VIDHYUT KAMDAR SANGH vs GUJARAT URJA VIKAS NIGAM LIMITED & 3

When this Civil Application is listed on Board for hearing, with consent of the learned advocates appearing for both the sides, we have heard the Letters Patent Appeal itself and the same is being disposed of by this order.

This Letters Patent Appeal is filed under Clause 15 of the Letters Patent by the original petitioner, a registered trade union under the provisions of the Trade Union Act, 1946, aggrieved by the judgment of the learned Single Judge dated 02.08.2016 passed in Special Civil Application No.4589 of 2016.

The aforesaid Special Civil Application is filed with the prayers which read as under: "14(A) That Your Lordships be pleased to issue an order, direction and / or writ in the nature of mandamus and / or any other appropriate writ, order or direction, directing the respondent No.3 to immediately refer the dispute to the Industrial Tribunal for adjudications;

(B) Your Lordships may be further pleased to direct the Industrial Tribunal to decide the reference within a period of 6 months from the date of receiving the reference order from the appropriate government;

(C) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to restrain the respondents No.1 & 2, their agents and servants from conducting further examination for the post of Plant Operator Grade I pursuant to the Advertisement dated 28-12-2015;

(D) Any other and such further relief as the Hon''ble Court deems fit and proper in the interest of justice together with costs;"

The learned Single Judge, by judgment dated 02.08.2016, while declining for grant of relief, seeking direction to refer the dispute to the Industrial Tribunal, quashed the Advertisement/ Notification dated 28.12.2015 issued by the respondent- employer to fill up the vacancies of Plant Operator.

It is the case of the petitioner that respondent no.2 issued Advertisement/ Notification dated 28.04.2012, to fill up posts of Plant Operator Grade-I, for which examination was conducted and results were declared. It is stated that in the aforesaid advertisement, condition was imposed that candidate will be selected purely on merit and the candidates, who secured 50% of marks will be appointed to the post of Plant Operator Grade-I. It is alleged that on 28.12.2012, 153 candidates were shown successful. Based on the same a merit list was prepared. It is alleged that instead of preparing list of selected candidates based on merit, a cadre based select-list was prepared. It is stated that pursuant to declaration of results, respondent no.2 issued appointment orders in respect of 76 candidates on different dates and 77 candidates, who are found placed in the list of successful candidates were not given appointment yet. While referring to General Standing Order 315 (GSO-315), it is submitted that if a departmental candidate is required to be promoted through channel of promotion, in that case the cadre seniority is required to be taken into consideration.

Further, respondent no.2 has issued further advertisement dated 28.12.2015, inviting applications from amongst departmental candidates to fill up vacancies of Plant Operator Grade-I. It is the allegation of the petitioner that pursuant to earlier advertisement, dispute is raised by the petitioner-union, the same is pending consideration before the Conciliation Officer. Precisely, it is the allegation of the petitioner that when the dispute is pending before the Conciliation Officer, second advertisement is given, as such recruitment process needs to be stayed.

After hearing the learned counsel for the parties, the learned Single Judge found that earlier selections were made based on the agreement entered into by the employer with a different union, viz. Akhil Gujarat Vidyut Kamdar Sangh at Rajkot, which is impleaded as party- respondent no.4.

The learned Single Judge having found that the notification which is issued is for recruitment of 50% of vacancies from open market and found that there is no reason to restrict such recruitment only from departmental candidates, quashed the notification/ advertisement dated 28.12.2015. Having regard to the very legal position that recruitment notification itself is to fill up 50% vacancies from open market, the learned Single Judge also recorded a finding that no case is made out to refer the dispute as pleaded.

In this appeal, it is submitted by Shri T.R. Mishra, learned counsel appearing for the appellant that there is long standing practice to consider only departmental candidates even for quota meant for recruitment by way of direct recruitment, viz. 50%. It is submitted that in any event the learned Single Judge ought not to have rejected the plea of the petitioner to direct the respondents to refer the dispute to the Industrial Tribunal. It is submitted that as the conciliation proceedings are pending before the Conciliation Officer, on submission of report by Conciliation Officer, it is for Government to decide the matter, but at the same time the learned Single Judge committed error by deciding the claim of the petitioner- union to refer the dispute. It is further the case of the appellant that the learned Single Judge committed error in quashing the notification/ advertisement dated 28.12.2015. On the other hand, Shri Dipak R. Dave, learned counsel appearing for the respondent-Corporation submits that as direct recruitment cannot be limited to departmental candidates, the respondent- Corporation has accepted the judgment of the learned Single Judge and taken steps to appoint Plant Operators from open market. It is submitted that as per the General Standing Order of the company, 50% quota is meant for recruitment by way of direct recruitment for the posts of Plant Operators.

Having heard the learned counsel for the parties, we have perused the order passed by the learned Single Judge and Standing Orders of the company. It is not in dispute that the notification which was issued vide advertisement dated 28.12.2015 is to appoint