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Judgment
K.S. Jhaveri, J.—In this petition the petitioners have prayed for the following relief:
A. Your Lordships may be pleased to issue a writ in the nature of Mandamus or any other appropriate writ, order or direction on the respondents and be pleased to quash and set aside advertisement dated 28-3-2002 for the post of sub sanitary inspector, and be pleased to direct the respondent Corporation to fill in the posts of sub sanitary inspector only on the basis of seniority only from amongst the Petitioners.
The case of the petitioners is as under:
2.1 The petitioners are regularly employed multipurpose workers and possess all the qualifications to become sub sanitary inspector. They filed a reference being Reference I.T. No. 144 of 1977 before Industrial Tribunal, Ahmedabad raising a demand that whenever any vacancy arises in any department of the Corporation the same should be filled in by giving such temporary or permanent vacant posts to employees of the same department on the basis of their seniority cum merits. In the said reference the following order was passed:
[i] For all posts carrying pay-scales upto Rs. 550-900 promotions should be given on the basis of seniority only.
[ii] For posts carrying pay-scales higher than Rs. 550-900 the present practice of filling up the posts by selection on the basis of merits should continue.
[iii] In no case temporary charge of a post should be given to an employee for more than six months. The post should be filled, in a regular way, within six months.
2.2 Thus, according to the petitioners, the award specifically provides that for all the posts carrying pay scale upto Rs. 550-900 should be filled in on the basis of seniority only and the said award in the said terms came to be confirmed in Special Civil Application No. 2955/83.
2.3 The respondent Corporation issued an advertisement inviting applications from general public for the post of Sub Sanitary Inspector. The petitioners approached the respondent Corporation stating that they posses requisite educational qualification and in view of the judgment and award the posts may be filled up. This request was rejected and therefore the present petition was filed.
Mr. Raval for the petitioners submitted that the post of Sub Sanitary Inspector originally falls in the old pay scale of Rs. 550-900 which is revised to Rs. 4000-6000 and therefore as per the award passed in Reference I.T. No. 144 of 1977 the posts are required to be filled on the basis of seniority only and therefore the respondents ought not to have issued the advertisement. He submitted that the Tribunal applied the rule of reason by dividing the posts in terms of pay scales and made all the posts upto the pay scale of Rs. 500-900 as promotional posts to be filled in on the basis of seniority only. According to him the judgment of the Labour Court is well founded because of the fact that for the posts above the pay scale of Rs. 550-900 no promotional avenues have been provided and all the posts are to be filled in only on the basis of merits. He therefore submitted that the respondent ought not to have issued the advertisement.
Mr. Pranav Desai, learned Advocate for the respondent submitted that the award is already challenged by the respondent Corporation which is still pending for final hearing. According to him the present petitioners are not covered by the said award. He submitted that the post of Sub Sanitary Inspector is a selection post and not a promotional post and therefore the petition itself is misconceived and the petition deserves to be dismissed.
At the time of admission this Court ordered that the appointment made tot he post of Sanitary Sub-Inspector pursuant to the advertisement dated 28th March 2002 shall be subject to the result of this petition.
Before proceeding further it is required to be noted that Special Civil Application No. 5250 of 1991 came to be filed praying for a direction to the respondents to fill in the posts of Junior Clerk by way of promotion and seniority only. This petition was based on the award passed in Reference I.T. No. 144 of 1977. This Court vide order dated 9th July 1992 dismissed the said petition. The operative part of the order reads as under:
In my opinion, this is not the position what has been granted is that promotions are to be given in the aforesaid scale on the basis of seniority and for the rest merit is the criteria. In either event, therefore, there could be a recruitment through the source of promotion for the posts carrying the aforesaid pay-scale as well as by bringing candidates from outside and for the posts carrying higher pay scale, the promotion can be on the basis of merit or as the word used "selection on the basis of merit" where seniority certainly will not be the criteria. It necessarily admits of a situation that candidates can be appointed from outside also. In either event, therefore, if at will there was a demand of the post being filled in by way of promotion and by that the workers meant "filling up of all the posts" certainly, it has been tot he aforesaid pay scale and further, in my opinion, it has been restricted so as to fix the criteria for promotion namely seniority.
L.A. Mr. Raval has pointed out that Special Civil Application No. 8698 of 1990 pertaining to junior Clerks has already been admitted. In my opinion, that is hardly of any relevance.
He has also relied on a judgment rendered by learned single Judge in Special Civil Application No. 2955 of 1983 on 24.2.1984. On going through the judgment, I found that the dispute related to the post of Motor Mechanic which the Corporation was claiming to be not falling within the pay scale of 550-900. On factually verifying the position, the learned Judge found that it is a post falling in that category only. L.A. Mr. Raval has further drawn my attention to paragraph 4 of the aforesaid judgment where dispute No. 1 that was referred to the Industrial Tribunal for adjudication in Reference (11) No. 144 of 1977 was quoted, as it was published in the Gujarat Government Gazette, Part-I dated 6-11-1975. In the said Reference the learned Tribunal Member Mr. M.U. Shah had observed that promotions are to be given from amongst the employees of the concerned management and it is only when senior man is found to be not suitable for the post or there is a positive demerit that the senior will not be promoted. It is only in the extreme case of no suitable employee in the service of the Corporation being available for the posts which have been fallen vacant, that the post can be filled in by inviting applications from the members of the Corporation in other departments or by advertising the posts. This observation is with regard tot he case between the Ahmedabad Municipal Corporation and its workmen.
It is nobody''s case that such demand was ever raised and what has been tried by Mr. Raval is to interpret the said demand referred to at page 11 to mean this and secondly, even if this demand is made, the learned Tribunal Member Mr. M.U. Shah in the aforesaid case of Ahmedabad Municipal Corporation was pleased to admit, though as extreme, the possibility of the case of the Corporation going out in the open market for direct recruitment. In my opinion, this observation does not help the Petitioners.
The petition is, therefore rejected. Notice is discharged. Interim relief is vacated.
To counter the said decision Mr. Raval submitted that this Court in the aforesaid case has taken a novel view with reference to the post of junior clerk. The petitioners had filed Letters Patent Appeal No. 287 of 1992 against the judgment passed in Special Civil Application No. 5250 of 1991 which is admitted and it was thereafter dismissed for default and MCA for restoration was filed and the petitioners are not aware of the present status.
However, the question to be considered is whether the advertisement in question was issued contrary to the statutory rules or not. The petitioners have not produced any statutory rules on record. The entire case is based only on the basis of the award of the Tribunal. Learned Advocate for the petitioners is also not able to point out whether the advertisement was issued contrary to the statutory rules nor did he make any effort to produce such statutory rules on record. In absence of such rules it will not be possible to decide the issue and in absence of any plea in the petition the presumption is that the advertisement is issued in accordance with the statutory rules.
In the premises aforesaid, I do not find any merits in this petition. This petition is therefore dismissed. Rule is discharged with no order as to costs.