IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 12665 of 2000 And SPECIAL CIVIL APPLICATIONS Nos 79,80 and 93 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA and Hon'ble MR.JUSTICE Y.B.BHATT and Hon'ble MR.JUSTICE K.R.VYAS ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- GUJARAT MAZDOOR PANCHAYAT Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: Mr.H.M.Mehta, senior counsel, with MRS VASAVDATTA BHATT for Petitioner in Special Civil Application No.12665/2000. Mr.A.K.Clerk for petitioners in Special Civil Application No.79/2001. Mr.K.M.Patel for petitioner in Special Civil Application No.80/2001. Mr. Shalin N. Mehta for petitioner in Special Civil Application No.93/2001. Mr.S.N.Shelat, learned Advocate General, with Mr. Paresh Upadhyay for Respondent No.2 in all the Petitions. Mr.A.D.Oza, learned G.P. for Respondent No.1 in all the Petitions. Mr.A.M.Raval has appeared on behalf of Respondent No.3 - N.A.Acharya in all the Petitions. Mr.Asim Pandya has entered appearance on behalf of G.P.S.C. in Special Civil Application No.79/2001 -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA and MR.JUSTICE Y.B.BHATT and MR.JUSTICE K.R.VYAS Date of decision:04/05/2001 CAV COMMON JUDGEMENT (Per : MR.JUSTICE M.R.CALLA) 1. Through these four Special Civil Applications different petitioners have challenged the appointment of the respondent Shri N.A. Acharya, Joint District Judge, Vadodara as the President of the Industrial Court, Gujarat made vide Notification dated 7.12.2000 issued by the order of Governor by the Labour and Employment Department of the Government of Gujarat under signatures of one Shri Mohan Chavda, Deputy Secretary to the Government in the Labour and Employment Department. Whereas all these four matters involve common question of law based on almost same set of facts, we propose to decide all these four Special Civil Applications by this common judgment and order as under:- 2. Special Civil Application No.12665/2000 was the first petition dated 9.12.2000 filed on 11.12.2000 by Gujarat Kishan Mazdoor Panchayat, a Registered Trade Union, before this Court with the prayer that the respondents be directed not to make any appointment on the post of President of the Industrial Court save and except by appointing any Member of the Industrial Court as President and to direct the respondent No.3 Shri Acharya to state the basis of his right to be appointed as President of the Industrial Court and to set aside and quash the appointment order dated 7.12.2000 purporting to appoint him as the President of the Industrial Court. The matter came up before a single Bench of this court on 13.12.2000 and it appears that the petition was sought to be amended and such amendment was granted on 13.12.2000. On the said date i.e. 13.12.2000, the notice was issued by the single Bench to the respondents Nos.1 and 2 and the same was made returnable on 19.12.2000. On 21.12.2000 the time was sought on behalf of respondent No.2. i.e. High Court of Judicature for Gujarat for filing an affidavit in reply and the matter was made to stand over to 8.1.2001. The order sheet dated 22.12.2000 shows that the matter was taken up on that date i.e. 22.12.2000 on a mention being made by the learned counsel for the petitioner that the concerned Judge had come to Ahmedabad to take the charge as President of the Industrial Court. The main matter was, therefore, posted for admission on 26.12.2000 and the statement of Mr. Paresh Upadhyay, who appeared for respondent No.2. i.e. the High Court was recorded that even if the concerned Judge had taken over the charge,since the matter is kept on 26.12.2000, he will see to it that at least till that date the concerned Judge does not function as President of the Industrial Court since the matter is sub-judice and is kept on 26.12.2000 for admission. Thereupon the matter came up for admission on 26.12.2000 and on that date i.e. 26.12.2000 the matter was made to stand over to 2.1.2001 and the single Bench passed an order that in the meantime the concerned Judge Mr. N.A. Acharya may remain on leave and he may not function as President of the Industrial Court. 3. Against the above order dated 26.12.2000 passed by the learned single Judge (Coram: P.B.Majmudar,J), a Letters Patent Appeal No.918/2000 was preferred by the High Court before the Division Bench. On 27.12.2000 when this Letters Patent Appeal came up before the Division Bench (Coram: Ms.R.M.Doshit and A.L.Dave,JJ), the Division Bench was informed that the concerned Judge Mr. Acharya was on probation and cannot avail leave and further that the Industrial Court was observing vacation from 26.12.2000 till 2.1.2001 and, therefore, advocate for both the sides agreed that they would proceed further with the hearing of the matter on 2.1.2001 i.e. the date on which the matter was made to stand over and in this view of the matter, the Division Bench opined that the ends of justice shall be met if the direction issued against the learned Judge to remain on leave is set aside. The Letters Patent Appeal was accordingly allowed and the direction issued to the concerned Judge Mr. Acharya to remain on leave and not to function as President of the Industrial Court was set aside. On 2.1.2001 when the matter came up before the learned single Judge, an amendment was sought seeking a writ of quo-warranto also in this case and the Court opined that looking to the question involved and further that it was a petition in the nature of public interest litigation, the matter may be placed before the Division Bench on 8.1.2001 for admission, with the clarification that the question of interim relief may be decided on the aforesaid date i.e. 8.1.2001. 4. In the meanwhile Special Civil Application No.79/2001 dated 6.1.2001 was filed on 8.1.2001 by the Gujarat Industrial Court Judges Association and 12 others, who were working as Members, Industrial Court, Gujarat. This petition was circulated on 8.1.2001 itself but the same was made to stand over to 10.1.2001 and again to 15.1.2001. Yet another Special Civil Application No.80/2001 dated 6.1.2001 had been filed on 6.1.2001 by the Labour Laws Practitioners Association and this petition was also made to stand over to 10.1.2001 on 8.1.2001 and again to 15.1.2001. One more Special Civil Application No.93/2001 dated 8.1.2001 was filed on 8.1.2001 by the Surat Textile Labour Union and on 11.1.2001 it was also made to stand over to 15.1.2001. 5. All these four Special Civil Applications, as aforesaid, were taken up by the Division Bench on 16.1.2001 and on this date i.e. 16.1.2001 the Division Bench passed the order as under:- "COMMON ORAL ORDER (Per : MR.JUSTICE B.C.PATEL) #. Learned advocates and counsel appearing for the parties in the matter at the initial stage submitted to this Bench that they have no objection if these matters are heard by this Bench, particularly as one of us (B.C.Patel, J.) was a member of the Standing Committee which has taken the decision in these matters. As counsel appearing in the matters as well as the advocates requested the Court that the decision taken by the High Court in its administrative side should not come in way of hearing, the Court decided to proceed further with the matters. On behalf of the State as well as the Advocate General appearing for the High Court similarly stated before the Court. #. These matters raise various questions i.e. whether the petitions filed by the associations or by the advocates or by the persons who were actually in services and were not selected are maintainable or not. The question with regard to eligibility was also raised. With regard to consultation of the Public Service commission and that the order should be made by the Hon'ble the Governor was also raised before us. It was also submitted that the rules are merely draft rules which have not been finalised and no reliance should be placed on the draft rules. On the other side, a decision was pointed out indicating that reliance may be placed on the draft rules. It was submitted that if the person is competent, he should be permitted to discharge the duties and with a view to see that the decisions are rendered in the interest of public at large, the person should not be restrained from discharging his duties, more particularly when he is selected by a competent body. We are not elaborating the arguments made before us since we are of the view that the matters require consideration by a Larger Bench of this Court. Division Bench of this Court in the case of Prantiya Kamdar Sena & anr. v. State of Gujarat & anr, reported in 1998 (2) GLH 970 in para 11 has taken the view that in relation to service matters, the persons aggrieved must come forward. Others in the presence of such petitioners must not take up their cause and seek remedies. Mr. Mehta has taken us through the case of S.P. Gupta and others v. President of India & ors. reported in AIR 1982 SC 149 and subsequent decision of the Apex Court in the case of Sub-Committee on Judicial Accountability v. Union of India & ors., reported in (1991) 4 SCC 699 and submitted that the decision rendered by the Division Bench should not come in the way. In our view, it would be most appropriate to place these matters before the Larger Bench to consider the said decision. #. We are of the view that the matters are required to be considered by the Larger Bench in view of the points and issues involved in these matters. Draft amendment is granted in Spl.C.A. No. 79/2001. #. The Registry is directed to place all these matters before the Hon'ble the Chief Justice. The present situation i.e. status quo shall continue till the matters are placed before the Larger Bench. It will be for the Larger Bench thereafter to pass appropriate orders as it may deem just and proper. [B.C. PATEL, J.] [R.R.TRIPATHI, J.]" 6. Thereafter, on the basis of the order dated 24.1.2001 passed by the Hon'ble Chief Justice, the matters came up before this Bench on 16.2.2001 and again on 17.2.2001. The order passed on 17.2.2001 in these cases would show that at the threshold of the commencement of the arguments it was made known to the learned counsel appearing in these cases that one of us (Hon'ble Y.B.Bhatt,J) was on the Standing Committee. All the learned counsel submitted that they have no objection if the matter is heard by this Bench including Hon'ble Y.B.Bhatt,J. On 17.2.2001 the rule was issued for the date of 16.3.2001 and the order of status quo, as had been passed by the Division Bench on 16.1.2001, was vacated and the matters were posted for final hearing on 16.3.2001. Since the exchange of pleadings was not complete on 16.3.2001, the matters were posted for 20.3.2001 on which date the arguments were heard and the judgment was kept CAV. 7. In Special Civil Application No.12665/2000 in the form of pleadings we have before us the petition dated 9.12.2000, the affidavit in reply dated 26.12.2000 filed on behalf of respondent No.2 under the signatures of one Shri V.R.Jadav working as Law Officer in the High Court of Gujarat, petitioner's affidavit dated 1.1.2001 in rejoinder to the reply affidavit filed on behalf of the High Court. In Special Civil Application No.79/2001 in the form of pleadings we have before us the petition and the affidavit-in-reply dated 10.1.2001 on behalf of respondent No.2 under the signatures of Shri V.R.Jadav working as Law Officer in the High Court of Gujarat. In Special Civil Application No.80/2001 in the form of pleadings we have before us the petition and in Special Civil Application No.93/2001 also we have before us the petition in the form of pleadings. 8. Briefly stated the petitioners have come with the case that at present one Shri Y.P.Bhatt, senior most Member of the Industrial Court is in charge President, Industrial Court and there were 13 other Members of the Industrial Court presently working as such. Further there are 39 Judges of the Labour Court who are working as such and out of the Labour Court Judges, two senior most Judges were eligible for appointment as Member, Industrial Court. Respondent - Shri N.A.Acharya had been appointed as Joint District Judge in November 1999 and was on probation at the time of selection as President, Industrial Court and he is quite junior in the seniority list of the cadre of District Judges. That certain petitioners as per para 14 of Special Civil Application No.79/2001 had put in more than 15 years service as Member, Industrial Court and prior thereto as Judge, Labour Court. The post of President, Industrial Court is the only promotional avenue and by appointing respondent Shri Acharaya, their promotional avenue has been snatched away, while respondent - Shri Acharya was just appointed as Joint District Judge and is far junior to the Members of the Industrial Court, who are higher in seniority list in their own cadre. The appointment of respondent - Shri Acharya vide Notification dated 7.12.2000 has been challenged in these four petitions on more than one grounds as under:- (i) The Industrial Court is a Court under Sec.3(16) of the Bombay Industrial Relations Act (hereinafter referred to as 'the Act') and it is a court of Industrial Arbitration constituted under Sec.10 of the Act. Under Sec.10(2) the Industrial Court shall consist of three or more members, one of whom shall be its President and under sub-section (4) of Sec.10 every member of the Industrial Court has to be a person, who is or has been a Judge of a High Court or is eligible for being appointed as a Judge of such Court or has presided over a Labour Court for not less than ten years. Whereas respondent - Shri Acharya is not a member of the Industrial Court, there was no question of his appointment as President of the Industrial Court because the President has to be out of the Members only. In want of his appointment as a Member of the Industrial Court, there is no question of his appointment as the President of the Industrial Court. (ii) By Notification dated 12.2.1965 No.G.SH.122.ICE.1160/4863-T published in Gujarat Government Gazette Part IV-A dated 25.2.1965 the Government of Gujarat had framed Recruitment Rules for the post of Member, Industrial Court, Ahmedabad under the proviso to Article 309 of the Constitution. Neither respondent - Shri Acharya was eligible to be appointed as Member of the Industrial Court nor he was ever appointed as such. (iii) That the appointment on the post of President, Industrial Court could not be made by direct recruitment and the Draft Rules, which have been relied upon by the High Court, are inconsistent to the provisions of the Act and such Draft Rules could not be acted upon and given effect to for the purpose of making selection and appointment of the President of the Industrial Court. (iv) That the appointment of respondent - Shri Acharya as President, Industrial Court was in violation of Articles 14 and 16 of the Constitution of India inasmuch as the other eligible candidates had not been considered and persons, who are already working as Members of the Industrial Court, have been excluded from consideration with reference to the Draft Rules by saying that they are not eligible to be considered for promotion because they have not completed 5 years of service as Member, Industrial Court and the other source of recruitment under Draft Rules i.e. by nomination was not available because of the provisions as contained in Sec.10 of the Act. 9. It has been pleaded on behalf of the High Court of Gujarat in its affidavit in reply dated 26.12.2000 that after the retirement of Shri D.V.Joshi as the President of the Industrial Court on 31.1.2000, the said post had remained vacant and there is no person who could be considered for promotion on the post of President of the Industrial Court, in the light of the eligibility criteria prescribed by the High Court on its administrative side. It had, therefore, become necessary to recommend the appointment of an appropriate person by nomination on the said post under Rule 2(b) as per the Draft Recruitment rules prepared by the High court. That the respondent No.3 Shri N.A.Acharya is more than 45 years of age and had practiced as an Advocate for not less than 10 years and thus he fulfilled the criteria mentioned in the Draft Rules prepared by the High Court, nay, Shri Acharya also fulfils the criteria prescribed by the Government as per the old Rules, according to which in case the post is not filled by appointment of a serving or retired Judge of High court, the appointment could be made either by nomination or by promotion from among the Members of the Industrial Court from amongst the candidates of not less than 45 years of age and from amongst those who have for at least 10 years either held judicial post in India or been an Advocate of High Court or have expert knowledge of industrial matters. It is stated in the affidavit in reply dated 10.1.2001 filed in Special Civil Application No.79/2001 by the High Court i.e. respondent No.2 that the Government of Gujarat in Labour and Employment Department had sent a communication dated 7.1.2000 to the High Court of Gujarat stating therein that due to retirement of Shri Joshi on 31.1.2000 the post of the President of the Industrial Court will fall vacant and the question of preparing the Recruitment Rules for the post of President, Industrial court is under consideration of the High Court and that till the Rules are not finalised, the Government cannot take a decision in respect of appointment on the said post. Under these circumstances, it was decided to place the matter for consideration of the Standing Committee of the High Court of Gujarat as to by which mode the post of President, Industrial Court be filled up. It was decided by the Standing committee on 8.2.2000 that the post of President, Industrial Court, Ahmedabad be filled up by nomination under clause (b) of Rule 2 of the proposed Rules as none of the present Members of the Industrial Court was eligible to be appointed to the said post by promotion having not completed 5 years service on the post of Member, Industrial Court. It is then stated that the claim of all the incumbents holding the post of Member of Industrial Court was examined in the light of the criteria prescribed by the High Court of Gujarat for appointment on the post of the President of Industrial Court and it was decided by the Standing Committee to fill up the post of President of Industrial court by nomination. In the light of the decision of the Standing Committee it was further decided to ask for the willingness of the Judicial Officers working in the cadre of City Civil Court Judges and District Judges, who are not less than 45 years of age and had put in 10 years of service in judiciary (including the period of practice at the Bar) for being considered for appointment in question and in pursuance of the decision of the Standing Committee the willingness was called for and in all nine Judicial Officers had expressed their willingness for being considered for the post in question. The details of these nine Officers, as given out in the reply dated 10.1.2001 under Para 4.3. are as under:- Sr. Name of the Judicial Designation and No. Officer. Station. --------------------------------------------------------- 1. Mr.A.R.Bhatt Judge, City Civil Court, Ahmedabad (was retiring on 30.6.2000) 2. Mr.P.B.Raval Judge, City Civil Court, Ahmedabad (was retiring on 31.5.2000) 3. Mr.B.S.Jaiswal Judge, City Civil Court, Ahmedabad (was retiring on 31.3.2000). 4. Mr.B.D.Ghasura Joint District Judge, Bharuch (was retiring on 31.7.2000). 5. Mr.G.A.Ahuja Joint District Judge (at the relevant time was on deputation as Member Secretary, G.S.L.S.A. and had applied for re-patriation to judiciary). 6. Mr.B.K.Rajpal Joint District Judge, (was on deputation as President, CDRF, Ahmedabad (Rural). 7. Mr.N.R.Pathan Joint District Judge, S.K. at Himatnagar (was retiring on 30.4.2000). 8. Mr.V.C. Mandalia 2nd Joint District Judge, Kheda at Nadiad, (is to retire on 31.10.2001) and his name was recommended for appointment as Joint Charity Commissioner. 9. Mr.N.A.Acharya Joint District Judge, Vadodara. ---------------------------------------------------- The matter was then placed for consideration of the Standing Committee of the High Court of Gujarat in its meeting held on 30.3.2000 and the Office was directed to re-submit the matter alongwith the Recruitment rules prescribing eligibility criteria for appointment to the post of President, Industrial court. The matter then came up for consideration before the Standing Committee in its meeting held on 1.5.2000 alongwith the Draft Rules but the consideration of the subject mater was deferred and in the meantime the office was directed to re-submit the matter pointing out the provisions of law, particularly mentioning the provisions regarding eligibility, experience and age of superannuation etc. prescribed for the post in question. A detailed note was then submitted for consideration of the Standing Committee and after considering all the aspects in the meeting dated 29.6.2000, the Standing Committee decided that the name of Shri N.A.Acharya, Joint District Judge, Vadodara may be recommended to the Government in the Labour and Employment Department for appointment as President, Industrial Court, Ahmedabad by nomination as provided under the Recruitment Rules for the post in question. Accordingly communication was sent to the Government on 5.7.2000 recommending the name of Shri N.A.Acharya for appointment on the post of Industrial Court, Ahmedabad. it has been stated in Para 6 of this reply that Shri Y.P.Bhatt, President (Incharge) of the Industrial Court at the relevant time had vide his letter dated 4.11.2000 expressed his unwillingness to be promoted as the President of the Industrial Court. In para 7 of the reply it has been stated that the decision to fill up the post of President, Industrial Court by way of nomination, as provided under the Rules, was arrived at after considering all aspects. 10. In Special Civil Application No.79/2001 Mr.Asim Pandya, Advocate, has entered appearing on behalf of Gujarat Public Service Commission. No return as such was filed by GPSC but Mr. Asim Pandya orally stated before us that the GPSC has not been consulted in this appointment at any stage and GPSC has nothing more to say. 11. We are, therefore, called upon to consider the legality, correctness and validity of the impugned Notification dated 7.12.2000 appointing respondent No.3 as the President of the Industrial Court at Ahmedabad in the light of the provisions of Bombay Industrial Relations Act, 1946, the Rules framed under proviso to Article 309 of the Constitution of India prescribing the Recruitment Rules for the post of Member, Industrial Court, Ahmedabad vide No.G.SH.122 ICE.1160/4863-T published in the Gujarat Government Gazette, February 25, 1965/PHALGUNA 6, 1886 dated 12.2.1965; the Draft Rules as framed by the High Court and the Recruitment Rules for the post of President, Industrial Court as contained at Item 34 in the Handbook of Guidelines on Recruitment Rules of Officers under Labour And Employment Department, Government of Gujarat, Gandhinagar, December, 1990 published for Office use only in the year 1992. It has to be agreed on all hands that the Industrial Court is a Court under Sec.3(16) of the Bombay Industrial Relations Act and is a Court of Industrial Arbitration constituted under Sec.10 of the said Act. Sec.10 of the Bombay Industrial Relations Act, 1946 is reproduced as under:- "10. (1) The State Government shall constitute a Court of Industrial Arbitration. (2) The Industrial Court shall consist of three or more members, one of whom shall be