ORDER
Anand Byrareddy, J.
Page 1094
1. Heard the counsel for the petitioner and the respondent.
2. The facts of the case are:
The respondent was employed by the petitioner North-West Karnataka Road Transport Corporation, Hubli, (hereinafter referred to as ‘the Corporation’ for brevity) as an artisan. It transpires that he had retired from service in the year 1988. The said respondent had raised a dispute through the Trade Union of the employees of the petitioner Corporation and the same was referred to the Industrial Tribunal, Hubli (‘the Tribunal’ for short) for adjudication. It was contended that the respondent was denied promotion effective from the year 1971. The said dispute was however raised in the year 2001. The petitioner Corporation had contested the claim. The Tribunal, however, directed the Corporation to accord promotion to the respondent to a higher post with effect from 13.10.1971 and to re-fix his scale and accord all monetary benefits Page 1095 consequent thereto, by an award made in the year 2003. It is in this background that the petitioner is before this Court.
3. Elaborating further, the counsel for the petitioner would further contend, that the seniority list prepared by the Corporation was only on an ad hoc basis and the vacancies were filled up by promoting the employees on the basis of their working capacity and on the basis of officiating capacity. The State of Karnataka had not published a final seniority list after publishing the ad hoc seniority list in the year 1968. Hence, the petitioner Corporation had not considered its employees for increment purposes even though they were on the ad hoc seniority list. In any event, the said ad hoc seniority list was challenged before this Court by way of writ petitions in W.P.Nos. 1806-1808 and 7349 to 7354 of 1984, wherein this Court had struck down the seniority list prepared on the State Level basis and the petitioner Corporation was directed to prepare a seniority list on Division-wise basis. This exercise was undertaken. Accordingly, an ad hoc seniority list was prepared and published in the year 1990. In this list, the respondent’s eligibility date for seniority had also been indicated. This was however, after the retirement of the respondent from the petitioner Corporation. Incidentally, the Government was yet to finalise the ad hoc list prepared by the Corporation.
4. The counsel would further submit that since the respondent had retired from service in the year 1988, the mere fact that the respondent’s date of eligibility has been indicated in the ad hoc seniority list prepared, would not entitle the respondent to any benefit thereof. The inordinate delay in the petitioner raising a dispute ten years after the seniority list was prepared and twelve years after his retirement in respect of a claim, which would be pre-dated several decades before his retirement, does not entitle the respondent to any relief. However, the Tribunal has proceeded on the basis that since the respondent had made representations earlier and the delay in preparation of the seniority list was no fault of the respondent, the respondent would be entitled to the bent ill of seniority. The counsel would submit that this approach was entirely misplaced and in this regard he would place reliance on a judgment of this Court in the case reported in ILR 2000 KAR. 4090 for the proposition that a dispute raised after abnormal delay was liable to be rejected and would accordingly submit that the petition be allowed.
5. Per contra, the counsel for the respondent, would submit, that even though statement of objections has not been filed, the only question is whether the respondent would be entitled to the benefit of seniority, retrospectively. Admittedly, the employer Corporation has dithered in the preparation of seniority list and for reasons best known to it, has delayed in the preparation of seniority list. This is no fault of the respondent. The respondent has been consistently making a claim in this regard from inception, in the face of which, it is unfair to contend that since the respondent has attained the age of superannuation by the time the seniority list was prepared, that the respondent was not entitled to have the benefit Page 1096 of the same, is clearly contrary to the judgment of the Supreme Court in the case of Mohd. Ahmed v. Nizam Sugar Factory and Ors. 2005 SCC (L & S) 62, and would submit that the said case would apply on all fours to the present case on hand, in that, the Tribunal has rightly held in favour of the respondent and therefore, the petition is liable to be dismissed.
6. On these rival contentions, it is (sic) that it is not in serious dispute that the date of eligibility of the respondent for promotion that is sought to be claimed is consistent with the date of eligibility assigned in the ad hoc seniority list that has been prepared by the petitioner Corporation, in the year 1990. The only question, therefore, would be, whether the respondent could be denied the benefit of promotion with reference to the said date of eligibility. The Labour Court has categorically held that the respondent could not be denied the said benefit, since the respondent had consistently made a claim towards the same. The delay in preparation of the seniority list would not be a reason for denying the same. The counsel for the respondent has relied on the judgment in Nizam Sugar Factory’s case supra. The facts of that case were that promotion to the post of Supervisor ‘B’ Grade was due in the establishment of Nizam Sugar Factory Ltd. It appears that promotion exercise was undertaken and one L was promoted by an order dated 25.6.1992. This was challenged by two of the employees, namely, M and I. Their case was that M was the senior most employee in the zone of consideration for promotion to the supervisory B grade and that both were denied promotion and were superseded by L. This contention was accepted and the writ petition was allowed. The Sugar Factory preferred an appeal before the Division Bench. While disposing of the appeal, M was incorrectly noted as having died, whereas he was very much alive and in disposing of the appeal, his case was not considered at all and there was no benefit allowed or refused to the said M. The said M, however, retired in the year May, 1995, during the pendency of the writ petition. In the result, while working out the reliefs, since I was found to be the eligible candidate and she was held entitled for the difference of salary of which she was denied, The Supreme Court held, in an appeal by M, the same could not be denied to M who was even senior to I. In the light of the facts of that case, it is doubtful whether the same could be applied to the case on hand.
7. On the other hand, the Supreme Court in the case of Baij Nath Sharma v. Hon’ble Rajasthan High Court at Jodhpur and Anr. , has held that a retired employee could have a valid grievance only if any of his juniors had been given promotion from a date prior to his superannuation, but he cannot complain when promotions were made prospectively after his retirement. The facts of that case were as follows:
The appellant Baij Nath Sharma was a Judicial Officer of the Rajasthan Judicial Service. He retired from service on 1.6.1996. His grievance was that before his retirement there were vacancies in the Page 1097 promotion quota, against which he could be considered for promotion to the Rajasthan Higher Judicial Service. He claimed promotion from the date when the vacancy arose against promotion quota. The Rajasthan High Court (on its administrative side), however took a conscious decision in its Full Court Meeting in the year 1996, not to make further promotions till recruitments were made from the Bar, or otherwise, there would have been imbalance between the strength of promotees and direct recruits. On facts, it was found that no Judicial Officer, junior to the appellant, was promoted before his superannuation. On the other hand, four officers, who were senior to the appellant, were promoted after the appellant’s superannuation. In those circumstances, the Supreme Court, on consideration of the facts and circumstances held, that the appellant before it, was not entitled to promotion as claimed by him and the Supreme Court also noticed that the appellant may have been denied the benefit sheerly on account of inaction of the High Court (on its administrative side). But, that by itself would not enable the appellant therein to have become entitled to the relief claimed.
8. Applying the ratio laid down therein to the present case on hand, it is not the respondent’s case that the ad hoc seniority list had been prepared before the respondent attained his age of superannuation or that any of his juniors had been promoted before that date. Hence, it cannot be said that the Tribunal was justified in holding in favour of the respondent.
9. Accordingly the petition succeeds and is allowed. The impugned Annexure “E” is quashed.