IN THE HIGH COURT OF GUJARAT AT AHMEDABAD Special Civil Application No.116 of 1998 with Special Civil Applications Nos. 282, 1403, 6438, 6695 and 6926 of 1998 For Approval and Signature: Hon'ble CHIEF JUSTICE MR.K.G.BALAKRISHNAN and MR.JUSTICE M.H.KADRI ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements?-Yes. 2. To be referred to the Reporter or not?-Yes. 3. Whether Their Lordships wish to see the fair copy of the judgement?-Yes. 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?-Yes. 5. Whether it is to be circulated to the Civil Judge?-No. -------------------------------------------------------------- PRANTIYA KAMDAR SENA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 116 of 1998 Mr.Haroobhai Mehta, Senior Counsel, with MRS VASAVDATTA BHATT for Petitioners Mr.S.N. Shelat, Additional Advocate General, with MR SP HASURKAR, Addl. Solicitor, for Respondent No. 1 NOTICE SERVED BY DS for Respondent No. 2 2. Special Civil Application No.282 of 1998 Mr.G.A. Joshi, Petitioner-party-in-person. Mr.S.N. Shelat, Additional Advocate General, with MR D.P. Joshi, AGP, for Respondent respondent No.1. Mr.N.R. Shahani, Advocate, for respondent No.2. Dr. Mukul Sinha, Advocate, for respondent No.3. 3. Special Civil Application No 1403 of 1998 MR GIRISH PATEL for Petitioners Mr.S.N. Shelat, Additional Advocate General, with MR SP HASURKAR, Additional Solicitor, for the Respondent. 4. Special Civil Application No.6438 of 1998 Mr.Haroobhai Mehta, Senior Counsel, with Mr.Ketan A Dave, Advocate, for the Petitioner. Mr.S.N. Shelat, Additional Advocate General, with MR SP HASURKAR, Additional Solicitor, for the first Respondent. Mr.R.J. Oza, Advocate, for 2nd respondent. Dr.Mukul Sinha, Advocate, for respondent No.4. Mr. R.C. Pathak, Advocate, for respondent No.5. Mr.P.S. Chari, Advocate, for respondent No.6. Mr.V.D. Parghi, Advocate, for respondent No.7. Mr.N.S. Desai, Advocate, for respondent No.14. Respondents Nos. 3, 8, 9, 10, 11, 12, 13, 15 and 16 served. 5. Special Civil Application No. 6695 of 1998. Mr.D.S. Vasavada, Advocate, for the Petitioner. Mr.S.N. Shelat, Additional Advocate General, with Mr.S.P. Hasurkar, Additional Solicitor, for respondents 1 and 2. Mr.R.D. Dave, Advocate, for respondent No.3 Mr.K.V. Gadhia, Advocate, for respondent No.4. 6. Special Civil Application No.6926 of 1998. Mr.D.S. Vasavada, Advocate, for the Petitioner. Mr.S.N. Shelat, Additional Advocate General, with Mr.S.P. Hasurkar, Additional Solicitor, for respondents 1 and 3. Mr.R.J. Oza, Advocate, for 2nd respondent. Mr.Kamal Trivedi, Advocate, of M/s. Trivedi & Gupta, for respondents 4 to 8. -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR.K.G.BALAKRISHNAN and MR.JUSTICE M.H.KADRI Date of decision: 14/10/98 C.A.V. JUDGEMENT 1. In all these Special Civil Applications, common questions of law arise for consideration and hence, they were all heard jointly and disposed of by this judgment. The petitions relate to the selection, appointment and promotion of Labour Court Judges. 2. We take Special Civil Application No.6926 of 1998 as the lead case, wherein the following contentions have been raised :- In this Special Civil Application, the petitioner challenges the recruitment of Labour Court Judges made by the Gujarat Public Service Commission. The G.P.S.C. issued advertisement for 25 posts of Judges, Labour Court (Junior Division) and out of 25 posts 13 posts were meant for general category candidates, one post for Scheduled Caste and five posts for Scheduled Tribe and six posts for Socially and Educationally Backward Classes. Government of Gujarat had made Rules to regulate the recruitment to the post of Judge, Labour Court, called "Labour Court Judge (Junior Division) Recruitment Rules, 1982". Pursuant to the advertisement, 806 candidates applied for selection and then an elimination test was conducted and 71 candidates were chosen for oral interview. Interview was held in July, 1998 and 12 candidates were selected and one candidate was kept in the wait list. According to the petitioner, the selection process is against the procedure declared by the Honourable Supreme Court for the selection and appointment of Labour Court Judges. There was no consultation with the High Court. The elimination of 729 candidates was arbitrary, irrational and unconstitutional. Constitution of the Selection Committee was illegal. S.C., S.T. and S.E.B.C. candidates have been denied the opportunity of being considered for appointment by ingenious method of selection. The petitioner prays for issuance of a writ of certiorari or any other appropriate writ to set aside the selection of candidates for appointment of Labour Court Judges. The petitioner has also prayed for termination of service of the ad hoc Judges already working as Labour Court Judges. 3. On behalf of the respondent-State, a common affidavit has been filed denying the allegations. The main contention urged in the common affidavit is that these public interest litigations are not maintainable as they have no locus standi to file these petitions. There is no bona fides in filing these Special Civil Applications as they have been filed at the instance of candidates, who have not been selected. In Special Civil Applications Nos. 116 of 1998 and 281 of 1998, directions were given by this Court to fill up the posts of Judges of the Labour Court and Industrial Tribunal and as the State Government was under the direction to fill up the posts, the selection was conducted in accordance with the Rules made by the Governor under Article 309 of the Constitution. The selection was conducted in accordance with Section 7 of the I.D. Act. The recruitment made on the basis of the existing Rules cannot be invalidated on the short ground that it has been made in contravention of Article 234. The entire process of selection was started pursuant to the direction given by this Court. As regards the non-selection of women candidates, it is submitted that the selection has been made only for 12 posts and 13 vacancies continued to exist and all other reserved categories can be accommodated in those vacancies. 7 candidates belonging to the general category have been selected and that is the exact number which was permissible under the advertisement. Elimination test conducted by the G.P.S.C. was not illegal or arbitrary. 4. On behalf of the Gujarat Public Service Commission, an affidavit has been sworn to by the Deputy Secretary of the G.P.S.C. It is contended that the challenge advanced by the petitioner is not maintainable, as it is quite vague and general in nature. The Commission issued advertisement on 2.3.1998 and it was specifically mentioned that the Commission may hold elimination tests so as to decide who should be called for personal interview and the medium of elimination test will be Gujarati unless otherwise decided by the Commission. The Commission is competent to hold elimination test in the event of receiving large number of applications. 806 applications were received for filling up the 25 vacancies. Elimination test was conducted and 732 applicants attended such test. Suitability of the candidate for recruitment by selection was assessed by interview conducted by the Selection Committee. The elimination test had no connection whatsoever with the suitability of the candidate. The introduction of the elimination test was only to restrict the zone of consideration from amongst the eligible candidates. The Selection Committee was duly constituted in accordance with the procedural rule. The Commission has acted impartially and persons were selected by assessing the suitability of the candidate. 5. We heard Mr.Haroobhai Mehta and Mr.Girish Patel, learned counsel appearing for the petitioners, and also Mr.S.N. Shelat, learned Additional Advocate General, for respondent-State, Dr. Mukul Sinha, and Mr.Kamal Trivedi, learned counsel for the other respondents, and Mr.R.J. Oza, learned counsel for the G.P.S.C. 6. In the State of Gujarat, there are about 41 posts of the Judge, Labour Court, and so also, there is a sanctioned strength of 17 as Members of the Industrial Court. For some reason or other, entire posts were not filled up, and, as and when vacancies arose, regular recruitment was not made to fill up the vacancies. There was a general complaint that these posts were not filled up and the large number of cases pending before these Labour Courts were not decided within a reasonable time. 7. Special Civil Application No.116 of 1998, though filed against the transfer of one Labour Court Judge from Surat to Junagadh, counsel for the petitioner prayed that Court shall direct the respondent-State to fill up the post of Labour Court Judge. When Special Civil Applications Nos.116 of 1998 and 282 of 1998 came up for consideration, a Division Bench of this Court passed an order on 11.2.1998, directing the State Government to fill up the post of Presiding Officer of the Labour Court and Members of the Industrial Tribunal in accordance with the provisions contained in Sections 7 and 7A of the I.D. Act within a period of two months. Pursuant to this direction, the State Government addressed the Gujarat Public Service Commission to take steps for selection of the candidate for appointment to the post of Judge, Labour Court. Judges of the Labour Court and Members of the Industrial Tribunal are under the administrative control of the Department of the Labour and Employment. The Officers working as Judges of the Labour Court and Members of the Industrial Tribunal are not being treated as part of the Judicial Service. They are not under the administrative control of the High Court of Gujarat. On 11.2.1998, in the decision in State of Maharashtra v. Labour Law Practitioners' Association, reported in 1998(2) GLR 1079 (S.C.) (Civil Appeal No.1505 of 1987), the Honourable Supreme Court held that the Labour Courts are discharging judicial functions and Judges of the Labour Courts and Industrial Tribunals belong to `Judicial Service' of the State. This inevitably led to the situation that so far as the appointments of persons to the Judicial Service are concerned, in view of Article 234 of the Constitution, the same shall be made by the Governor of the State in accordance with the Rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Without paying attention to the decision rendered by the Supreme Court, the selection process initiated by the Public Service Commission continued and 12 candidates were selected for appointment as Judges of the Labour Court. The main challenge in these Special Civil Applications is that the selection of these 12 candidates was not done in accordance with the mandate of Article 234 of the Constitution and hence, these persons are not entitled to be appointed as Judges of the Labour Court. The selected candidates appeared through counsel and contended that their selection as Judges of the Labour Court was perfectly in accordance with law and the same is not liable to be set aside. 8. It was contended by the counsel, who appeared for the selected candidates that even if there was no specific consultation with the High Court as provided under Article 234 of the Constitution, there was substantial compliance with this provision as the Rules framed under Article 309 of the Constitution were sent to the High Court on 19.2.1998 while seeking the names of some of the Judicial Officers for being appointed as Judges of the Labour Court. 9. Some of the petitioners in these Special Civil Applications contended that the whole procedure for selection of the Labour Court Judges was vitiated by mala fides and procedural irregularity and, according to them, the written test was conducted to eliminate the candidates and the marks secured in this written test was not taken into consideration while preparing the final list, or, in other words, the contention of these petitioners is that the marks secured in the interview alone should not have been the criterion for selection. 10. At first, we shall deal with the question whether there is any substance in the allegation regarding the procedural irregularity alleged against the Gujarat Public Service Commission in conducting the selection. As many as 806 candidates submitted applications for selection for the post of Judge, Labour Court. 25 candidates were required to be selected and the Commission thought it fit to conduct a preliminary test for the purpose of eliminating some candidates. It was published by the Commission that the selection would be exclusively based on the interview. The petitioners have not challenged the Rules of Recruitment and they have also no case that the selection solely based on interview was illegal or irrational. The main grievance of the petitioners is regarding the conduct of the elimination test by the Gujarat Public Service Commission. In the advertisement itself, notice was given to the public that, if necessary, the Commission will hold elimination test so as to decide as to who should be called for personal interview and the medium of elimination test will be Gujarati unless otherwise decided by the Commission. Therefore the petitioners are not entitled to challenge the elimination test as such conducted by the Gujarat Public Service Commission. It has been held by various decisions that when large number of applications are received, it is well within the powers of the selection body to conduct elimination test. In Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar and another, (1994) 6 SCC 293, the Honourable Supreme Court approved conduct of elimination test. It was held that where the selection is to be made purely on the basis of interview, if the applications for such posts are enormous in number with reference to the number of posts available to be filled up, then the Commission or the Selection Board has no option but to short list such applicants on some rational and reasonable basis. Where selection has to be made only on the basis of interview, then such interviews / viva voce tests must be carried out in a thorough and scientific manner in order to arrive at fair and satisfactory evaluation of the personality of the candidate. The sole purpose of holding the interview is to search and select the best among the applicants. It would be impossible to carry out satisfactory viva voce test if large number of candidates are interviewed each day till all the applicants, who have been found to be eligible on the basis of the criteria and qualifications prescribed are interviewed. If large number of applicants are called for interview in respect of few posts, the interview is then bound to be casual and superficial because of the time constraint. Here, the short-listing of candidates was done on the basis of the written test. The petitioners have no grievance against the manner in which the written test was conducted. There is also no allegation that the elimination test was done due to any extraneous consideration. Therefore, we do not find any illegality on the part of the Commission in conducting the elimination test. 11. Another contention urged by the petitioners' counsel against the selection is that 25 vacancies were notified for selection and in spite of the fact that there were several Scheduled Caste, Scheduled Tribe and women candidates being available for interview, the Commission did not select them for certain ulterior purpose and, therefore, the whole selection process is illegal. Counsel for the Commission submitted that the selection was made solely on merit and the Members of the Interview Committee consisted of the Chairman of the Public Service Commission and other Members, including an Expert and Chairman of the Industrial Tribunal. Even though 71 candidates were interviewed, 12 candidates were found suitable for the post. The petitioners could not make out a case that meritorious candidates were denied selection. In fact, in a petition filed in the form of Public Interest Litigation, it will not be justifiable for this Court to go into such details. If any person is aggrieved, it is for him to challenge the selection and in matters relating to service, the Supreme Court deprecated the practice of public interest litigation. When the aggrieved persons are not coming forward to challenge the selection, it would not be proper for others to take up their cause and seek remedies. Therefore, we hold that the selection made by the Commission, as such, is not vitiated by any procedural illegality. 12. The main contention urged in this petition is that the selection and appointment of Judges of Labour Court is not being made in accordance with the constitutional provision, in the sense that there is violation of the mandate contained in Article 234 of the Constitution. As stated earlier, the Judges of the Labour Court and Members of the Industrial Court were not considered as part of the Judicial Service. Ever since the formation of the Gujarat State, Members of this Service have been under the administrative control of the Department of Labour and Employment of the State of Gujarat. In an earlier decision rendered by the Supreme Court on 24.4.1990, The Alahar Cooperative Credit Service Society v. Sham Lal, 1995(2) GLH 550, it was held that the Labour Court is not a court subordinate to the High Court and application for initiating contempt of court proceedings was rejected by the Supreme Court. However, in that decision, the matter was not dealt with in detail and the question as to whether the Labour Courts would come within the purview of the subordinate courts under ... question came up for consideration before the Supreme Court in State of Maharashtra v. Labour Law Practitioners' Association & Ors., 1998(2) GLR 1079, and the matter was considered in detail and it was held that the Labour Court performs judicial functions and they form part of the Judicial Service. It was held that the Judges of the Labour Court, Industrial Tribunals and Industrial Courts belong to Judicial Service of the State and their appointment, posting and promotion shall be in accordance with Articles 234 and 235 of the Constitution and it was held in paragraph 20 of the judgment as under :- "... The Constitutional scheme under Chapter V of Part VI dealing with the High Courts and Chapter VI of Part VI dealing with the subordinate Courts shows a clear anxiety on the part of the framers of the Constitution to preserve and promote independence of the Judiciary from the executive. Thus, Art. 233 which deals with appointment of District Judges requires that such appointments shall be made by the Governor of the State in consultation with the High Court. Art. 233(2) has been interpreted as prescribing that "a person in the service of the Union or the State" can refer only to a person in the Judicial service of the Union or the State. Art. 234 which deals with recruitment of persons other than District Judges to the Judicial service requires that their appointments can be made only in accordance with the Rules framed by the Governor of the State after consultation with the State Public Service Commission and with the High Court. Art. 235 provides that the control over District Courts and Courts subordinate thereto shall be vested in the High Court; ...." Even after the above decision, the administrative control over the Judges of the Labour Court and the Industrial Tribunal continued to vest with the Labour and Employment Department of the State. When series of vacancies of the Judges of the Labour Court arose, steps were taken to appoint the Judges of the Labour Court and selection was conducted by the Public Service Commission. However, the procedure contemplated under Article 234 of the Constitution was not followed. As per Article 234 of the Constitution, the appointments of persons other than District Judges to the Judicial Service of a State shall be made by the Governor in accordance with the Rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. The scope and ambit of Article 234 has been explained in various decisions. It is now a well-settled position that appointments to the Judicial Service can only be made in accordance with the Rules made by the Governor in consultation with the Public Service Commission and the High Court. 13. In the instant case, for appointments of Labour Court Judges, Recruitment Rules have been framed in 1982. These Rules have been framed by the State in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The Rules, viz., "Labour Court Judges (Junior Division) Recruitment Rules, 1982", came into force with effect from 3rd May, 1982. As regards the appointment of the Member, Industrial Court, the State Government framed Rules on 12th February, 1965. It may also be noted that the power has been conferred on the State under Section 7 of the Industrial Disputes Act, 1947 to constitute Labour Courts for the adjudication of Industrial Disputes. Section 7A of the I.D. Act, 1947 confers power on the appropriate Government to constitute Tribunals for the adjudication of the industrial disputes. Sections 9 and 10 of the Bombay Industrial Relations Act, 1946 respectively gives powers to the State Government to constitute Labour Courts and Court of Industrial Arbitration. Section 9 of the Bombay Industrial Relations Act prescribes qualification for appointment as the Presiding Officer, Labour Court, and it is specified that he should have practised as an Advocate or Pleader for not less than three years or has regularly appeared as a Member of a Trade Union for not less than seven years in proceedings before the Labour Court, Industrial Court or Tribunal. The Labour Court Judges (Junior Division) Recruitment Rules, 1982 and the Recruitment Rule for appointment to the post of Member, Industrial Court are framed in accordance with the provisions contained in the Industrial Disputes Act and the Bombay Industrial Relations Act, 1946. These Rules have not been framed after consultation with the High Court of Gujarat. The State also has no case that these Rules have been framed in accordance with Article 234 of the Constitution. The counsel, who appeared for the selected candidates, made an attempt to contend for the position that these Rules were submitted to the High Court for approval and this contention is based on a letter written by the Deputy Secretary to the Labour and Employment Department, to the Registrar of the High Court, which is produced as Annexure 2(A) in Special Civil Application No.116 of 1998. A reading of this letter would show that the State Government wanted to fill up the post of Judges of Labour Court (Junior Division), and the post of President, Industrial Court, Ahmedabad, on deputation basis and they sought names of the officers working in the Judicial Service, who are prepared to work as Labour Court Judges (Junior Division), Class I or President of the Industrial Court, Ahmedabad either by transfer or by deputation and in that regard, the copy of the Recruitment Rules was sent along with the letter and this, according to the counsel for the selected candidates, is sufficient consultation and so long as no mode is prescribed for consultation, according to him, there was substantial compliance with Article 234. 14. We are not inclined to accept the above contention. `Consultation' contemplated under Article 234 must be effective consultation. Though no specific mode as such is prescribed for the manner in which the consultation is to be made, by various judicial pronouncements, the word `consultation' has acquired a definite and concrete meaning in the legal parlance. In Union of India v. Sankalchand Himatlal Sheth and another (1977) 4 SCC 193, `consult' implies a conference of two or more persons or an impact or two or more minds. In CCCCCCCCCCCCCC CCCCCCCCCCCCCCC it was held that what is essential under Article 234 is that both the High Court and the Commission should be informed by the Governor that he proposes to make Rules and those Rules, which he proposes to make should be made available to them. So, after a study and scrutiny of those Rules, the High Court and the Commission might be in a position to offer advice. In another decision in M.I. Nadaf v. The State of Mysore and another, AIR 1967 Mysore 77, it was held in paragraph 9 as under :- "... Article 309