:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1048 OF 2002 WRIT PETITION NO. 1048 OF 2002 WRIT PETITION NO. 1048 OF 2002 Nasik Municipal Corporation ] Sharanpur Road, Nasik ] ..Petitioner versus Nanaji Pitha Parmar ] Age : Adult, R/o. Ambedkar ] Colony, Red Cross Road, ] Municipal Corporation Building ] No. 1, Room No. 45, 3rd floor, ] Nasik - 1 ] ..Respondent Mrs. Manisha Shekhar i/b. M/s. J. Shekhar & Co. for the Petitioner. Mrs. S. S. Gokhale for the Respondent. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 13TH JANUARY, 2009. DATE : 13TH JANUARY, 2009. DATE : 13TH JANUARY, 2009. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . Heard. 2. This is a petition directed against the Order of the Industrial Court dated 21.9.2001 by which the learned Industrial Court has directed the petitioner - Municipal Corporation to promote the respondent to the post of Junior Clerk in Class - III. :2: 3. The respondent filed a Complaint under the MRTU & PULP Act making a grievance of supersession and claiming promotion. According to the respondent, two other employees Bodhare and Bairagi who were junior to him in Class -IV were promoted as Junior Clerks in Class - III earlier than him. The complainant therefore complained of unfair labour practices under Items 5, 9 and 10 of Schedule IV of the MRTU & PULP Act. The Industrial Court recorded evidence and found that the complainant had the requisite qualifications to be promoted as Junior Clerk in Class III category. The Industrial Court rejected the defence of the petitioner - Municipal Corporation that it was necessary for an employee to work as Mukadam for 5 years or as Peon for 10 years before being considered for promotion and that condition was relaxed in the case of Scheduled Caste and Scheduled Tribe and since the complainant belongs to that category, he was promoted. The respondent having been appointed on 2.6.1992, the Industrial Court found that he had completed five years continuous service on 5.9.1997 and is therefore entitled for promotion in accordance with Resolution No. 301 by which Class IV categories were considered for promotion to Class III category. There is no dispute that the respondent’s name :3: appears amongst the names of those who were decided to be promoted by the petitioner - Municipal Corporation on 19.8.1996 by a resolution. The respondent’s name appears at Sr. No. 6 amongst the list of reserved candidates to be appointed in eight vacancies which had arisen then. In that list, which is at Exhibit No. 5, the petitioner is shown senior to one A. N. Bodare. In this view of the matter, the Industrial Court directed the promotion of the respondent. 4. The learned counsel for the petitioner strongly submitted that the promotion directed by the court would result in supersession of several Scheduled Caste employees, which is apparent from the seniority list at Exhibit ’B’. The learned counsel for the respondent however submitted that this seniority list is dubious and in any case not produced before the Industrial Court. The learned counsel for the respondent further points out that this contention was not raised in the written statement nor is it raised in the grounds in the petition and therefore the learned counsel for the petitioner is not entitled to rely on the so-called seniority list. It does not appear appropriate to rely on the said seniority list. The matter would :4: have to be decided on the seniority list produced before the lower court. 5. The next contention on behalf of the petitioner is that the two employees who were junior to the respondent No.1 though promoted earlier than him are no more serving in the promoted post because one of them has been directed to be demoted by the court and the other was demoted by the petitioner - Corporation. It appears that that will not be determinative of the matter since the Industrial Court has found that the petitioner was not entitled to be promoted w.e.f. 3.2.1997 when another employee D. P. Wagh was appointed in a vacant post of Junior Clerk on 16.8.1994. The learned counsel for the petitioner vehemently objected to the order of the Industrial Court directing the petitioner to be promoted from 3.2.1997 on the ground that Wagh though apparently junior to the respondent was appointed on compassionate ground and was in any case not promoted. 6. The basis of the submission does not appear to be clear since the order promoting Wagh is based on the educational qualifications as well as compassionate ground. Moreover there seems to be :5: some inherent defect in the said order since Wagh is shown to have been originally appointed on 16.8.1994 and yet the order seems to give him fresh appointment by nomination in a higher post. It is therefore not possible to accept the contention on behalf of the petitioner. The question which arise on the basis of the order apparently promoting Wagh as Junior Clerk cannot be answered at this stage because the argument made before this court was neither raised by way of pleadings nor made before the Industrial Court. Besides the above, the learned Industrial Court has observed in paragraph 17 of its Order that the petitioner - Corporation promoted one D. M. Kathe as a junior clerk from the post of sweeper on 26.6.1997 instead of the respondent. In this view of the matter, no interference is called for as the petition is liable to be dismissed, which is hereby dismissed. Rule discharged. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)