1. Petitioner Municipal Council has sought to assail judgment and order dated 11th September 2007 passed by the Member, Industrial Court, Amravati whereby the petitioner is directed to pay the wages as nonmatric clerk to the respondent no. 1 for the period during which he has actually worked on the post of Octroi Clerk.

2. Respondent no. 1 filed Complaint ULP No. 743 of 1996 before the Industrial Court, Amravati stating that he was initially appointed as Peon in 1964 and thereafter in the year 1969 petitioner Municipal Council directed him to work as Octroi Clerk. However, petitioner failed to pay wages and privileges as are applicable to nonmatric clerks. Respondent no. 1 thus alleged that petitioner indulged into unfair labour practice as covered by items 5, 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971.

3. Heard learned counsel for the parties. Perused the complaint, oral and documentary evidence and impugned judgment & order.

4. It appears that the learned Member of Industrial Court was guided by the admission in the course of cross-examination of the witness examined by petitioner as well as documentary evidence in the form of charts (exhibits 26 and 56) before the Court. There was evidence indicating that the complainant had worked as per muster roll (exhibit 26) during the period from 1.2.1994 to 26.5.1995 as clerk though, in fact, he was appointed as Peon by the Municipal Council when he was ordered to work as Octroi Clerk. Again, it appears that in the chart (exhibit 56), the complainant was ordered to work during the period between 31.3.1998 till 30.4.1999 as clerk. My attention is invited in the course of hearing to the evidence of Rajesh Khadse examined from the establishment of Municipal Council, Achalpur who admitted in the course of cross-examination that as per chart (exhibit 56), complainant had worked on the post of clerk. It is also clearly admitted position on record that complainant was not given any remuneration for having worked on the post of clerk. Admittedly, the said chart was prepared in respect of duties performed by persons working in Octroi Department of the Municipal Council. That being so, learned Member of the Industrial Court while passing the impugned order held that petitioner Municipal Council was liable to pay wages to the complainant since he had worked as clerk in Octroi Department during the period between 31.3.1998 to 30.4.1999 as per exhibit 56.

5. Learned counsel for the petitioner submitted that backdoor entry to a particular of clerk cannot have sanction of law. He contends that it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. A person employed in violation of these provisions is not entitled to any relief including salary. He submits that for a valid and legal appointment, mandatory compliance with the said constitutional requirement is to be fulfilled. He further submits that equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit. He has relied on the decision of the Supreme Court in the case of State of Orissa & anr v. Mamta Mohanty reported in (2011) 3 SCC 436.

6. Further, according to learned counsel for petitioner, the principle of “equal pay for equal work” is not applicable in this case due to inherent difficulties in comparing and evaluating the work done by different persons in different organizations or even in the same organization. He submits that it is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming