WP/313/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.313 OF 1999 Kalyan Dombivli Municipal Corporation & anr. ... Petitioners V/s. Chinnatambi Ayyakan & Ors. ... Respondents Mr.A.K. Jalisatgi for Petitioners Mr.Mahendra Agavekar for Respondent No.1 Respondent No.2 – formal party CORAM: SMT.NISHITA MHATRE, J. DATED: SEPTEMBER 23, 2010 ORAL JUDGMENT: 1. The petition has been filed against the order of the Industrial Court allowing the complaint filed by the respondent. The Industrial Court has concluded that the Petitioners had committed unfair labour practices under Items 5 and 9 of Schedule IV. It directed the petitioners to continue the respondent as a Sanitary Mukadam by promoting him to that post w.e.f. 29.10.1993. However, the Industrial Court has not granted any monetary benefit to the respondent pursuant to such promotion being granted. 2. The undisputed facts in the present case are as follows: The respondent was appointed as a sanitary worker with the petitioners on probation on 10.7.1985. He was confirmed in this post on 10.3.1986 and an order to that effect was passed on 27.8.1986. The respondent continued to work as a sanitary worker WP/313/1999 : 2 : with the petitioners till he was appointed as an acting Mukadam in March 1988. He was issued an identity card on 24.5.1990 indicating that he was posted as an acting Mukadam. 3. In his complaint, the respondent has stated that there were about 40 vacancies for the post of sanitary mukadam. The Petitioners sought applications for the post of sanitary mukadam by issuing a circular calling for applications on 30.3.1993. The respondent applied for the post on 12.4.1993. He appeared for an interview before the selection committee. However, it appears that two persons junior to him were promoted as Mukadam while filling in the vacancies. The respondent therefore filed a Writ Petition No.693 of 1993 contending that the petitioners have committed unfair labour practices under Items 5, 9 and 10 of Schedule IV of the MRTU & PULP Act. In his complaint, the respondent averred that there were eight vacancies which were still to be filled in by the petitioners. 4. In reply to the complaint, the petitioners contended that no relief could be granted to the respondent since all the vacancies had been filled in by 37 candidates who were found to be most suitable. According to the petitioners, the first 37 candidates were selected on the basis of the marks obtained by them in the interview. It is contended by the petitioners that since the respondent had not obtained sufficient marks to include him in the first 37 candidates no appointment order was issued to him. 5. Evidence was led by the respondent before the Industrial Court wherein he has stated that 37 posts of sanitary Mukadam were to be filled in by the petitioners. WP/313/1999 : 3 : To a suggestion made by the petitioners, he has admitted that he obtained less marks than those who were selected. No evidence has been led by the petitioners. They did not bother to place on record before the Industrial Court any material to establish their case that the respondent had obtained less marks than those who were selected. Nor was there any material on record before the Industrial Court to establish the fact that there were only 37 vacancies which had all been filled in by the first 37 persons in the selection list. Admittedly, the respondent had put in a number of years of service right from 1988 as an acting Mukadam. 6. The Industrial Court after considering the evidence on record has held that the seniority list was not displayed by the Petitioners nor was there any material on record to establish that the other workmen had been selected in accordance with the principle of seniority cum merit. The Industrial Court found that prima facie the petitioners had no objection to continue the respondent as a Mukadam in view of the fact that he had been continued as an acting Mukadam right from 1988 onwards. 7. I have heard the learned Counsel for the parties. Although it is vehemently argued by Mr.Jalisatgi for the Petitioners that the Industrial Court has not taken into consideration the admissions of the respondent that he has secured less marks than others who are selected, in my opinion, the Industrial Court has committed no error by allowing the complaint. In his complaint, the respondent has averred that there were 40 vacancies and 8 vacancies were still available when the complaint was filed as all the candidates had not been selected. In these circumstances, it was necessary for the petitioners to refute this allegation by producing material on record. Besides the contention raised in the written statement that the first 37 persons were WP/313/1999 : 4 : appointed and orders of promotion to 32 were issued on 15.9.1993 no documentary evidence was produced by the petitioners before the court. The court has believed the respondent's statement that he was senior in service and that the criteria for promotion was seniority cum merit. There is nothing on record to suggest that “seniority cum merit” was not the criteria once the candidate had qualified in the interview. Besides this, the petitioners have not denied the contention of the respondent that eight vacancies were still available for the post of sanitary Mukadam. 8. In my view, the Industrial Court has committed no error in directing the Petitioners to promote the respondent as Sanitary Mukadam, especially since he has been working on the post from 1988 and had passed the selection test. 9. Petition dismissed. Rule discharged. No costs.