1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR. WRIT PETITION NO. 3626 OF 2008 1. Maharashtra Jeevan Pradhikaran Environmental Engineering Circle, Near Nehru Park, Akola, through Its Superintending Engineer. 2. Executive Engineer, Environmental Engineering Works Division No. 1 Maharashtra Jeevan Pradhikaran Buldhana, Distt. Buldhana. 3. Sub Divisional Engineer, Environmental Engineering Division, Buldhana, Distt. Buldhana. PETITIONERS. VERSUS 1. Ashok Tryambakappa Kapse R/o Ram Nagar, Buldhana. 2. Nagar Parishad Buldhana, Distt. Buldhana, through its Chief Officer. RESPONDENTS. Shri. D. M. Kakani, Counsel for the petitioners. Shri. A. S. Mardikar, Counsel for the respondent No.1. Shri. N. B. Kalwaghe, Counsel for respondent No.2. 2 CORAM: J. H. BHATIA J. Date: 24th FEBRUUARY 2009. ORAL JUDGMENT: Rule. Rule made returnable forthwith. With the consent of the parties the matter is taken up for final hearing. 2. Respondent no.1 filed a complaint ULP No. 341 of 1995 before the Industrial Court Jalgaon, Camp at Akola making grievance that the present petitioners have indulged into unfair labour practice under Item No. 5 and 9 of the Schedule IV of MRTU & PULP Act 1971. According to him he was first appointed on daily wages on 01.08.1984 and as per Kalelkar Award he should have been brought on CRTE as a Fitter but petitioners committed mistake by recommending his name for being taken on CRTE as a Labourer. This was unfair labour practice. According to him as per the Kalelkar Award on completion of 5 years service he should have been absorbed on CRTE by creating a post considering the nature of the duties performed by him on the date 3 of submission of the proposal. Inspite of the fact that since 01.08.1984 he was discharging the duties of Pump Operator (Fitter), he was brought on CRTE as labourer and not as a Pump Operator. Therefore, he claimed that he should be deemed to have been brought on CRTE as Pump Operator after completion of 5 years service beginning from 1984. In the alternative he contended that as per certain policy decisions of the petitioners certain higher grade posts were to be filled in by giving promotions to the lower grade persons and as per the said policy the employees were granted promotion by the order dated 22.07.1993 and some of them were even juniors to the petitioner. Even though he was holding necessary certificate of Wireman Trade of the institution from where others had passed the examination of Electric Wireman, he was rejected for being promoted and thus unfair labour practice has been followed in his case. With this he prayed that he should be brought on CRTE as Fitter with all the monetary benefits with retrospective effect or in the alternative he be promoted in Grade III as a Fitter or Pump Operator with all the monetary benefits with retrospective effect. 4 3. The claim of the complainant/respondent No.1 was denied by the present petitioners. According to them the respondent no.1 was appointed as a labourer on 01.08.1984 and he was never required to work as Pump Operator or Fitter. On completion of 5 years service as Labourer on daily wages as per the provisions of Kalelkar Award, he was brought on CRTE w.e.f. 1989 and that benefit has been given to him. As he was not working as Pump Operator or Fitter he could not be absorbed on CRTE as such. In respect of the claim for promotion it is contended that respondent no.1/complainant was not having necessary qualifications for the post of Pump Operator. It is also denied that he was discharging the duties of Pump Operator since 01.08.1994 or prior to that. It is also denied that certain juniors who were equally situated and who were having equal qualifications were promoted and thus unfair labour practice was followed. 4. The complainant/respondent no.1 examined himself. Certain documents were placed on record. After hearing the parties, by the judgment dated 20.09.2005, the Industrial Court held that the 5 respondent no.1 was entitled to be brought on CRTE as Pump Operator on completion of 5 years of service and was declared entitled to the pay scale prescribed for the said post on completion of 5 years. Petitioners filed review application No. 2 of 2005 before the Industrial Court. That review application was rejected on 23.11.07. Hence this petition challenging the said award passed by the Industrial Court. 5. Heard learned counsel for the parties. On perusal of the complaint made by the respondent No.1, it appears that firstly according to him he was working as a Pump Operator-Fitter since 1984 and inspite of that on completion of 5 years he was not brought on CRTE as Pump Operator but only as a labourer. Secondly an alternative prayer is that he have been deprived of promotion inspite of the fact that some of his juniors have been promoted after 22.07.1993 and therefore he is also entitled to be promoted as Pump Operator. These are the two different aspects of the matter and they will have to be independently considered. 6 6. Learned counsel for the respondent No.1 vehemently contended that the petitioners were bound to take the respondent No.1 on CRTE on the post of which he was working when he completed 5 years of service. In this respect he placed reliance upon The State of Maharashtra Vs. M. V. Ghalge and another 1992 LAB. I. C. 748 and Executive Engineer Yavatmal and another Vs. Anant Yadao Murate and Another 1998(3) Maharashtra Law Journal 897. There is no dispute about the legal position in this respect. Only dispute is whether the respondent No.1 was working as a labourer or as a Pump Operator when he completed 5 years of service and when he was liable for being brought on CRTE as per Kalelkar Award. 7. Even though the petitioner claimed in the complaint that he was appointed and was working as a pump operator since 1984, in his cross examination he admitted that he was appointed as Labourer w.e.f. 01.08.1984. He also admitted that he was absorbed on CRTE as per Kalelkar Award in the year 1989. In view of this it is clear that 7 provisions of Clause 28 of Kalelkar Award have been duly complied by the department. His grievance in the complaint was that he was working as a Pump Operator since 1984. However, there is no material to support this claim. On the contrary the above admission made by the petitioner in the cross examination clearly show that he was not working as Pump Operator during the relevant period. In the examination chief he contended that his name was wrongly proposed for the post of labourer and he came to know about this when he received the appointment order of CRTE in the year 1992. However, it is also not correct because as per his own admission he was brought to CRTE in the year 1989 and not in the year 1992. Thus since 1987, he was fully aware that he was brought on CRTE as a labourer or Majdoor. Inspite of this for more than 7 years he did not raise any objection to his being taken on CRT as a labourer. 8. It appears that from 1992 onwards he made several requests to his superior for being promoted and appointed as Pump Operator. It is brought on record that on 16.06.1993 Executive 8 Engineer had recommended his name for promotion to the post of Pump Operator/Fitter. With that letter, he had recommended a large number of Majdoors for being promoted including the respondent. It appears that inspite of that recommendation the order dated 22.07.1993 was issued by the Superintending Engineer promoting 24 labourers to the post of Pump Operator/Fitter. Respondent deposed that in the seniority list dated 03.06.1992 he was at Sr. No. 86. Though he was not given promotion some of the persons who were below him in that list were promoted and that was exactly his grievance. On 18.05.1995 also he made a representation before the Superintending Engineer wherein he made a grievance that by order dated 22.07.1993 some of the workers were promoted to Class III post as Pump Operator/Fitter and inspite of his claim being recommended he was not promoted. He made a request for redressal of the injustice done to him. He specifically stated in that application that while working as a labourer he has been looking after the work of Pump Operator also satisfactorily and therefore he should be given promotion. If the record is carefully perused it will appear that in his 9 representations made to the superior officers from 1992 to 1995 he had made a request for promotion or made a grievance against refusal of promotion. There was never any grievance that he was wrongly brought to CRTE as labourer under the Kalelkar Award. For the first time he made that grievance only in the complaint and that too half heartedly. His main stress even in the complaint was about the promotion. It appears that while making the complaint, for the first time he took up the plea that he was working as a Pump Operator since the beginning of his appointment in 1984. That complaint was filed on 22.12.1995. Before that date he had never made any grievance about the wrong implementation of the Kalelkar Award in his respect. Taking into consideration the material on record I am satisfied that there is no evidence worth the name to show that since 1984 he was appointed and was required to work as Pump Operator. As per his own admission he was appointed as a labourer in 1984 and was working as such and therefore on completion of 5 years service he was brought to CRTE to the post of labourer on which he was working in 1989. In view of this I find no substance in his complaint that he 10 was wrongly brought to CRT as labourer instead of Pump Operator/Fitter. In view of this the impugned order passed by the industrial Court appears to be perverse because it is not supported by any material on record. 9. Coming to the prayer for promotion it appears that the Government of Maharashtra in Public Works Department issued a Resolution dated 08.01.1975 and fixed the qualifications for appointment to certain posts. It shows that the Pump Operator (Electrical) could be appointed either by selection from the Helpers/Pump Attendants who possess the Government IInd Class Wireman Certificate and three years experience or by direct recruitment of person who has passed SSC with two years ITI Electrician Course. It appears that in 1993 there were several vacancies and therefore there was proposal to fill in those vacancies of Pump Operators/Fitters by promotion from amongst the Pump Attendants/Helpers. It appears that in view of this the name of present respondent was recommended by the Executive Engineer. 11 However, he was not promoted when the order dated 22.07.1993 was issued by the Superintending Engineer. It is true that some of the persons who were below the respondent No.1 in seniority were promoted and appointed as Pump Operators by the said order dated 22.07.1993. However according to petitioners the respondent No.1 was not holding the requisite qualification as per the Government Resolution dated 08.01.1975. If he was not holding necessary qualification he could not have been promoted and merely because some juniors holding qualifications were promoted the respondent No.1 could not make any grievance about the same. From his admission in the cross examination, it appears that he has completed Wireman's Course from Indira Technical School. He was also non matric, therefore, he was not holding necessary qualification even for direct recruitment. The examination passed from same Indira Technical Institute, which is a private institute, could not be equated with the Government IInd Class examination as prescribed by the Rules for the purpose of promotion from amongst Helpers/Attendants. Record reveals that respondent No.1 appeared for wireman 12 examination held by the Government on 07.11.1996. As examination was held on that day only, the result must have been declared afterwards. Admittedly he passed that examination and after that he was qualified for promotion to the post of Pump Operator subject to having 3 years experience. It appears that he had obtained certain certificate from his S. D. O. to show the experience before appearing for the examination. Even if it is presumed that he was having 3 years experience he would be eligible for consideration of the promotion only after he had passed that examination by the end of 1996. From this it is clear that in 1995 when he made a complaint before Industrial Court he was not having necessary qualification for being promoted to the post of Pump Operator. There is nothing on record to show that after he passed the examination and acquired the requisite qualification for promotion to the post of Pump Operator there were any vacancies and that some persons juniors to him were promoted to that post ignoring his claim. Learned counsel for the petitioners contended that the Government is within its powers to prescribe the qualification for any posts and the Government has 13 exercised that powers while issuing Government Resolution of 1995 describing its application for different posts. He finds support from Supreme Court judgment in Commissioner, Corporation of Madras and Madras Corporation Teachers' Mandram and others 1997(2) L. L. N. 29 and Union Public Service Commission and SukantaKar and another 2007(113) FLR 1180. In view of these two authorities the settled position of law is that the Government can prescribed necessary educational and other qualifications for direct recruitment as well as for promotions and therefore no fault can be found in the Government Resolution of 1975 which prescribes certain qualification for direct recruitment or promotion to the post of Pump Operator/Fitter. In view of this it must be held that there was no substance in his grievance that he was wrongly superseded in 1993 when some of his juniors were promoted to the post of Pump Operator. For the aforesaid reasons I find that the impugned order is per se illegal and wrong and is liable to be set aside. 10. Learned counsel for the respondent No.1 vehemently 14 contended that even though the impugned order was passed in 2005 the present petition has been filed in August 2008, thus there has been a delay of about 3 years and on this ground the petition will have to be dismissed. However the learned counsel for the petitioners pointed out that after the judgment dated 20.09.2005 the petitioners had filed review application No.2 of 2005 and that review application was rejected on 23.11.2007. After that it was decided to file the petition challenging the order, because according to petitioner the impugned order is not passed on facts and merits. In my considered opinion the delay has been explained and in view of the fact that the impugned order goes beyond the claim of the respondent No.1, it would be in the interest of justice and public exchequer to condone the delay if any. Therefore, merely because of some delay in filing the petition after rejection of the review application, the petition cannot be dismissed. 11. Learned counsel for petitioners makes a statement that respondent No.1 continues to work as Majdoor with petitioner No.3. Municipal Corporation Buldhana is wrongly impleaded in the petition. 15 Learned counsel for the petitioner makes a statement that for want of vacancies the respondent No.1 could not be promoted to the post of Pump Operator even though he had attained the necessary qualification after passing the examination of Wireman in 1996. Learned counsel makes a statement that as and when there will be vacancy he will be considered for the promotion. 12. For the aforesaid reasons the petition is allowed. The impugned order is hereby set aside. JUDGE svk