Bombay High Court has made a delicate order in an age-old service case between the Municipal Corporation and workers through their Union on the eligibility criteria for appointment as a Clerk. Neither willing to go along wholeheartedly with the employee nor the employer, the Court confirmed the Industrial Court's conclusion of injustice in favor of the employer but recalibrated relief so as to harmonize fairness to employees with sanctity of recruitment qualifications.
Background of the Dispute:
The dispute originated in rules framed by the Corporation during 1979 for the recruitment of clerical posts by a mix of direct recruitment, instances of preferential treatment, and promotion of the lower cadre staff. In 2001 and 2003, the Corporation issued fresh circulars inviting applications for backlog of reserved category posts of Clerks. These circulars added new qualification criteria — possessing a university degree, typing certificates in English and Marathi, and an MS-CIT computer certification. Interestingly, others who lacked these certificates were asked to obtain them within two years of the appointment date, facing cancellation of their appointments.
Some of the employees of lower cadre were appointed on these terms and promoted to Clerks in 2003. When many of them failed to produce the desired certificates within the specified time frame, the Corporation increased their probation period and kept reminding them continuously. Finally, by means of office orders issued in August and September 2007, the Corporation terminated those employees who failed to meet the requirements and sent them back to their original position.
The Union of twelve offended employees had moved the restoration before the Industrial Court pursuant to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, on the basis of violation of service conditions and unfair labour practices.
The Findings of the Industrial Court:
The Industrial Court partially held in favor of the Union, holding that unilateral imposition of additional qualifications altered service conditions without notice under Section 9A of the Industrial Disputes Act, 1947. The Corporation was directed to fix a cut-off date for issuance of certificates, and in the interim to retain the reverted employees as Clerks with all consequential benefits.
Aggrieved, the Corporation approached the High Court with the argument that the candidates had deliberately applied under the scheme of the circulars, that recruitment norms and not service conditions, and that reversions were a natural consequence of non-conformity.
Submissions Before the High Court:
Senior Counsel Mr. Bukhari, appearing for the Corporation, argued that the conditions were clear-cut from the very start, and applicants could not object to conditions they had accepted willingly. He believed that prescribing qualification is a field where the employer has a mandate, based on the order of the Supreme Court in Union of India v. Pushpa Rani (2008).
Alternatively, Union's Advocate Mr. Devdas reiterated the finding of the Industrial Court that the Corporation had unilaterally altered service conditions, failed to provide training facilities as required by government policy for reserved category personnel, and discriminated by granting selective relaxations to certain applicants while rejecting others. He relied on the doctrine that such differential treatment is unfair labour practice.
High Court's Reasoning:
The Court noted that the issue at hand was whether or not the new standards of qualification were to be considered recruitment rules or modifications in service conditions. An analogy was drawn from the Supreme Court judgment in Reserve Bank of India v. C.T. Dighe (1981), which emphasized the distinction between a "right to be considered for promotion" which constitutes a condition of service and a "mere possibility of promotion" which does not.
It believed in the following:
- Employees were aware of the terms of qualification while applying and accepted postings on the condition of following them.
- At the same time, selectivity while relaxing concessions and withholding training opportunities for reserved category applicants proved to be arbitrary and unjust.
- Massive reinstatement of reverted employees, as directed by the Industrial Court, was not deserved as some of them had voluntarily defaulted despite multiple opportunities.
Final Directions:
Balancing the competing equities, the Court granted the writ petition in part, modifying the relief of the Industrial Court to the following extent:
- Those employees who have already met the requirement of securing the certificate will continue as Clerks with full consequential benefits.
- Those staff members who have not already done so are given a one-year window period to obtain the necessary qualifications. On compliance, they shall be reinstated in the position of Clerk with consequential benefits.
- Staff members who continue not to comply even within the extended time of one year shall remain reverted to their original positions without further recourse.
Significance:
The decision reflects the Court's balancing act between the employer's right to prescribe qualifications for efficiency and the right of employees not to be subjected to arbitrary or discriminatory employment policy. In affirming that the rule of non-waiver of conditions of recruitment cannot be waived indefinitely, the decision also protects employees who were discriminated against by the disparate or unfair application of rules by the Corporation.
The writ petition was therefore partly granted and disposed off on amended terms.
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971
