Judgment : 1. By this petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 18th October, 2007, delivered by Member, Industrial Court, Nagpur, in Complaint (ULP) No. 225/2005, dismissing their complaint. The complaint was filed for securing compassionate employment for the present petitioner no.2 who was complainant no. 2 in that complaint. On 25.6.2008, this Court has made the Rule returnable on 17.11.2008. 2. I have heard Advocate Shri B.M.Khan, for the petitioner and Advocate Shri V.G.Wankhede, for respondent. 3. Advocate Khan has pointed out that the learned Member, Industrial Court has erroneously presumed that the petitioner no.1 must have first claimed alternate employment and thereafter only the benefit of compassionate employment to his son i.e. petitioner no.2 would have become available. He has invited attention to various circulars issued from time to time, particularly the Circular dated 10th September, 1975, to point out that ground of compassionate employment to son of the employee i.e. petitioner no.1 who is required to leave the service on account of medical unfitness is an alternate solace prescribed. He states that the circular no where requires petitioner no.1 to seek alternate employment first, so as to enable his son to claim employment on compassionate ground. He also invites attention to subsequent circular dated 16.2.1994 on the point to point out that the said circular requires the respondent to provide alternate employment to unfit drivers and also permitted him to apply for grant of compassionate employment to his dependent. He also states that this circular contains clause that only one dependent from family of S.T employee would be given benefit of the scheme. However, on 22.7.1996 a subsequent circular incorporating policy decision was issued and all earlier circulars including circular dated 16.2.1994 was quashed. The drivers like petitioner no. 1 were permitted the option available under 10.9.1975's circular by reviving the circular dated 12.1.1970, as also circular dated 10.9.1975. He, therefore, urges that impugned order of learned Member of Industrial Court suffers from error apparent and in any case non application of mind. 4. In reply,. Advocate Shri V.G.Wankhede states that petitioner no. 1 was found unfit because of visual acquity problem and as per policy decision, it was necessary for him to appear before Medical Board, but he never appeared before that Board. 4. In reply,. Advocate Shri V.G.Wankhede states that petitioner no. 1 was found unfit because of visual acquity problem and as per policy decision, it was necessary for him to appear before Medical Board, but he never appeared before that Board. He contends that the learned Member of Industrial Court has correctly found that the petitioner no.1 ought to have applied for grant of alternate employment and as that has not been dome, the complaint has rightly been dismissed by it. Today, Advocate Shri Wankhede invites attention to Circular No. 11/2006, dated 12.4.2006 to contend that all circulars providing for grant of compassionate employment have been cancelled and the drivers like petitioner no. 1 have been given benefit of alternative employment by protecting their pay scale because of provision of Persons with Disability (Equal Opportunity, Protection of Rights and Full Participation), Act 1996 (hereinafter referred to as 1996 Act). He states that in view of the cancellation of policy decision to grant employment on compassionate ground, the ULP complaint itself has become infructuous and it deserved to be dismissed . He also placed reliance upon the Judgment of learned Single Judge of this Court reported in 2008 (5) Mh.L.J. 616 [Madanlal Tukaram Pashine vs. Maharastra State Road Transport Corporation] to support his contention. 5. Perusal of the circular dated 10th September, 1975 shows that there were two options available to driver like petitioner no.1 who was required to retire or leave service on account of visual acquity problems. The first was to secure alternate employment and the other was to seek compassionate employment for his son. Thus, both the options are mutually exclusive and the petitioner no.1 could not have applied for grant of alternate employment to him and also for grant of compassionate employment to his son. However, on 16.2.1994 the respondent M.S.R.T.C. introduced a condition that such driver who has been found unfit in visual capacity and has been removed from service, must obtain a certificate from competent Medical Board about their unfitness and Government has to refer the employees to Medical Board for that purpose. The circular also states that such driver can apply for appointment on compassionate ground. It also provides for alternate employment. This circular dated 16.2.1994 looses its relevance because on 22.7.1996 respondents have issued another Circular No. 20 of 1996 and revived the circular dated 10.9.1975 for drivers who are found visually unfit. The circular also states that such driver can apply for appointment on compassionate ground. It also provides for alternate employment. This circular dated 16.2.1994 looses its relevance because on 22.7.1996 respondents have issued another Circular No. 20 of 1996 and revived the circular dated 10.9.1975 for drivers who are found visually unfit. This circular also expressly mentions that all circulars and administrative orders by which the dependent of employees were provided employment on compassionate ground stood quashed and the matter was to be regulated by said circular no. 20 of 1996. In effect, the option available to petitioner no.1 as per circular dated 10th September, 1975, again revived and it was open to petitioner no.1 to apply for grant of alternative employment for himself or then to apply for grant of compassionate employment for his son i.e petitioner no.2. In this circular, there is no requirement of petitioner no.1 appearing before Medical Board and it only contemplates that such drivers should be found to be unfit by competent Medical Officer namely S.T. Medical Officer Central Zone, Bombay. It is not in dispute that the petitioner was found unfit to continue as driver and was discharged from service w.e.f. 8.11.2004 as per Divisional Establishment Order NO. 5328, dated 4th February, 2005. 6. In these circumstances, the findings by learned Member of Industrial Court that petitioner no. 1 never appeared before Medical Board is without any merit and cannot be used to deny the benefit of circular dated 10.9.1975 to him. 7. It also follows that the finding by Industrial Court that the further benefit of grant of compassionate employment becomes available only if alternate job is availed cannot be sustained. The two options are alternatives given to employees by employer M.S.R.T.C. and it is for employee to choose the best option available to him as per his situation in life. Here, petitioner no.1 never sought alternate employment, but sought an employment on compassionate ground for petitioner no.2, his son. In these circumstances, it is apparent that application of mind by learned Member of Industrial Court is unsustainable and its order dated 18th October, 2007 deserves to be quashed and set aside. 8. Here, petitioner no.1 never sought alternate employment, but sought an employment on compassionate ground for petitioner no.2, his son. In these circumstances, it is apparent that application of mind by learned Member of Industrial Court is unsustainable and its order dated 18th October, 2007 deserves to be quashed and set aside. 8. The judgment in the case of Madanlal Pashine vs. M.S.R.T.C. (supra) relied upon by Advocate Wankhede considers the fact in which a post of cleaner had become available and that was offered to petitioner Madanlal, but petitioner Madanlal did not respond to that communication. It is in this background, this Court found that claim of petitioner Madanlal for being appointed on the post of peon or labour was rightly negatived by the Industrial Court. It was recorded that Madanlal did not possess requisite qualification and was not eligible to be considered for such appointment. The employee Madanlal did not accept the post of Cleaner on the ground that his salary as driver was more. The M.S.R.T.C. pointed out the circular dated 22nd June, 1990 and urged that Madanlal had to accept the post on fresh appointment and his salary as driver cannot be protected. 9. In the light of Circular dated 22nd June, 1990, the controversy was considered by the learned Single Judge and contention of Madanlal that Circular dated 22nd June, 1990 made no reference to Circular dated 19th August, 1975 and therefore, Circular dated 19th August, 1975 continued to operate was rejected. In fact, the petitioners have not then pointed out the circular dated 22.7.1996 which expressly revives the earlier circular dated 10th September, 1975. In these circumstances, I find that the said judgment has got no bearing on controversy before me. 10. The Circular No. 11/2006, dated 12.4.2006 produced before me by Advocate Wankhede today appears to have been issued because of certain directions issued by High Court and in terms of Resolution dated 23.12.2005. The preamble only mentions that the resolution was passed with a view to protect the salaries of such incumbent to whom alternate employment is provided because of provisions of 1996 Act in terms of direction of Hon'ble High Court. In last clause of this circular dated 12.4.2006, it is mentioned that earlier circulars on the point that provide employment on compassionate ground were cancelled. In last clause of this circular dated 12.4.2006, it is mentioned that earlier circulars on the point that provide employment on compassionate ground were cancelled. However, clause 6 mentions that circulars mentioned in reference and against the reference i.e. Circular dated 2.8.2001n and 20.6.2002 are cancelled. Therefore, it is clear that Circular No. 11/2006 does not override Circular No. 20 of 96 dated 22.7.96. 11. In any case, though resolution is dated 23.12.2005 and though there is some doubt whether clause 6 of Circular No. 11 of 2006 forms part of said resolution, still the letter implementing said resolution has been issued by Vice Chairman and Managing Director of respondent on 12.4.2006. It is, therefore, apparent that the resolution has been brought into force on 12.4.2006. ULP complaint filed by the petitioners in present matter is dated 20th July, 2005 i.e. prior to even the date of resolution. The complaint has been filed because the petitioner no. 2 was not given compassionate appointment by implementing the service conditions prescribed for petitioner no.1. Thus unfair labour practice has occurred prior to 20th July, 2005 and therefore, that resolution dated 23.12.2005 or Circular No. 11 of 2006 issued in pursuance thereof cannot have retrospective effect to cure an unfair labour practice which has taken place prior to 20th July, 2005. 12. I, therefore, find that Circular No. 11 of 2006 produced by Advocate Shri Wankhede is not relevant while deciding the present writ petition. In view of this discussion, the impugned order dated 18th October, 2007 delivered by Member, Industrial Court in Complaint (ULP) No. 225/2005 is hereby quashed and set aside. The complaint is partly allowed by declaring that by not providing compassionate employment to the petitioner no. 2, the respondents have indulged in unfair labour practice falling under Item 9 Schedule IV and by not considering the case of petitioner no. 2 for granting compassionate employment, the respondents have indulged in unfair labour practice falling under Item 9 of Schedule IV of M.R.T.U. & P.U.L.P. Act, 1971. The respondent is directed to consider the case of petitioner no.2 for grant of such employment in terms of its policy decision dated 10.9.1975 and if petitioner no.2 is found eligible for grant of such employment, to provide him such employment in accordance with law. The respondent is directed to consider the case of petitioner no.2 for grant of such employment in terms of its policy decision dated 10.9.1975 and if petitioner no.2 is found eligible for grant of such employment, to provide him such employment in accordance with law. The necessary exercise in this respect be completed as early as possible and in any case by 25th February, 2009. 13. The writ petition is thus allowed in above terms. However, in the facts and circumstances of the case, there shall be nor order as to costs.