B.H. Marlapalle, J.@mdashFive employees holding the post of Fireman under the Nashik Municipal Corporation had approached the Industrial Court in Complaint (ULP) No. 245 of 1999 filed u/s 28(1) read with Items 5, 9 and 10 of Schedule IV of the MRTU & 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:
3. The respondents are hereby directed to cease and desist from containing to engage in unfair labour practice by granting promotion to the complainants as per the seniority at par with the other employees from administration section and given promotion to complainants from the date from which other employees are promoted from 3/5/2003 onwards and continue to consider the complainants for promotion to the post of Jr. Clerks as and when vacancies arise as per the seniority, educational qualification and resolution passed from time to time in respect of the promotion.
4. The complainants are eligible for promotion with retrospective effect from 3/5/2003 onwards as and when other employees are given promotion within the period from one month from today.
The said order has been challenged in Writ Petition No. 5556 of 2007. Hence both the petitions filed by the petitioner -Corporation raise similar challenge and the point for consideration in both the petitions is also similar in asmuchas whether the employees holding the post of Firemen are entitled to be considered for promotion to the post of Junior Clerk by way of right. Hence both the petitions are being disposed off by a common judgment.
2. The Corporation had filed Written Statements in both the complaints and opposed the same contending therein that under the Service Rules 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 asmuchas 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 u/s 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.
4. On behalf of the complainants oral evidence was led and the documents like the past resolutions were brought on record. However, none stepped in the witness box on behalf of the Corporation and in support of the Written Statement and consequently though the Corporation placed on record some documents, they could not be exhibited and the Industrial Court stated no evidence (including documentary evidence) was placed before it by the Corporation, though the R. & P. indicates that some documents like the Service Rules etc. were placed on record by the Corporation.
5. When a complaint of unfair labour practice is filed and is allowed by a Labour Court or an Industrial Court the consequences are not only civil but indeed they are also penal. If the order is not implemented a criminal complaint u/s 48 of the Act is instituted praying for conviction and consequent sentence. This Court has consistently held that when a complaint of unfair labour practice is under trial before the Labour Court or the Industrial Court, it is for the complainants to make out a case of unfair labour practice on the part of the respondent -employer and findings of such unfair labour practice must be based on evidence which is reliable and not on the basis of the preponderance of probabilities. It is no doubt held by this Court that even the resolutions passed by a State Undertaking or any other establishment of the State Government will attract Item 9 of Schedule IV of the Act, if the complainants make out a case of its breach or non-compliance. At the same time Mr. Patil, the learned Counsel for the Corporation relied upon the following observations made in the case of
12. Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest. Indisputably, public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that the respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary. Had the High Court not recorded any finding on the merits of respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned Counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been a mere formality and grant of renewal would have been the inevitable result, though it may be against the policy decision. That renders the High Court judgment indefensible.
It was, therefore, contended by Mr. Patil that once the Service Rules have been framed u/s 465(1)(a) of the Corporations Act, the Service Rules must prevail and there is no estoppel in that regard even if some resolutions have been passed by the elected body which may run counter to the Rules so framed.
6. The record, as submitted by the Corporation, does indicate that in the year 1994 three employees holding the post of Firemen came to be appointed to the post of Junior Clerk and as per the Resolution dated 8/2/1999, 13 Firemen were appointed in the post of Junior Clerk. The record further shows that these appointments were by way of promotion. In the meeting held on or about 17/11/1994 certain amendments were suggested and approved by the Corporation to the approved Service Rules and procedure for appointment by nomination was amended as under:
3(1). When an appointment to a post is to be made by nomination, as prescribed in the regulations, names of the suitable candidates shall be called for from the local Employment Exchange Office and notice calling for applications shall be published on the notice board of the Corporation and by publishing an advertisement in the local newspaper. The period for tendering applications in such case shall not be less than 30 days from the date of publication of such advertise.
7. As per the Service Rules, in the Fire Fighting Section, the post of Fireman is in the lowest rank with the basic salary of Rs.220-375 at the relevant time and it is a feeder post to "Leading Fireman" which was in the payscale of Rs.260-495. The post of Junior Clerk under the Fire Fighting Section is in the payscale of Rs.260-495 which is equivalent to the post of Leading Fireman. On the administrative side also there is a post of Junior Clerk in the very same payscale. However, the post of fireman is in Class IV and the post of Junior Clerk is in Class III. The appointment to the post of Junior Clerk either on technical side or on the administrative side shall be made by,
(a) nomination from amongst the candidates who,
(1) unless already in service of the Corporation are not more than 28 years of age; university;
(2) possess a degree of a recognised
(3) are holding diploma of L.S.G.D.
OR
(b) Promotion from amongst the candidates who(1) have passed Matric Exam. with English as one of the subjects; or S.S.C. Self
(2) are holding Government; a diploma in Localand working Mukadam
(3) have as oran experience Mukadam-cum-Clerk 10 years of as 5 or yearsas Peons. Thus Junior the Clerk channel is both for by appointment way of to the nomination as post well of as by promotion but in the alternative and, therefore, it is for the Municipal Corporation to pass a resolution as and when appointments are required to be made to the post of Junior Clerk and decide whether to be filled in by nomination or by promotion or by both fixing certain percentage in each category. Thus, the resolutions passed by the petitioner-corporation and as relied upon by the complainants are in keeping with the Service Rules and in no way the Service Rules have been compromised or infringed.
8. Now coming to the point of complainants'' right for appointment to the post of Junior Clerk either by nomination or by promotion, the Rules indicate that nothing stops them to respond to the recruitment by nomination so long as they hold a degree of a recognised University and diploma of L.S.G.D. and are not more than 28 years of age. But for promotion to the post of Junior Clerk, in addition to the qualifications of Matric or S.S.C. with English as one of the subjects and a diploma in Local Self Government, there is a requirement of experience of years in the payscale of Mukadam-cum-Clerk or as Mukadam or as Peons for 10 years. Thus in the post of clerk by way of promotion the feeder posts are peons, Mukadam and Mukadam-cum-clerk. Fireman is not a feeder post for promotion to the post of Junior Clerk and, therefore, the resolutions to the extent they speak of promotions of Fireman to the post of Junior Clerk are in contravention of the Service Rules. There is no doubt that the employees in the post of Fireman are not eligible for being considered for promotion to the post of Junior Clerk and at the same time they cannot be deprived of responding to the said post if the recruitment is to be by nomination, provided they meet the requirements of qualifications and age. The resolutions passed by the Corporation and as relied upon by the complainants do not support their case for promotion to the post of Junior Clerk. Under these circumstances, the complainants could not lay a complaint of unfair labour practice under Item 9 of Schedule IV of the Act against the Corporation and its officers. It is evident that the Industrial Court did not consider the Service Rules, may be there was a failure on the part of the Municipal Corporation to bring to its notice the said Service Rules or the Service Rules escape the attention of the learned Member. When the appointment to the post of Junior Clerk is governed by the Service Rules framed u/s 465 of the Bombay Provincial Municipal Corporation Act, 1949, the Industrial Court committed a gross error in holding that the petitioners were guilty of engaging in acts of unfair labour practice within the meaning of Item 9 of Schedule IV of the Act and on the basis of the practices prevailing which had their origin in the resolutions passed by the Corporation from 1994 onwards. If the complainants aspire to go to the post of Junior Clerk, the only method available to them is to respond to the recruitment process by nomination in the said post. The complaints are not eligible for being promoted to the post of Junior Clerk as they do not meet the requirement of experience. The directions given by the Industrial Court are, therefore, required to be quashed and set aside.
9. Hence, these petitions succeed and they are hereby allowed. The impugned judgments and orders are quashed and set aside and the Complaint (ULP) No. 245 of 1999 and Complaint (ULP) No. 81 of 2003 and also dismissed. It is declared that the complainants have the right to compete for the posts of Junior Clerk as and when the same are sought to be filled in by nomination, provided they meet the requirements of qualifications and age and they are not eligible for promotion to the said post.
10. Rule is made absolute accordingly with no order as to costs.
