B.P. Dharmadhikari, J.@mdashBy this writ petition, the petitioner-employer has challenged the order dated 26-10-1994 passed by the Industrial
Court in complaint (ULPN) No. 784 of 1993, directing the petitioner employer to confirm the respondent in the post of Traffic Controller with
effect from 28-4-1993 with all other consequential benefits of permanency. This Court has admitted writ petition on 23-1-1995 and on 18-10-
1995 directed the parties to maintain status quo. With the result, the respondent continues to work as Conductor even today.
2. The respondent was initially appointed as Conductor in 1972 and thereafter was confirmed in 1974. The next promotional post for him was that
of Traffic Controller and as per service rules, he was required to pass departmental examination for that post. Said departmental examination was
conducted in the year 1983 and the present respondent succeeded in it. The said examination was challenged by other employees/Union by filing
complaints ULPA No. 130 of 1983 and 143 of 1983 before the Industrial Court. During the pendency of these complaints, and as the post was
available, on 9-12-1984, the petitioner promoted the respondent as Traffic Controller against the vacancy reserved for direct sector. The said
promotion was in purely temporary capacity and without prejudice to the seniority, continuity or preference etc. It appears that the said order was
thereafter modified on 9-2-1988 and the respondent was temporarily promoted on said post but it was clarified that it was not against vacancies
reserved for direct sector. The respondent was thereafter orally directed not to work as Traffic Controller and to work as Conductor. He
challenged this oral direction by filing complaint (ULPN) No. 324 of 1988 and his reversion was stayed by the Industrial Court. This complaint
was disposed of on 28-4-1983 by the learned Member of Industrial Court by directing the present petitioner to consider the case of respondent in
the light of provisions of Rules 32(a) and 67(b) of General Standing Order by deciding the representation made by the respondent to it. The
respondent contended that said decision was not taken and on 5-6-1993, he was communicated that as he failed in Departmental Examination, his
representation for promotion to the post of Traffic Controller could not be considered and his promotion stood cancelled. He was advised to join
on his original post of Conductor from 6-6-1993. By other order of same date, he was also communicated his fixation in the pay scale of post of
Conductor. The respondent challenged these communications by filing complaint (ULPN) No. 784 of 1993 before the Industrial Court. He
contended that his case was not considered as per earlier directions of Industrial Court dated 28-4-1993. He further contended that there was no
question of respondent passing departmental examination because he was promoted against direct sector. The learned Member of Industrial Court
considered his prayer for grant of interim relief and by order dated 22-10-1993 passed below Exh. 2, said prayer was rejected. The respondent
thereafter approached this Court in Writ Petition No. 1205 of 1994 and on 7-7-1994, this Court expedited the proceedings in ULP complaint
filed by him before the Industrial Court. Accordingly, the Industrial Court decided the complaint finally by impugned order dated 26-10-1994.
3. The Industrial Court found that the petitioner-employer did not consider the case of respondent as directed by it by its earlier order dated 28-4-
1993 and the defence of employer that respondent did not pass departmental examination was totally irrelevant in view of provisions of Rule 32(a)
which require said examination to be passed only if promotion was given to the departmental candidate against departmental quota. This order
forms subject-matter of challenge in present writ petition.
4. Heard Shri Wankhede, learned Counsel for the petitioner and Shri Mohokar, learned Counsel for the respondent.
5. Shri Wankhede, learned Counsel has contended that the finding of Industrial Court that respondent has been promoted against vacancy
reserved for direct sector recruitment is itself incorrect. He invites attention of the Court to subsequent order dated 19-2-1988 to substantiate his
contention. He also points out that this order is duly exhibited by learned Member of Industrial Court and it has been found by the learned Member
of Industrial Court that the petitioner could not have illegally and arbitrarily altered the position to the prejudice of present respondent. He contends
that this order and finding of Industrial Court is totally illegal because there is no such challenge by the respondent before it. He further states that
even for promotion against vacancies reserved for direct quota, departmental examination is required to be passed. He states that the reasoning put
forth by the learned Member of Industrial Court is totally incorrect and shows total non-application of mind. In support he invites attention of this
Court to Rule 32(a) and Rule 10 of G.S.O. 503 and also to relevant recruitment rules laying down qualifications for such recruitment.
6. Shri Mohokar, learned Counsel for the respondent contended that no such material has been pressed into service before the Industrial Court.
He states that Industrial Court has considered provisions of Rule 32(a) of G.S.O. 503 and has correctly recorded that passing of departmental
examination is not required for respondent. He argues that there was the only said reason contained in the order of reversion and Industrial Court
having found it to be illegal passed order directing the petitioner to grant said post of Traffic Controller to present respondent. He further states that
reliance upon the order dated 19-2-1988 is totally misconceived because such order was never served upon present respondent at any point of
time. He states that all the while i.e.. till his reversion, respondent continued to work against a vacancy reserved for direct sector. He also invites
attention to General Standing Orders relating to Recruitment Rules and educational qualifications. He states that in any case the present respondent
satisfies the requirements laid down for such direct recruitment.
7. The perusal of order dated 28-4-1993 passed by the Industrial Court reveals that some application was moved by present respondent in
complaint (ULPN) No. 324 of 1998 and in it he mentioned that he has passed departmental examination held in the year 1990. The said fact is
denied by present petitioner. In view of this fact of passing of departmental examination mentioned by him in this application, the respondent
contended that as he had been working on the post of Traffic Controller for more than eight years and said post was reserved for direct sector and
it was not filled in, his case ought to be considered as per Rules 32(a) and 67(b) of G.S.O. 503. The learned Member of Industrial Court found
that his case can be considered by present petitioner in the light of said provisions and accordingly directed the present petitioner to consider his
case. The petitioner has thereafter on 5-6-2003 communicated to him that as he has failed in departmental examination, his representation for
giving him promotion to the post of Traffic Controller cannot be entertained and his temporary promotion on that post was cancelled. This order is
passed by specifically mentioning the orders dated 28-4-1993 passed by the Industrial Court above and also by mentioning respondent''s
representation dated 30-4-1993. The Industrial Court has not found that the contention of present petitioner in said communication that the
respondent has failed in departmental examination conducted by it for the post of Traffic Controller is false. In view of this, the Industrial Court
ought to have found out whether the present respondent satisfied the other requirements imposed by Rule 32(a) or other relevant rules or
provisions contained in Service Regulation or General Standing Order governing the respondent. It cannot be forgotton that the employment with
petitioner is public employment and is therefore regulated by Article 14 of Constitution of India.
8. The provisions of Rule 32(a) read as under:
32(a). When a suitable candidate is not available for direct recruitment to a post reserved for direct recruitment, a suitable departmental candidate
may be given a purely temporary promotion lasting up to such time as a suitable direct recruit is available for appointment. A fresh attempt shall be
made to get a suitable direct recruit by re-advertising the post. If, after one year from the date of the temporary appointment of the departmental
candidate and even after making a fresh attempt no suitable direct recruitment is available, the Competent Authority may consider the question of
making the appointment of the departmental candidate substantive.
Thus, it is apparent that post of Traffic Controller can be filled in through two sources i.e. through direct recruitment or through suitable
departmental candidate. If suitable candidate is not available, vacancy in direct sector can be filled in through departmental candidate in purely
temporary capacity. It further postulates that a fresh attempt shall be made to get a suitable direct recruit by re-advertising the post. If, after one
year from the date of temporary appointment of the departmental candidate and after making a fresh attempt no suitable direct recruit candidate is
available, the Competent Authority may consider the question of appointing such departmental candidate in substantive capacity. Thus, there has to
be temporary promotion against a post reserved for direct recruitment only if direct recruit candidate was not available and then a fresh attempt to
seek such direct recruitment has to be made by re-advertising the post and if suitable candidate is not available, and the candidate has completed
one year of his temporary promotion, the authority can consider him for substantive appointment in the facts of present case, the Industrial Court
has overlooked these requirements of Rule 32(a). It has not observed anywhere in its order that before or after temporary promotion given to the
present respondent, there was fresh advertisement and fresh attempt was made by the petitioner and they failed to secure suitable candidate from
direct sector in it and hence they continued present respondent in temporary capacity. The learned Member of Industrial Court, therefore, was not
justified in directing the petitioner to give post of Traffic Controller to present respondent only because it found that passing of departmental
examination was not necessary in view of provisions of Rule 32(a).
9. Even provisions of Rule 10 of the General Standing Order 503 states that post intended to be filled in by direct recruitment are to be advertised
and are to be filled in by inviting application through such advertisement. There cannot be any other mode as the employment with petitioner is a
public employment.
10. Shri Mohokar, learned Counsel for the respondent has invited attention to recruitment, promotion, seniority and qualification procedure of
present petitioner as modified upto 8-8-1985. He invites attention to Entry No. 142 in Schedule ""D"" appended to these rules and states that for the
post of Traffic Controller, the candidate coming from direct sector has to pass SSC Examination and must possess experience of field work in
relation to Traffic work and must possess capacity to do such field work and his age has to be upto 28 years. He states that as against this, a
conductor is required to pass only SSC examination and he has to know reading and writing in regional language and must possess a badge issued
by the Regional Transport Office. He should not be above 35 years and he should be competent to give security and has to satisfy physical
standard mentioned in item 150 of this schedule. According to him, therefore, the petitioner could have considered the case of the respondent in
this background and because of failure on the part of the petitioner to do so, the learned Member of Industrial Court was justified in ordering his
promotion as Traffic Controller.
11. Shri Wankhede, learned Counsel for the petitioner, on the other hand, invites attention to modified requirements of said schedule and states
that a candidate coming from direct sector for the post of Traffic Controller has to pass 12th Standard examination and has also to satisfy
requirement of physical standards as mentioned in amended provision i.e. Item No. 14. He also states that the eligibility conditions in relation to
Conductor are also modified later on. Shri Mohokar, learned Counsel states that the modified terms and conditions and eligibility norms will not
apply to the case of present respondent.
12. As already stated above, the learned Member of Industrial Court has allowed the post of Traffic Controller to present respondent only after
observing that a candidate coming from direct sector is not required to pass departmental examination. However, the question whether other
eligibility norms prescribed in service regulations/General Standing Order for such direct recruitment will be applicable to respondent is not gone
into by it. It has also ignored the fact that employment with present petitioner is public employment and therefore a candidate seeking employment
with it has to comply with certain procedural formalities. Thus, I find that the Industrial Court has not exercised jurisdiction available to it in
accordance with law. The status of respondent after 9-2-1988 is also not decided by it in view of its finding that petitioner could not have issued
said order dated 9-2-1988. However, there is absolutely no discussion as to why petitioners could not have shifted respondent from vacancy in
direct sector to vacancy in departmental sector as respondent did not proves any legal right to occupy such promotional post.
13. Shri Mohokar, learned Counsel for the respondent argues that the burden to show that the present respondent did not satisfy these eligibility
terms and conditions was upon the petitioner and as the petitioner failed to discharge it, the learned Member was justified in passing the impugned
order. Shri Wankhede, learned Counsel, on the other hand, contends that as the present respondent approached the Industrial Court, it was
necessary for him to show that he fulfilled the norms laid down for direct recruitment. I find that the employment with petitioner is public
employment and is governed by Rules and Regulations and hence when the learned Member of Industrial Court ordered the post of Traffic
Controller to be given to present respondent, it was obligatory for the learned Member of Industrial Court to find out whether rules of recruitment
applicable to the appointment with the petitioner were satisfied or not? The impugned order of Industrial Court is thus incomplete not only on facts
but also on law. Upon enquiry, it is learned that at present the respondent is about 52 years. In such circumstances, for the reasons mentioned
above, while quashing the impugned order of Industrial Court, I direct the learned Member of Industrial Court to decide afresh complaint (ULPN)
No. 784 of 1993 restored back to its file as early as possible and in any case within a period of four months from the date of receipt of this order,
after giving opportunity to the parties to file relevant documents and to lead oral evidence, if any, on the points mentioned above. Both the learned
Counsel seek leave to amend their pleas so as to place the exact factual position on record before the Industrial Court. Said leave is accordingly
granted.
14. Writ Petition is thus allowed partially. Rule is made absolute in above terms. There shall be no order as to costs. Certified copy expedited.