- (1.) D. P. Singh, J. Heard learned counsel for the parties.
(2.) THIS writ petition is directed against an award of the labour Court dated 2nd February, 1990 by which the respondent workman has been granted the post and pay scale of Automobile Mechanic in the petitioner organization. Brief facts are that the respondent workman was appointed as Helper on 1-4-1969 and on 25-6-1982 he was promoted as a skilled mazdoor. By a letter dated 31st December, 1980 he was appointed in adhoc arrangement to the post of Fitter Grade-II to discharge the functions of Auto Mechanic w. e. f. 1- 11-1980 to 31-12-1980. This adhoc appointment was further extended from 1st of January, 1981 to 31st of April, 1981. The arrangement was necessitated by the death of one Pooran Singh. The petitioner was also recommended for being given regular appointment on the said post, but he was not granted regular appointment and when reverted to his original post, he lodged a conciliation case and upon a failure report, the matter was referred under Section 4-K of the U. P. Industrial Disputed Act, which was registered as Adjudication Case No. 104 of 1988 by the Labour Court. The case of the petitioner before the labour Court was that the promotion of the workman was not in accordance with the U. P. State Electricity Board Operating Service Regulations, 1972 (hereinafter referred to as the 1972 Regulations) and further the workman was not qualified in view of the qualifications prescribed in the 1977 Regulations. It was also urged that the workman was given only temporary appointment for six months and in fact was not discharging the functions of an Automobile mechanic. The labour Court found that the 1972 Regulations were not applicable as the same were not approved by the Board. Relying on the two orders granting temporary promotion, the labour Court held that the workman was entitled to be designated as automobile mechanic with its pay scale. The first contention of the learned counsel for the petitioner is that 1972 Regulations had been framed under Section 79-C of the Electricity Supply Act, 1948 and the same had been approved by the Board and were in vogue. It is also contended that the workman had never raised this plea before the labour Court. It has also been urged that the post of Automobile mechanic was created for the first time under the year 1972 Regulations. In the alternative, it has been urged that prior to 1972 regulations, the Electricity Operating Staff Service Rules, 1955 were in force. In both these Rules recruitment and promotion to any skilled post was through a examination conducted by a committee so constituted under the aforesaid Rules. learned counsel for the petitioner has invited my attention to paragraphs 4 and 47 of the writ petition wherein it has been categorically stated that the 1972 Regulations apply to the workman. This specific averments in paragraph 7 has not been denied in paragraph 5 of the counter affidavit. Further in paragraph 47 of the writ petition, it has been categorically stated that the finding of the labour Court that the 1972 Regulations were not approved by the Board was factually incorrect, as the said Regulations govern the service conditions of the employees in the project, again this specific averments has not been denied in paragraph 23 of the counter affidavit. From a perusal of the written statement filed on behalf of the management it is clear that the management has set up the case that the qualifications as prescribed in the Rules were lacking, so far as the workman is concerned. The only basis of the aforesaid finding recorded by the labour Court was that the copy of the 1972 Regulations which was presented before it contained an endorsement to the effect that it was subject to the approval of the Board. But was never the case of the workman that 1972 Regulations do not apply. Before this Court also, the workman does not say that the 1972 Regulations do not apply. In fact, his non-denial before this Court, amounts to admission of this fact. Therefore, in my opinion, this finding of the labour Court was without any basis or evidence on the record. Thus, it can safely be held that the service conditions of the workman were governed by 1972 Regulations.
(3.) FROM a perusal of the Regulation 10 it is evident that the qualification for promotion or appointment to the post of Automobile Mechanic was High School together with I. T. I. certification along with atleast three years experience. It is not denied that the post of Automobile Mechanic is a skilled post and the procedure for recruitment as provided in Regulation 14 is through a Committee constituted for such purpose. It is not the case of the workman that he was ever selected by the Committee under Regulation 14 and also that he possessed the minimum qualification prescribed in 1972 Regulations. Therefore, it is apparent that the workman was not even eligible to be appointed under the Rules. It would be useful also to examine the 1955 Rules. Under the 1955 Rules which have been produced before this Court, there is no post of Automobile Mechanic, therefore, the source of recruitment/promotion for the post of Automobile Mechanic has not been provided. Nevertheless, in Part V, procedure for recruitment has been laid down. Rule 13 provides that all recruitment to skilled post should be by a committee consisting either of the Superintending Engineer and two senior most Executive Engineers or a committee consisting of three Executive Engineers nominated by the Superintending Engineer. Only unskilled staff can be appointed by the Executive Engineer of the division. Sub-clause (ii) of Rule 13 provides that recruitment will be through a practical or theoretical examinations and in case an incumbent is already in service, his service record would also be considered. Further, qualification has been provided in Rule 10 of the 1955 Rules. For posts under skilled staffs the qualification is atleast High School and five years experience. As already noted above, it is not the case of the workman that he was selected through any committee or held the minimum qualification.;