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.3733 of 1996 Shri Siddaram Ramchandra Shinde, F-, Balajinagar, Chinchwad, Pune-33. ...Petitioner V/s. 1. The Chief Engineer, Pune City Circle Office, Rasta Peth, Maharashtra State Electricity Transmission Company Limited, Pune 411 011. 2. Member, Industrial Court, Pune. ...Respondents Mr. Nitin Kulkarni, Advocate for the Petitioner Mrs. A.R.S.Baxi, Advocate for Respondent No.1 CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 21st January, 2008 : 21st January, 2008 : 21st January, 2008 ORAL ORAL ORAL JUDGEMENT JUDGEMENT JUDGEMENT This Petition impugns the Judgement and order dated 16-1-1996 rendered by the Industrial Court at Pune thereby dismissing Comp(ULP)No. 104/1990 filed by the Petitioner and consequently his prayer for promotion to the post of Assistant Operator and Operator from the date Shri Otari was granted same promotions respectively, was rejected. 2. It is not disputed that the Petitioner joined the Respondent Board which is a State Government 2 undertaking, as a junior operator on 9-11-1970 and he was confirmed in the year 1971. Mr.M.M.Otari came to be appointed as a junior operator on 7-7-1972 and he was promoted to the post of Assistant Operator on 10-1-1979. The Petitioner was promoted for the first time to the post of Assistant Operator w.e.f. 5-1-1980 and thereafter he was promoted to the post of operator from 1-1-1984. Six years later he approached the Industrial Court and filed Complaint(ULP) No. 104/1990 under Section 28(1) read with Items 5 and 9 of Schedule IV of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971, (the Act for short). He claimed in the said complaint that he was required to be treated as senior and promoted to the post of Assistant Operator prior to 10-1-1979 when Mr. Otari was appointed to the said post. He further stated that he belongs to "Vimukta Jatis" (kaikadi) and Mr. Otari and another operator Mr.V.K.Ramoshi were promoted in the reserved category (OBC/VJ) and if he belongs to the same category, he deserved to be promoted earlier than Mr. Otari. 3. The Board filed written statement before the Industrial Court and contested the complaint both on its maintainability as well as on merits. On the issue of maintainability it submitted that the petitioner was transferred at his request to Pune w.e.f. 26-5-1989 and 3 he had given consent for giving up his seniority for this transfer. Consequently there was no cause of action for him to file a complaint. Secondly, the promotion of Mr. Otari was granted on 8-12-1986 and same was sought to be re-opened 18 years later and,therefore, the complaint was highly time barred. It was also claimed that Mr. Otari as well as Mr. Ramoshi were not included as the necessary respondents and if the petitioner’s claim was to be accepted for promotion to the post of Assistant Operator prior to 8-12-1986, one of these two operators could be affected. 4. On merits it was stated that the petitioner was all along treated as an open category candidate and in due course he came to be promoted as an Assistant operator w.e.f. 5-1-1980. He submitted his caste certificate for the first time on or about 15-9-1981 and consequently his service record was corrected and he was treated as a candidate belonging to "Vimukta Jatis" (V.J.). Based on this caste certificate he was granted promotion to the post of operator w.e.f. 1-1-984. It was further pointed out that the promotions to the post of Assistant Operator, Operator and Senior Operator are effected on the basis of seniority and merits and at the sametime the reserved category candidates would get promotions first in view of a fixed quota being available for them. 4 5. The Learned Member of the Industrial Court held that the complaint filed by the petitioner was not time barred but at the sametime he could not prove any act of unfair labour practice as alleged on the part of the Respondent Board. Consequently, the Industrial Court came to the conclusion that the Complainant was not entitled to any relief. The Industrial Court also noted after perusing the record that the Complainant had not submitted the caste certificate to show that he belongs to "kaikadi" caste when he joined employment with the Board in the year 1970 and for the first time, he put up such a claim by submitting a caste certificate on 15-9-1981. 6. When a complaint of unfair labour practice either under Item 5 or 9 of Schedule IV of the Act was filed, it was necessary for the Complainant to adduce evidence to show that the Board was guilty of partiality or favouritism and the Complainant was denied promotion dehorse the rules applicable. It was necessary for the Complainant to prove as an additional fact that he entered the service as a reserved category candidate and he was appointed against the post so reserved. Even in his complaint there was no averment that the Complainant was appointed as a junior operator against either OBC or VJ. He also did not state that the caste certificate 5 showing that he belongs to "kaikadi" caste was submitted in time prior to 15-9-1981. Under these circumstances if the Board treated him to be an open category candidate and granted him promotion to the post of Assistant Operator w.e.f. 5-1-1980 in due course, it cannot be said that the Board was guilty of any act of unfair labour practice in granting such a promotion either to Mr. Otari or to Mr. Ramoshi w.e.f. 10-7-1979 or any time thereafter. 7. So far as the claim to the post of operator is concerned, the Board pointed out before the Industrial Court that with reference to the earlier date of promotion i.e. 5-1-1980, the Petitioner was treated to be candidate belonging to VJ and was considered junior to Mr. Otari in the post of Assistant Operator and was thus considered by the promotion committee to be fit for promotion to the post of operator from 1-1-1984. It has not been pointed out by oral evidence by the petitioner before the Industrial Court that as on 5-1-1980 there was any other Assistant Operator who was junior to him and was promoted prior to 5-1-1980 from the open category. The Industrial Court, therefore, considered the oral evidence as well as documentary evidence placed before it by both the parties as well as the correspondence between the Board officials and recorded a finding that the Complainant failed to prove that the 6 denial of his promotion was illegal or in contravention of the rules applicable. 8. On the point of non-rejoinder of the parties, Mr. Kulkarni, the Learned Counsel for the petitioner relied upon the decision in the case of A. Janardhan V/s. A. Janardhan V/s. A. Janardhan V/s. Union Union Union of India (1983 (3) SCC 601) of India (1983 (3) SCC 601) of India (1983 (3) SCC 601) whereas Mr. Bakshi, the Learned Counsel for the Board relied upon the decision in the case of Indu Shekhar Singh & others V/s. Indu Shekhar Singh & others V/s. Indu Shekhar Singh & others V/s. State State State of U.P. & others (2006 8 SCC 129). of U.P. & others (2006 8 SCC 129). of U.P. & others (2006 8 SCC 129). In the case of A. Janardhan (supra) the seniority list prepared by the Union of India was under challenge on the ground that it was based on illegal or invalid rules but without including the seniors. The Supreme Court held that without any relief having been claimed against the seniors, it was not necessary to implead them as additional respondents. In the case of Indu Shekharsingh (supra) the appellants before the Apex Court were not impleaded as necessary parties in the Writ Petition filed before the High Court and as per the Judgement and order dated 4-4-2003 they were effected. The following observations from the decision in the case of Ram Janam Singh V/s. State of U.P. (1992 2 SCC 622) Ram Janam Singh V/s. State of U.P. (1992 2 SCC 622) Ram Janam Singh V/s. State of U.P. (1992 2 SCC 622) were reiterated. "It is now almost settled that seniority of an officer in service is determined with reference to 7 the date of his entry in the service which will be consistent with the requirement of Articles 14 and 16 of the Constitution. Of course, if the circumstances so require a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority. But whether such group of persons belong to a special class for any special treatment in matters of seniority has to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally such classification should be by statutory rule or rules framed under Article 309 of the Constitution. The far-reaching implication of such rules need not be impressed because they purport to affect the seniority of persons who are already in service." 9. In the instant case the seniority of the petitioner was not in dispute and it was the petitioner’s case that he ought to have been promoted to the post of Assistant Operator as well as operator prior to Mr. Otari as he belongs to OBC/VJ category and the Board had specifically claimed that if the petitioner’s claim was to be accepted, Mr. Otari would not get the promotion against the quota reserved for OBC/VJ. On these peculiar pleadings it was necessary that Mr. Otari and 8 Mr. Ramoshi were impleaded as necessary parties to the petition in the complaint before the Industrial Court. 10. Therefore, the reasoning set out by the Industrial Court, cannot be termed as perverse or manifestly erroneous so as to cause interference under the supervisory powers of this Court under Article 227 of the Constitution and hence this petition fails. . The same is hereby dismissed. Rule is discharged with no order as to costs. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]