1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1179 OF 2010. FOREST DEVELOPMENT CORPORATION OF MAH.& ANOTHER. -: versus :- BANDU B. PATIL. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Ku. Tajwar Khan, Advocate for Petitioners. Shri B.M.Khan, Advocate for Respondent. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 26, 2010. 1. Heard finally. 2. The petitioner, Forest Development Corporation, challenges judgment dated 11.09.2009 delivered by Industrial Court at Chandrapur in ULP Complaint No.70 of 1999, whereby the Industrial Court has asked it to regularise the respondent as a clerk and to give him benefit of permanency from 26.02.1990 with consequential monetary benefits. 3. Advocate Ms. Tajwar Khan for the petitioners has contended that the respondent was not holding necessary qualification when he entered the service. She 2 further points out that even today he does not possess necessary qualification and is seeking regularization therein because he belongs to Scheduled Caste category. She points out that during his entire length of service he never appeared for any departmental examination. Last contention is, in any case, when complaint is filed in the year 1999 grant of permanency and arrears on that account from 26.02.1990 is unsustainable. 4. Advocate Shri B.M.Khan, on the other hand, states that Industrial Court, after appreciation of evidence, has found 18 posts of clerks to be vacant. He further states that as the petitioner belongs to Scheduled Caste category relaxed qualification prescribed for that category is applicable to him even when he competes for open vacancy. However, he urges that considering the number of vacancies, it is clear that vacancy for scheduled caste category also exists. As the respondent is continuing as clerk since 1984, in view of the provisions of Model Standing Orders it was obligatory on the employer to confer permanency upon him after expiry of 240 days of continuous service and as that has not been done, the learned Member of Industrial Court has correctly given arrears even for the period prior to filing of the complaint. 5. The facts found by the Industrial Court show that 18 vacancies existed and as those vacancies are 3 brought on record on 26.02.1990, the Industrial Court has granted benefit to the respondent from 26.02.1990. Perusal of the relevant recruitment rules, produced before this Court, show that the candidate has to be SSC with typing speed in English and Marathi 30 words per minute respectively. In case of scheduled caste candidate the requirement of 45% marks in SSC is reduced to pass class. As it is not in dispute that the respondent belongs to scheduled caste category he has to be SSC in pass class. The Industrial Court has thus, rightly found that he fulfills necessary educational qualification. 6. In this situation, when existence of 18 vacancies is admitted it is clear that the only question to be looked into is about entitlement of the respondent to past arrears. He has filed ULP Complaint on 23.07.1999 and in that complaint the material on record shows that vacancies were in existence since 26.02.1990. 7. In this situation, considering the fact that employment with the petitioner is public employment as vacancies are admitted, the relief of regularization and permanency given by the Industrial Court cannot be interfered with in view of judgment of the Hon'ble Apex Court in case of Maharashtra SRTC vs. Casteribe Rajya P.K. Sanghatana, reported at 2009(3) CLR 262(SC) = 2009 (12) SCALE 25. But then it is also clear that the employer cannot 4 be foisted with unnecessary financial liabilities. It is not the case of the petitioner that any employee similarly working and junior to him has been made permanent prior to him or prior to filing of unfair labour practice complaint by him. 8. In view of this, it would be in the interest of justice if financial benefits given to the petitioner from 26.02.1990 are modified and it is declared that those benefits should be restricted from the date of filing of the complaint i.e. 23.07.1999. Thus, the impugned order of the Industrial Court is only modified to that extent. 9. The respondent is entitled to regularization and grant of permanency from 26.02.1990 but corresponding mandatory benefits arising out of it shall be conferred upon him from 23.07.1999 onwards. 10. Needless to mention that regularization and permanency is subject to passing of necessary departmental examinations which all similarly placed clerks are supposed to clear. 11. The petition is, thus, partly allowed with this modification and clarification. No costs. JUDGE RR