1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3811 OF 1996 1.Forest Development Corporation, Nashik, through its Regional Manager, Kalika Road. Opp. Old I.T.I., Nasik. 2.Divisional Manager, Maharashtra State Forest Development Corporation, At and post Tq. Nandurbar, District Dhule. ..Petitioners Versus Ramesh Bhaurao Mahajan Age major, Occ. Service, r/o at Post Khandbara, Tq. Nawapura, District Dhule. ..Respondents ... Advocates appearing for : Petitioners : Shri Pradeep Shahane h/f Shri S.V.Gangapurwala and Respondent : Shri D.S.Bagul. ... CORAM : P.R.BORKAR, J. Dated : 10th August 2009 ORAL JUDGMENT :- 1. This petition is filed by Forest Development Corporation, being aggrieved by the judgment and order passed by the Industrial Court, Nasik in Complaint (ULP) No. 649 of 1991, decided on 6.2.1996, whereby the present petitioners were directed to absorb the complainant / respondent as a permanent workman in the category of Chaukidar with effect from 1.1.1992 and give him benefit of permanency since then. The petitioners were further directed to consider his acquired educational qualifications, at 2 the first available opportunity for promotion, as a Forest Guard / Clerk. 2. The facts giving rise to present petition can be summarised as under :- Respondent claims that from 1.8.1976 he has been working as a Clerk on the establishment of petitioner No.2 in Khandbara-3 section. There was a relationship of employee and employer between respondent and petitioners. Respondent is Fulmali by caste. He was continuously working as a Clerk. The persons, who were juniors in service and who had an educational qualification equal to respondent, were promoted. There is an unfair labour practice since 1978. The respondent was kept on daily wages and not made permanent. Therefore, he filed a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, (for brevity, "said Act" hereinafter) against the petitioners and prayed that the respondent be given salary and allowances as per the permanent employee. Thus, all along, the case of the respondent was that he was working as a Clerk. Other employees junior to the respondent were made permanent. 3. In the written statement filed by the petitioners, in paragraph No.7, it is stated that the respondent was not appointed as a Clerk. For the post of a Clerk, one has to be B.Com.(I) or SSC passed with 45 per cent marks with knowledge of Marathi Typewriting @ 30 WPM and English Typewriting @ 40 WPM. According to the petitioners, the respondent has not passed SSC examination and that he was not knowing typewriting and therefore, he was not eligible to be appointed as a Clerk. Respondent was employed on daily wages basis whenever the work is available. It is denied 3 that he has completed 240 days of work in any year. In paragraph No.8 of the Written Statement, it is further stated that whenever vacancy arose, the petitioners have called upon the respondent and other persons for interview as per Rules of the Corporation. It is denied that the persons having lesser educational qualification than the respondent were selected. It is also stated that the complainant was given suitable chance to appear for the interview but he failed to pass the same. The interviews were for the posts of Watchmen and Forest Guards. It is further stated that whenever, there will be a vacancy of Watchman or Forest Guard, the complainant will be called for interview. 4. The Industrial Court has completely over looked the case made out by the respondent in his complaint and examination-in-chief. It was never case of the respondent that he was working as a Chaukidar. Merely because a question was put in the cross-examination by the officer of the petitioner Corporation, "Whether the respondent would work as Chaukidar?" learned Member of the Industrial Court has directed absorption of the respondent as a permanent employee to work in the category of Chaukidar with effect from 1.1.1992. 5. So far direction in paragraph No.4 of the order is concerned, Shri Shahane, learned Advocate for the petitioners has no objection therefor. He states that as per the educational qualification held by the respondent, he can be considered for the post that may be available and he says that the respondent would be considered at the first opportunity, however, he will have to compete with others. So far this part is concerned, in my opinion, there arises no question of interference. However, it is made 4 clear that the respondent shall compete with others for the post for which there would be a vacancy and which would be suitable for the educational and other qualifications of the respondent. 6. The Industrial Court in paragraph No.3 of the order has directed petitioners to absorb the respondent / complainant as a permanent workman in the category of Chaukidar with effect from 1.1.1992 and to give him benefits of permanency. In the first place, there was no such prayer even by the respondent, that he should be made permanent as a Chaukidar with effect from 1.1.1992. It was beyond the scope of the complaint. Secondly, it was not the case of the respondent / complainant that he worked as a Chaukidar, though he might be suitable for working as a Chaukidar. The main hurdle in the way of the petitioners is the law laid down in the case of Secretary, State of Karnakata Vs. Umadevi [(2006) 4 SCC 1], wherein, it is laid down that, as per the scheme provided under the Constitution and laws made thereunder, adherence to the rule of equality in public employment is the basic feature of the Constitution and since the rule of law is the core of the Constitution, recruitment to services in the Union Government and State Governments and their instrumentalities is governed by Acts, Rules and Regulations made in that behalf. Equality of opportunity is a hallmark and under the circumstances any employment which is not according to the rules cannot be protected. Their Lordships have also made it clear that there cannot be a back door entry. The benefits of permanency or regularisation cannot be granted on any employee merely because he completed 240 days of work in a given year. For appointment, the procedure as laid down by Rules has to be followed. In view of the law laid down in the case of Umadevi (supra) 5 and thereafter followed in various cases, the direction given in paragraph No.3 regarding absorption and conferring benefits of permanency on respondent / complainant cannot be upheld. To that extent, this writ petition needs to be allowed. 7. In the result, Writ Petition is partly allowed. Order of the Industrial Court giving directions in paragraph Nos.1 to 3 in the order dt. 6.2.1996 are hereby quashed and set aside. However, the direction in paragraph No.4 is maintained. 8. At this stage, Shri Bagul, learned Advocate for respondent / complainant states that Rs.300/- are deducted every month from the wages of respondent / complainant towards pensionary benefits and he prays that this order should not come in his way. Since, this is not a subject matter of the Writ Petition so also of the order of the Industrial Court, this Court does not wish to express any opinion thereon. 9. Rule, accordingly, made absolute partly. No order as to costs. (P.R.BORKAR,J.) ... akl