COMMISSIONER NASHIK MUNICIPAL Vs. CHANDRASHEKHAR EKNATH PAGAR

JUDGEMENT

(1.) FIVE employees holding the post of Fireman under the Nashik municipal Corporation had approached the industrial Court in Complaint (ULP) No. 245 of 1999 filed under section 28 (1) read with items 5, 9 and 10 of Schedule IV of the MRTU and PULP Act, 1971 ("the Act" for short) and prayed for the relief of directions to the corporation to promote them on priority to the post of Junior Clerk under the Corporation and the said complaint came to be allowed partly by the Industrial Court on 6/10/2004. The Industrial Court held that the Corporation had engaged in unfair labour practice within the meaning of Item 9 of Schedule IV of the Act and consequently directed the promotions to be given to the complainants on priority basis than that of appointment by nomination, if any. The said judgment and order is under challenge in Writ Petition No. 4497 of 2005. Another set of 24 firemen working in the Fire Department of the petitioner-Corporation approached the Industrial Court in Complaint (ULP) No. 81 of 2003 with the same case and for the same relief. The learned member of the Industrial Court was pleased to allow the said complaint as well by his judgment and order dated 9/8/2006. The relevant portion of the order dated 9/8/2006 is reproduced as under:

(2.) THE Corporation had filed Written statements in both the complaints and opposed the same contending therein that under the Service Rule or the settlements or any Government Resolution there is no such provision whereunder the employees holding the post of firemen could apply for promotion to the post of Junior Clerk (non technical) despite the fact that they may be possessing the qualification of a graduate degree. The Corporation did not dispute that each of the complainants was a graduate. The Corporation further pointed out that in a complaint of unfair labour practice the relief of promotion could not be claimed unless such a right was vested in favour of the complainants either by Government resolutions, service Rules or settlements with the union. The Industrial Court was persuaded by the averments made by the complainants in as much as right from the year 1994 onwards some of the Firemen were promoted to the post of Junior Clerk and on the basis of the Resolutions passed by the Standing committee of the Municipal Corporation and when such a practice was prevailing in the past, there was no reason why the employees holding the post of Firemen could not be considered for promotion to the post of Junior Clerk. More particularly Resolutions passed on 12/2/1999, 15/2/2005, 15/1/2003 and 27/1/2005 were relied upon. In all these resolutions it was stated that fifty per cent of the posts of Junior Clerk would be filled in by nomination and remaining fifty per cent by promotion. The Industrial court held that the refusal to consider the complainants' candidature for promotion to the post of Junior Clerk amounted to breach of the resolutions passed by the corporation itself and, therefore, there was a case made out of unfair labour practice within the meaning of Item 9 of Schedule iv of the Act and consequently directions have been given to consider the complainants for promotion on priority basis as and when the recruitment is undertaken for the post of Junior Clerk and against the fifty per cent quota for promotion.

(3.) MR. Patil, the learned Counsel for the petitioner-Corporation submitted that the resolutions passed and as relied upon by the complainants must be in conformity with the service Rules framed under section 465 (1) (a)of the Provincial Municipal Corporations Act, 1949 and if the Rules so framed do not provide for promotion, mere passing of the resolutions by the Standing Committee or the elected representatives of the Corporation would not create a vested right in favour of the complainants so as to lay a complaint of unfair labour practice and seek directions from the Industrial Court. He further submitted that in the past it was not clear whether some Firemen were appointed to the post of Junior Clerk either by promotion or by nomination and the orders placed on record by the complainants were not clear. As per Mr. Patil the Industrial Court ought to have referred to the Rules for recruitment to various Class III and Class IV posts and more particularly the post of Junior Clerk (non technical ). Mr. Bhadrashete and Ms. Sarnaik, the learned Counsel for the complainants on the other hand, have supported the impugned orders. As per them the Industrial Court has considered the resolutions passed by the corporation from time to time and the past practice right from 1994 onwards and held that the complainants were entitled to be considered for promotion to the post of Junior Clerk. The view taken by the Industrial court is a possible view and it cannot be termed as perverse or manifestly erroneous so as to call for interference under Article 227 of the Constitution. The learned Counsel further urged that the resolutions passed by the Corporation ought to be binding at least on the same body and having passed the resolutions and acted on them in the past, it cannot be permissible now for the Corporation to take any other stand to defend its case, more so when all the complainants possessed the requisite qualifications for the post of Junior Clerk. It was further pointed out that though there are promotional channels on the technical side i. e. Fireman to leading Fireman etc. , unless technical qualifications are obtained such promotions on the technical side are not possible, whereas the complainants met the qualification requirements for the post of Junior Clerk and, therefore, the Industrial Court considered all the relevant aspects including eligibility and gave directions to consider the claims of the complainants for promotion to the post of junior Clerk while filling in the said posts by nomination as well.