Point of Law: Creation of posts does not lie within the domain of judicial function which pertains to the executive and no such permanency can be granted by the Court where no posts exists.

JUDGMENT :

1. Heard. Rule in both the Writ Petitions. It is made returnable forthwith. The learned advocate Mr. T.K. Prabhakaran instructed by Mr. A.S. Kulkarni for the respondent in both these Writ Petitions waives service. At the joint request of the parties, the petitions are heard finally at the stage of

admission.

2. Since common questions of facts and law arise in both the Writ Petitions wherein challenge is to the self same common judgment and order passed by the Industrial Court, the matters are being disposed of by this common judgment.

3. The petitioner is the Electricity Board constituted under the Electricity Act and is a State within the meaning of Article 12 of the Constitution of India. It is challenging a common judgment and order whereby the Industrial Court has allowed the complaints filed by the respondents under Section 28 (1) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter the ULP Act) and issued following directions:

“ORDER

Complaint ULP Nos.69/2003 and 71/2003 are hereby allowed.

It is hereby declared that the respondent has engaged in unfair labour practice covered under Item No.6 of schedule IV of the MRTU & PULP Act by not conferring permanency benefits to the complainants in both the complaints. The respondent is hereby directed to cease and desist from commission of such unfair labour practice. The respondent is directed to confer permanency benefits along with consequential monetary benefits to each of the complainant w.e.f. 04-06-1996 and to pay arrears after fixation of their pay in the pay scale prescribed within six months from the date of the order. The respondent is directed to pay to each of the complainant Rs.1,00,000/- by way of compensation and Rs.10,000/- towards costs of the proceeding and to bear its own costs.”

4. The bone of contention of the learned Senior advocate Mr. Dixit for the petitioner is to the effect that the petitioners were engaged purely on contractual basis to work as Telephone Operators and no employer employee relationship ever existed between the petitioner and them. He would submit that no post of Telephone Operator was ever in existence and available in the petitioner establishment. The employees of the petitioner are governed by special service regulations. The respondents were never appointed pursuant to such regulation. There was no post, no public advertisement. Though couple of posts were created for its establishment at Parli-Vaijnath in the year 1996, where the respondents have been working, those were abolished in the year 2007. No regular recruitment process was ever undertaken to fill the two posts. Since there is no question of any post being available, there cannot be any question of petitioner resorting to any unfair labour practice.

5. He would further submit that the direction under challenge is clearly in violation of the decision of the Supreme Court in the case of Secretary, State of Karnataka and Ors. Vs. Umadevi and Ors.; AIR 2006 SC 1806 and the decision of the Division Bench of this Court in the matter of State of Maharashtra and Anr. Vs. Pandurang Sitaram Jadhav ; 2008 (5) ALL M.R. 497 and the subsequent judgment of the Supreme Court in the matter of Maharashtra State Road Transport Corporation and Anr. Vs. Casteribe Rajya Parivahan Karmchari Sanghatna ; (2009) 8 SCC 556. He would submit that the learned Judge of the Industrial Court has clearly misdirected himself by the observations in the case of M.S.R.T.C. (supra) and particularly paragraph No.26 wherein it merely observed that the decision in the case of Umadevi (supra) does not denude the Industrial and Labour Courts of their powers to grant permanency to the workers who have been victims of unfair labour practice. It clearly overlooked the fact that there was no clear sanctioned post and vacancy so that the respondents could get regularized.

6. Per contra, the learned advocate for the respondents vehemently submits that the respon