JUDGMENT V.R. Kingaonkar, J.
1. Rule. Rule is made returnable forthwith and finally heard with consent of both the parties.
2. Originally in all twenty-five (25) petitioners filed the present petition assailing the judgment of the Industrial Tribunal, Dhule in Complaint (ULP) No. 144 of 2004. Out of them, the petitioners No. 12 to 22, 24 and 25 withdrew the petition since they were absorbed and regularized in newly formed Nandurbar District, protecting their promotions in Class III cadre. The petitioners No. 1 to 11 and 23 are the only aggrieved persons now and the petition is pressed into service only to their extent. They were Class IV employees working on establishment of Dhule Zilla Parishad before they were temporarily promoted in class III cadre on 18th March, 1997. All of them are promotees and were given promotions in keeping the relevant recruitment rules. Rule 5 of Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967, provides for appointment to the class III posts by promotion as well as nomination. Thus, there are two sources of appointment and the only barrier created by Rule 6 is that the promotional posts shall not be filled in excess of 50%. Thus, the recruitment rules provide for filling up of promotional posts to the extent of 50%. The promotional posts are required to be filled up through the Departmental Promotion Committee (DPC). The promotions of all the petitioners were accordingly made through appropriate process by the DPC. They were found eligible and as such were promoted to the class III cadre and since 1997 they are working on the promotional posts without interruption, though for technical purposes a gap of one day was given while revising the orders of promotion from time to time. Still, however, they were not regularized in the promotional posts in spite of continuous service in such posts and the incidental benefits, such as increments or the benefit of assured career progression scheme etc., were not made available to them. Feeling aggrieved, they filed a complaint (ULP) No. 144/2004 alleging that the Zilla Parishad, Dhule/respondent had adopted unfair labour practice.
3. The respondent-Zilla Parishad contended that the petitioners were promoted on ad hoc basis, from time to time, only in order to fill up the posts as stop gap arrangement. They were not given regular promotions and as such they cannot claim any right. The Zilla Parishad contended that the petitioners cannot claim regularization when the regular procedure regarding the assessment of vacancy and availability of sanctioned posts was not properly considered. One of the contentions of the respondent was that only 25% of the posts could be filled up by promotion in view of the Government Resolution dated 15th April, 1991. The respondent further relied upon yet another Government Resolution dated 16th August, 1996 which provided for temporary promotions as well temporary nominations to the class III posts. The respondent submitted that it was not feasible to regularize the services of the petitioners and there was no unfair labour practice as such.
4. The learned Industrial Tribunal considered the rival contentions and held that the promotions of the petitioners were purely temporary and they could not have been regarded as regular promotees. The learned Industrial Tribunal further observed that the conduct of the petitioners was eloquent inasmuch as, they never grumbled about giving of one day's gap and accepted the promotional orders issued from time to time. The Industrial Court further observed that the petitioners cannot claim regularization when the promotions were only by way of stop gap arrangement. Consequently, the complaint filed by the petitioners came to be rejected with a direction that the case of each of them shall be considered for regularization as and when they are found eligible.
5. The learned Counsel Shri Shelke contended that the approach of the Industrial Court is erroneous. He points out that for several years the petitioners are working in Class III cadre. He further points out that the petitioners were found eligible for promotion. He points out that the promotions were given to them after following the recruitment rules. So, it is his contention that one day's gap ought not to have been given and it cannot make any difference in their status. He urged, therefore, to set aside the impugned judgment and to declare that the petitioners are regular promotees and entitled to all the incidental benefits arising out of their promotions. As against this, the learned Counsel for respondent-Slid Nitin Chaudhari supported the impugned judgment and also relied upon "Keshav Chandra Joshi and Ors. v. Union of India and Ors." in support of his contention. He argued that the promotions were "fortuitous" and by way of stopgap arrangement. He urged to dismiss the petition.
6. Admittedly, the appointment orders were issued from time to time and the services of the petitioners in the class III cadre have been continued. It is nobody's case that these petitioners suffered from lack of necessary qualifications. Though the expression "purely temporary" was used while issuing the order of promotion yet, the nature of the promotion by itself is not for any temporary purpose. The promotions were effected on the vacant posts. It is also not the case of the Zilla Parishad that some tenure posts were created on ad hoc basis and as such, so called stop gap arrangement was required to be made. All the promotions were effected in regular manner and as per the provisions of the relevant Recruitment Rules. So, these promotions cannot be treated as fortuitous promotions. The expression "fortuitous" is used when official exigency requires filling of the posts either de hors the rules or immediately for some purposes without asking the candidates to go through the routine procedure of promotion. The petitioners were not promoted de hors the recruitment rules and as such, their promotions could not be branded as fortuitous. The petitioners could not be treated as temporary promotees for such a long period.
7. Though it is true that ad hoc arrangement can be made when the vacancies are required to be filled up and such ad hoc appointees may not have a right of regularization yet, such ad hoc appointments cannot be continued beyond a reasonable period. The petitioners could not have been put on such kind of temporary promotion for years together.
8. The learned Counsel Shri Shelke would submit that some of the petitioners were later on given further promotions on temporary basis. He would further submit that some of the petitioners were allowed to appear for the departmental examinations for further ladder of promotion. Thus, some of them were permitted to obtain eligibility for further promotions and have marched ahead. It would be impracticable and irrational to say that still they are temporary promotees. Such uncertainty in service career is impermissible. The learned Tribunal did not appreciate the legal status of the petitioners in the proper perspective and in keeping with the service law jurisprudence. The learned Tribunal has observed :
In my opinion, the complainants are not entitled to say so, because if their promotion orders are minutely perused, then specifically it is stated in the said orders that, their promotions are purely temporary. After giving gap of one day, fresh promotion orders were issued from time to time, but at no point of time, the complainants have raised any voice and they kept mum. So keeping silence on the part of the complainants, at the relevant time, amounts to acceptance of stop-gap-arrangement made by the respondents.
9. As stated earlier, the promotions of the petitioners could not be regarded as stop gap arrangement inasmuch as, they were not promoted against temporary posts; nor they were promoted without eligibility for promotion. The petitioners were working on promotional posts though gap of a single day was being created under the administrative orders of the Zilla Parishad. The petitioners were required to keep silence due to the hope that one day or the other they would be regularized. The hope of the petitioners was frustrated when some of the other employees were regularized and their claims were not favourably considered. The conduct of the petitioners cannot be interpreted as their acceptance of the so called stop gap arrangement. For, they were the needy persons and there was no specific waiver of their right for promotion. Indeed, the promotions of the petitioners could not be regarded as irregular.
10. The learned Counsel Shri Chaudhari for the respondents invited my attention to the Government Resolution dated 15 April, 1991. He points out that only 25% of the promotional posts were cleared for filling up by way of promotion. Consequently, the regularization could be only to the extent of 25% posts which were allowed to be filled in by way of promotion. The question of regularization would depend, no doubt, upon the availability of clear vacancies within the quota of the promotees. The import of Rule 6 of the Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967 is that the filling up of the posts by promotions could be upto 50%. The administrative instructions given under the Government Resolution dated 15th April, 1991 cannot override the rules. Those administrative instructions were issued in order to cope up with the situation which existed at the relevant time and, accordingly, the promotions were effected only to the extent of 25% of the available vacancies. It is not the case of Zilla Parishad/respondents that excessive promotions were effected at that time beyond 25% of the total vacancies in the cadre. The vacancies for each year were required to be identified in accordance with the instructions contained in the Government Resolution dated 15th April, 1991 and out of them, 25% ought to have been filled by promotion.
11. Considering the tenor of the Government Resolution dated 16th August, 1996, the additional posts created from 1st August, 1996 were allowed to be filled up as per the roster and in accordance with the recruitment rules. The only rider was that if within three months of the promotion or nomination, as the case may be, some candidates would be available as per selection list of the Selection Board, then such promotees or nominees could be reverted to their original posts. No such selection list was available within the period of the said three months after promoting the present petitioners and hence there was no occasion to revert either of them. Consequently, the promotions of the petitioners were required to be regularized in accordance with the availability of clear vacancies and approval of the posts which were created in the Government Resolution dated 16th August, 1996. It was quite unfair to keep their claims for promotion in abeyance or in suspended position for such a long duration from 1997 onwards uptil 2003-04. I am of the opinion that the learned tribunal committed an error while observing that the petitioners had accepted the stop gap arrangement made by the respondents and hence their claims for regularization in the promotional posts could not be granted.
12. Reliance placed on "Keshav Chandra Joshi and Ors. v. Union of India and Ors." (supra) appears to be misplaced. The authority deals with the question of seniority. In the present case, it is not necessary to consider the question of seniority of the promotees and nominees. It is necessary to first regularize the promotions in accordance with the dates of vacancies available in the class III cadre, place each of them appropriately in the common seniority list and to grant benefit of increments etc. as may be available as a result of such promotions.
13. In the result, 1 am inclined to hold that the respondents-Zilla Parishad committed unfair labour practice qua the petitioners and that the tribunal ought to have allowed the complaint application. The impugned order deserves to be set aside and as such, the petition is allowed, the impugned order is set aside. The respondents are directed to regularize the promotions of the petitioners, in accordance with the available vacancies, as per the roster points and in keeping with the accelerated promotions of the reserved candidates as well quota available to the promotees and thereafter, to prepare a common seniority list accordingly. The petitioners shall be given benefit of the increments, assured career progression scheme and other incidental benefits arising out of such promotions after preparation of the appropriate seniority list which shall be drawn within a period or four months. The seniority list shall be prepared after calling objections and adopting necessary procedure as required under the rules. Rule made absolute in the above terms. Petition allowed with no order as to costs.