of Librarian. A similar letter was addressed by Respondent No.2 to fill in the post of Junior clerk. However,the candidature of the petitioners was not considered by the Respondents on some or the other grounds and, therefore, both of them approached the Industrial Court in Complaint(ULP)No. 970 & 969 of 1988, filed under Items 5 & 9 of Schedule IV of the MRTU & PULP Act, 1971 (for short the Act) and they prayed for a declaration as well as for directions to give promotion to the post of clerk/Librarian as the case may be against the available vacancies and by way of promotion. 3. The first Petitioner has been working with the Respondents as a Peon since 6-9-1974 whereas the 2nd petitioner has been working as such from 12-10-1979. 3 They relied upon the provisions of clause no. 57.3 of the Secondary School Code and claimed that every post in class-III like that of Clerk, Librarian, Laboratory Assistant was required to be filled in by way of promotion from amongst the class-IV employees working under Respondent No.2. They claimed that for being considered for promotion in class-III post, is their legal right under the Secondary School Code as well as the rules framed by the Corporation under which the posts of clerks were required to be filled in only by way of promotion subject to the percentage of reservation. The Corporation filed written-statement and opposed these complaints. The learned Member of the Industrial Court by his separate judgements rendered on the same date i.e. 29-9-1995 held that the Government is an appropriate authority for considering the promotions or the pay-scales of the Complainants and under the Secondary School Code there was no right created in favour of the Complainants for promotion or for equal pay with the peons working in the other departments of the Corporation. The Industrial Court referred to the Scheme of the Rule 8.1, 8.2 and 8.3 of Section II of the Secondary School Code as well as Rule 68.2 and 68.5 of the said Code to hold that it was the State Government who had to consider the issue of promotions as raised by the Petitioners including the issue of equal pay on par with other peons. There is no 4 doubt that in the complaints filed by the Petitioners in addition to the prayer for promotion they had also prayed for directions to fix their pay-scales on par with the peons of other departments under the Respondent No.1 Corporation and on this issue they had alleged unfair labour practice under Item 5 of Schedule IV of the Act whereas on the point of being considered for promotion, they alleged that Respondents were guilty of unfair labour practice within the meaning of Item 9 of Schedule IV of the Act. 4. With the assistance of the learned counsel for respective parties, I have gone through the Scheme of Rule 8.1, 8.2, 8.3, 9.1, 9.2, 9.3 and 9.4 of Section II as well as Rule 68.1 to Rule 68.5 of Section II in Chapter III of the Secondary School Code and none of these rules were infact required to be referred to. Rule 68.1 to 68.4 deal with categories of employees and Rule 68.5 deals with pay-scale whereas Rule 8.1 to 8.3 deal with opening of higher standards and Rules 9.1 to 9.4 deal with the channel of correspondence. The Petitioners have on the other hand relied upon the Scheme of Rules 57.1 to 57.9 of Section 1 in Chapter III of the Secondary School Code. There is no doubt that the required qualification for the post of Clerk was S.S.C. and for the post of Librarian it was S.S.C. + a degree/diploma/certificate course in Librarian Science 5 and both the Petitioners met these requirements. The employees in different schools run by the Respondent No.1 Corporation through the Respondent No.2 Board are no doubt governed by the provisions of the Secondary School Code and for their appointment, confirmation, transfer, seniority, promotion and other service conditions, they will be governed by the said Code and they cannot claim the same pay-scales as are applicable to the employees in class-III and class-IV in other departments of the Corporation. This view has been already up held by Division Bench of this Court in Writ Petition No. 3879/1988 (unreported) and decided on 5-2-2002. Therefore, the issue of equal pay on par with the peons in other Departments of the Corporation is already settled and is not required to be considered in these petitions. 5. On the issue of promotions, it is well settled that for being considered for promotion is a legal right and if the same is infringed due to the inaction or wrong action of the employer, the employees have a right to seek redressal before the appropriate judicial forum and,therefore, the Petitioners rightly approached the Industrial Court with a complaint of unfair labour practice. Undoubtedly the Industrial Court fell in manifest errors in dismissing the complaints and on the reasons which are frivolous, baseless and unconnected 6 with the reliefs sought for. Under the rules prescribed by the Municipal Corporation as well as under the Secondary School Code most of the class-III posts like Clerk, Librarian, Laboratory Assistant/Laboratory Attendant etc. are required to be filled in by promotion from amongst the class-IV employees and if such posts were available under Respondent No.2, the employees in class-IV under the said Respondent have a right for being considered for such appointments by promotion if they meet the eligibility criteria like the educational qualifications, professional qualifications and experience etc. The learned Member of the Industrial Court turned down the claim of the Petitioners for totally unwarranted reasons and infact the said reasoning is perverse. There is no doubt that the petitioners could not pray for being promoted to the post of Librarian/Clerk and their claim was required to be considered to a limited extent of directing the Respondents to hold them eligible for being considered for promotion to such posts. Mr. Bhor, the learned counsel for the Corporation could not cite any provisions either under the rules of the Corporation or under the Secondary School Code to show that the class-IV employees cannot be considered for promotion to class-III posts under the Respondent No.1 or Respondent No.2. Hence, the impugned orders are unsustainable and they deserve to be quashed and set aside. 7 6. In the premises the petitions succeed partly. The impugned Orders of the Industrial Court are hereby quashed and set aside and the complaints are partly allowed. It is declared that the Respondents are guilty of unfair labour practice under Item 9 of Schedule IV of the Act and the Respondents are directed to consider the Petitioners eligible for promotion to the post of Clerk/Librarian under Respondent No.2. In case any of the Petitioners during the pendency of these petitions has been promoted to some higher post, his claim will have to be considered on the basis of the post he now holds. The Corporation is directed to consider the cases of class-IV employees for promotion to the class-III posts depending upon the qualifications, eligibility requirements and experience etc. under Respondent No.2 and claim of the Petitioners is directed to be considered for such posts if they exist as at present. 7. Rule is made absolute accordingly with no order as to costs. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]