# _.J HIGH COURT OF GUJARAT AND ANR v. GUJARAT KISHAN MAZDOOR PANCHAYAT AND ORS

- **Citation:** [2003] 2 S.C.R. 799
- **Court:** Supreme Court of India
- **Decided:** 2003
- **Bench:** V.N. Khare, S.B. Sinha, Dr. Ar. Lakshmanan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-high-court-of-gujarat-and-anr-v-gujarat-kishan-mazdoor-panchayat-and-ors-18999
- **Pages:** 33

## Headnote

A
B
Bombay °Industrial Relations Act, 1946-Section 10(2) and (4)-
Appointment-Post of President of Court of Industrial Arbitration-Eligibility
criteria for the appointment determined by High Court and the same C
incorporated in Draft Recruitment Rules-Recommendation by administrative
side of High Court for appointment by nomination from judicial serviceAppointment done by State Government challenged-High Court held the
appointment illegal as in view of Section I 0(2) being a member of the Court
was condition precedent for being appointed to the post of President-On D
appeal, held: Appointment is valid and the same is not in breach of Section
I 0(2) of the Act and Articles 14 and 16 of the Constitution-Appointee is
eligible for the post-Section I 0(2) deals with composition of Industrial Court
and not on mode of appointment-Constitution of India, 1950-Articles 14
and 16-Handbook of Guidelines on Recruitment Rules of Officers under
Labour and Employment Department, Government of Gujarat-Item 34.
E
Preparation of recruitment rules for the post of President of the
Court of Industrial Arbitration was under consideration by High Court
and as the post of President of Industrial Court was to fall vacant since
the retirement of its previous President, State Government sent a
representation to the High Court for consideration as to by which m·ode, F
the post of the President was to be filled up. The matter was placed
before Standing Committee of High Court which decided that the post
was to be filled by nomination under Rule 2(b) of the proposed rules, as
none of the then existing members of the Industrial Court were eligible
to be appointed to the post by promotion. Nine Judicial Officers expressed G
their willingness for being considered for the post. The Standing
Committee after considering the recruitment rules particularly the
provisions regarding eligibility, experience and age of superannuation
etc. for the post recommended the name of one of the judicial officers to
the State Government for appointment by nomination for the post. H
799
800
SUPREME COURT REPORTS
(2003] 2 S.C.R.
A Representation against the recommendation was also heard. Senior most
-~
member of the Industrial court also expressed his unwillingness to be
appointed as President. State Government appointed the appointee to the
post by a notification. Writ petitions were filed challenging the
appointment. It was alleged that the appointment was illegal because in
B view of scheme of Section 10(2) of Bombay Industrial Act, 1949 only a
member of Industrial Court could be appointed as its President; and that
even if it is assumed that appointment on the post could be made by
nomination, as per the old recruitment rules and new draft rules, the
appointee in the present case did not possess adequate qualification.
Appellant-High Court countered the allegation contending that High Court
C had recommended the name of the appointee under Rule 2(b) of Draft
Recruitment Rules and the appointee also fulfilled the criteria prescribed
--...
as per old rules. Full Bench of the High Court held that being a member
of the Industrial Court is a prerequisite and condition precedent for
being the President of the Court; that the only relevant provision for
D recruitment to the post of President is Section IO of the Act, hence there
was no lawful justification for keeping the members of the Industrial
Court out of consideration on the basis of the proposed Draft Rules.
In appeal to this Court appellants contended that Section 10(4) of
the Act provides for eligibility criteria and the same is fulfilled by the
E appointee; and that High Court proceeded on an erroneous footing that
the Act did not contemplate the appointment by direct recruitment and
only members of the Industrial Court formed the zone of consideration
for appointment to the post of President.
Respondent contended that the plain and natural meaning of Section
F 10(2) of the Act is capable of only one construction i.e. only

## Text

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_.J
HIGH COURT OF GUJARAT AND ANR.
v.
GUJARAT KISHAN MAZDOOR PANCHAYAT AND ORS.
MARCH l 0, 2003
[V.N. KHARE, CJ., S.B. SINHA AND
DR. AR. LAKSHMANAN, JJ.]
A
B
Bombay °Industrial Relations Act, 1946-Section 10(2) and (4)-
Appointment-Post of President of Court of Industrial Arbitration-Eligibility
criteria for the appointment determined by High Court and the same C
incorporated in Draft Recruitment Rules-Recommendation by administrative
side of High Court for appointment by nomination from judicial serviceAppointment done by State Government challenged-High Court held the
appointment illegal as in view of Section I 0(2) being a member of the Court
was condition precedent for being appointed to the post of President-On D
appeal, held: Appointment is valid and the same is not in breach of Section
I 0(2) of the Act and Articles 14 and 16 of the Constitution-Appointee is
eligible for the post-Section I 0(2) deals with composition of Industrial Court
and not on mode of appointment-Constitution of India, 1950-Articles 14
and 16-Handbook of Guidelines on Recruitment Rules of Officers under
Labour and Employment Department, Government of Gujarat-Item 34.
E
Preparation of recruitment rules for the post of President of the
Court of Industrial Arbitration was under consideration by High Court
and as the post of President of Industrial Court was to fall vacant since
the retirement of its previous President, State Government sent a
representation to the High Court for consideration as to by which m·ode, F
the post of the President was to be filled up. The matter was placed
before Standing Committee of High Court which decided that the post
was to be filled by nomination under Rule 2(b) of the proposed rules, as
none of the then existing members of the Industrial Court were eligible
to be appointed to the post by promotion. Nine Judicial Officers expressed G
their willingness for being considered for the post. The Standing
Committee after considering the recruitment rules particularly the
provisions regarding eligibility, experience and age of superannuation
etc. for the post recommended the name of one of the judicial officers to
the State Government for appointment by nomination for the post. H
799
800
SUPREME COURT REPORTS
(2003] 2 S.C.R.
A Representation against the recommendation was also heard. Senior most
-~
member of the Industrial court also expressed his unwillingness to be
appointed as President. State Government appointed the appointee to the
post by a notification. Writ petitions were filed challenging the
appointment. It was alleged that the appointment was illegal because in
B view of scheme of Section 10(2) of Bombay Industrial Act, 1949 only a
member of Industrial Court could be appointed as its President; and that
even if it is assumed that appointment on the post could be made by
nomination, as per the old recruitment rules and new draft rules, the
appointee in the present case did not possess adequate qualification.
Appellant-High Court countered the allegation contending that High Court
C had recommended the name of the appointee under Rule 2(b) of Draft
Recruitment Rules and the appointee also fulfilled the criteria prescribed
--...
as per old rules. Full Bench of the High Court held that being a member
of the Industrial Court is a prerequisite and condition precedent for
being the President of the Court; that the only relevant provision for
D recruitment to the post of President is Section IO of the Act, hence there
was no lawful justification for keeping the members of the Industrial
Court out of consideration on the basis of the proposed Draft Rules.
In appeal to this Court appellants contended that Section 10(4) of
the Act provides for eligibility criteria and the same is fulfilled by the
E appointee; and that High Court proceeded on an erroneous footing that
the Act did not contemplate the appointment by direct recruitment and
only members of the Industrial Court formed the zone of consideration
for appointment to the post of President.
Respondent contended that the plain and natural meaning of Section
F 10(2) of the Act is capable of only one construction i.e. only members of
the Industrial Court could become its President; th.at the appointee does
not fulfil any of the three eligibility conditions mentioned in Section I 0( 4)
of the Act; that even assuming that the appointment to the post of
President could be made through nomination or direct recruitment, all
G the members of the Industrial Court were qualified for being appointed
by nomination in accordance with the draft Rules, and hence the .
appointment of the appointee straight away by nomination without taking
them into consideration is violative of Articles 14 and 16 of the
Constitution;
H
Allowing the appeals, the Court
>-..
HIGH COURT OF GUJARAT'· GUJARATKISHAN MAZDOOR PANCHAYAT
80 I
HELD: Per Lakshmanan, J. (for himself and CJ!)
A
1. There is neither illegality nor arbitrariness is taking the decision
of recommending the name of the appointee for appointment on the post
of President, Industrial Court. The decision to fill up the post of President
of the Industrial Court by way of nomination as provided under the
Rules, was arrived at, after considering all aspects, not only that the B
process of selecting the person to be recommended to the Government
was also taken transparently and before taking the decision, the matter
was considered from time and again by the Standing Committee of the
High Court and after due consideration and deliberations the decision
was taken to recommend the name of the appointee. 1819-A-C]
2. It is seen from the records that at the request of the Government,
the eligibility criteria for appointment on the post of President, Industrial
Court has been determined by the High Court and the same has been
incorporated in the Draft Recruitment Rules. The appointee is eligible
c
for the post of the President, Industrial Court, as he has completed ten D
years service in judiciary including the period of practice at the Bar.
(819-Df
3. In the case of appointment of President of the Industrial Court
by nomination, it is not necessary that he must be appointed as Member
at the first instance. Section 10(2) of the Bombay Industrial Regulations E
Act, 1949 deals with the composition of Industrial Court, which does not
lay down the mode of appointment. The words of Section 10(2) of the Act
are not that the President shall be appointed from one of the current
members of the Industrial Court. High Court has erroneously read these
words in Section 10(2) of the Act. A reading of the provisions of Section
10 of the Act clearly spells out that, apart from the mode of selecting the F
President by promotion amongst the Members, the President can also
directly be appointed from the sitting or retired High Court Judges or
from the Judges of City Civil Court, Ahmedabad and District Judges,
who fulfill the eligibility requirement for appointment as Member of the
Industrial Court. High Court failed to appreciate that once a person is G
appointed as the President of the Industrial Court, he automatically
becomes a Member. Section 10(2) of the Act only envisages that the
President is the senior Member of t!te.industrial Court is inherent in his
appointment as Member of the Industrial Court. The proposed
Recruitment Rules were framed by the High Court at the request of the
Government and pending approval of the Government. The appointment H
802
SUPREME COURT REPORTS
[2003] 2 S.C.R.
A of the appointee as President of the Industrial Court is not in breach of
Section 10(2) of the Act and also not violative of Articles 14 and 16 of the
Constitution of India. By recommending the appointment in question,
High Court had not only acted within its rights but the same had been
done in due discharge of the constitutional duty. 1820-B-FI
B
4. The existing Recruitment Rules did not comply with the provision
of Article 234 of the Constitution of India. The State Government,
therefore, referred to the High Court for consultation and approval of
the Rules. The administrative side of the High Court framed the Draft
Rules and the appointment offered to the appointee was in accordance
C with the Draft Rules. This apart, the eligibility criteria for appointment
on the post of President of the Industrial Court has been determined by
the High Court and the same has been incorporated in the Draft
Recruitment Rules at the request of the Government. 1821-E-Fl
State of Maharashtra v. Labour law Practitioners' Association and
D Ors., 1199812 sec 688, referred to.
Per Sinha, J (Supplementing)
I.I. Section 10(2) of Bombay Industrial Relations Act, 1949 did not
impose any restriction on the power of the State to appoint a Member or
E a President. The said provision merely speaks of the composition of the
Court of Industrial Arbitration. The expression 'shall consist of three or
more Members' is important. By necessary implication a President of the
Court of Industrial Arbitration would also have to be a Member and
preci~ely that was the reason why no separate qualification for the
F appointment of a President has been laid down in the Act. Sub-section ( 4)
of Section IO of the Act lays down the eligibility criteria of a Member
only. It is, therefore, significant that for the purpose of appointment of a
Member as also the President of the Court of Industrial Arbitration the
eligibility criteria remain the same. The legitimate expectation of a
Member to be promoted to the Post of the Chairman thus, have no
G relevance as nobody has a vested right to be promoted. 1822-F-H; 823-AI
1.2. It may be true that reference has been made by the High Court
while making the recommendations to the draft rules known as Draft
Recruitment Rules but it appears from the records that the said draft
rules, purported to have been framed by the High Court for replacing
H the Recruitment Rules for the Post of President as contained at Item 34
}.. ..
HIGH COURT OF GUJARAT,, GUJARAT KISHAN MAZDOOR PANCHAYAT
803
in the Handbook of Guidelines on Recruitment Rules of Officers under A
Labour and Employment Department, Government of Gujarat,
Gandhinagar, of December, 1990, were published in the year 1992. It is
now trite that draft rules which are made to lie in a nascent state for a
long time cannot be the basis for making appointment or recommendation.
Rules even in their draft stage can be acted upon provided there is a B
clear intention on the part of the Government to enforce those rules in
the near future. (823-B-DI
Vimal Kumari v. State of Haryana and Ors., (199814SCCt14, referred to.
1.3. Section 10(4) o·f the Act states that a Member of the Industrial
Court shall be a person who is or has been a Judge of High Court or is C
eligible for being appointed a Judge of such Court. Article 217 of the
Constitution of India inter a/ia lays down the qualification to be possessed
by a citizen for his appointment as a High Court Judge. It has not been
and could not be disputed that the appointee has the requisite qualification.
The other and further qualifications for appointment of a member have D
been laid down in the provisos appended thereto. The qualifications
specified in the said provis'ls are meant for those who do not satisfy the
requirement of main provision. First and Second provisos appended to
sub-section (4) of Section l 0 are exceptions to the main provision. Once it
is held that sitting judicial officers can be appointed either as Member or
President of the Court of Industrial Arbitration, indisputably the High E
Court is required to be consulted therefor. It is for the High Court and
High Court alone to nominate a person of its choice. Such a practice is
followed by all the High Courts of the country and although the ultimate
authority is the State, the recommendations made by the High Court is
normally accepted. [823-E-Gl
F
1.4. A statute must be interpreted having regard to the purport and
object which it seeks to achieve. The object of the Act is to constitute
Industrial Arbitration Court for the purpose of adjudication of the
disputes between the management and the workmen. Such courts which
are normally manned by the judicial officers cannot be kept vacant for a G
long time. Whenever they are meant to be filled up by the sitting judicial
officers, consultation with the High Court is imperative. [823-H; 824-AJ
Public Services Tribunal Bar Association v. State of UP. and Anr.,
(2003) AIR SCW 653, referred to.
H
804
SUPREME COURT REPORTS
[2003] 2 S.C.R.
A
1.5. Even if it be assumed that the provisions of Sub-section (2) and
sub-section (4) of Section IO of the Act render two different meanings, it
is trite, that in such an event the rule of purposive construction should be
taken recourse to. [824-Bf
Jt. Registrar of Cdoperative Societies, Kera/a v. TA. Kuttappan and
B Ors. [2000[ 6 SCC 127; Associated Timber Industries and Ors. v. Central
Bank of India and Anr., [2000[ 7 SCC 93; United Bank of India, Calcutta v.
Abhijit Tea Co. Pvt. Ltd and Ors., [2000] 7 SCC 357; K. Duraisamy and
Anr. v. State of TN. and Ors., [2001 J 2 SC\ 538; Reserve Bank of India v.
Peerless Co., [1987( I SCC 424; Hameedia Hardware Stores v. B. Mohan
C Lal Sowcar, [1988( 2 SCC 513; Punjab Land Development and Reclamation
Corporation Ltd, Chandigarh v. Presiding Officer, Labour Court, Chandigarh
and Ors., [1990( 3 SCC 682; S. Gopa/ Reddy v. State of Andhra Pradesh,
[ 1996( 4 sec 596, referred to.
DPP v. Schildkamp (1971) AC I; Jones v. Wrotham Park Settled Estates,
D (1980) AC 74, referred to.
The Interpretation and Application of Statutes by Reed Dickersen;
Principles of Statutory Interpretation of Justice G.P. Singh, 5th Edition, 1992,
referred to.
E
1.6. The Court while interpreting the provision of a statute, although,
is not entitled to re-write the statute itself, is not debarred from "ironing
out the creases". The court should always make an attempt to uphold the
rules and interpret the same in such a manner which would make it
workable. [825-Ef
F
1.7. An attempt should be made to give effect to each and every
word employed in a statute and such interpretation which would render
a particular provision redundant or otiose should be avoided. [825-E, Ff
1.8. The purport and object of the Statute is to see that a Tribunal
becomes functional and as such the endeavours of the Court would be to
G see that to achieve the same, an interpretation of Section I 0 of the Act be
made in such a manner so that appointment of a President would be
possible even at the initial constitution thereof. Such a construction is
permissible by taking recourse to the doctrine of strained construction.
[826-D, EJ
H
Statutory Interpretation by Francis Bennion, referred to.
HIGH COURT OF GUJARAT•·. GUJARAT Kl SHAN MAZDOOR PANCHA VAT
805
1.9. If the interpretation of Section I 0 of the Act as propounded by A
the High Court is accepted, no President can be appointed directly by tile
State at the time of constitution of the Court. Such a situation, therefore,
would lead to absurdity if it is held that the candidate must first be
appointed as a Member and the Post of President can be filled up inter
alia by way of promotion or otherwise. When literal interpretation of a B
provision leads to absurdity or manifest injustice, it is trite, the same
must be avoided. 1830-F, G)
I.I 0. If the legislature intended to lay down different qualifications
or eligibility criteria for the President and the Members, it would have
expressly stated so. In absence of an express provision providing either C
for different qualification or eligibility criteria or the selection process,
the same procedure for appointment must be followed. 1830-H; 831-A)
I.I I. Both under the existing rules as also the Draft Rules, the mode
and manner of appointment have been laid down. Even in absence of the
Draft Rules in terms of Rule 34 of the Recruitment Rules for the President D
of Industrial Court appointment can be made by nomination. Thus,
appointment to the Post of President could be m.ade by way of nomination
also subject to the nominees holding requisite qualifications laid down
therefor. 1831-B, CJ
2.1. Non-mentioning or wrong mentioning of a provision of law E
would not invalidate an order if a source therefor can be found out either
under general law or a statute law. (831-CI
2.2. When there are two sources of power, even if one is not
applicable, the other will not become invalid if the power of the statutory F
authority can be traced to another source. 1831-DI
3.1. With a view to find out as to whether a case has been made out
for issuance of quo warranto, the only question which was required to be
considered was as to whether the appointee fulfilled the qualifications
laid down under Section I 0(4) of the Act or not. The Full Bench of the G
High Court has mainly proceeded on the basis that the Industrial Court
was required to have three or more members, one of whom shall be
President as specified in sub-section (2) of Section I 0 and, thus, a person
before he is appointed as the President must necessarily be appointed as
a Member. 1822-D-F)
H
806
SUPREME COURT REPORTS
[2003] 2 S.C.R.
A
3.2. High Court in exercise of its writ jurisdiction in a matter of
this nature is required to determine at the outset as to whether a case has
been made out for issuance of a writ of certiorari or a writ of quo warranto.
The jurisdiction of the High Court to issue a writ of quo warranto is a
limited one. While issuing such a writ, the Court merely makes a public
B declaration but will not consider the respective impact of the candidates
or other factors which may be relevant for issuance of writ of certiorari.
A _writ of quo warranto can only be issued when the appointment is
contrary to statutory rules. [822-A-C]
R.K. Jain v. Union of India and Ors., [1993) 4 SCC 119 and Mor
C Modern Cooperative Transport Society ltd. v. Financial Commissioner and
Secretary to Government of Haryana and Anr., [2002) 6 SCC 269, referred
to.
D
E
F
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 85748577 of 200 I.
From the Judgment and Order dated 4 . .'i.200 I of the Gujarat High
Court in S.C. Appln. Nos. 12665/2000, 79, 80 and 93 of 2001.
Mahendra Anand, S.K. Dholakia and M.S. Hemantika Wahi for the
Appellants.
R. Venkataramani, Vimal Chandra S. Dave, Ms. Neelam Kalsi, P.K.
Manohar, Vijay Kumar for Vishwajit Singh and Sanjay Kapur for the
Respondents.
The Judgments of the Court was delivered by
AR. LAKSHMANAN, J. By these four appeals, we are called upon to
consider the legality, correctness and validity of the impugned Notification
dated 7.12.2000 appointing Shri N.A. Acharya as the President of the Industrial
Court at Ahmedabad. A Notification dated 7.12.2000, in this regard, was
issued by the order of Governor by the Labour ar.d Employment Department
G of the Government of Gujarat in the Gujarat Government Gazette whereby
Shri N. A. Acharya had been appointed as the President of the Industrial
Court which was under challenge before the High Court of Gujarat in Special
Civil Application Nos. 12665/2000, 79/200 I, 80/200 I and 93/200 I filed by
Gujarat Kishan Mazdoor Panchayat, Gujarat Industrial Court Judges'
H Association, Labour Laws Practitioners' Association and Surat Textile Labour
-
HIGH COURT OF GUJARAT" GUJARAT Kl SHAN MAZDOOR PANCHAYAT [AR. LAKSHMANAN, J.] 807
Union. As per the directions of the Chief Justice, the applications were placed A
before the Full Bench of the Gujarat High Court. The Full Bench, by its
judgment dated 4.5.200 I, allowed the applications and quashed the said
Notification dated 7.12.2000. The Full Bench further directed the respondents
to proceed to make the appointment afresh on the post of the President of the
Industrial Court, Gujarat in the light of what has been held in the said order B
and in accordance with law. Aggrieved by the order passed by the Full Bench
of the High Court, the High Court of Gujarat through its Registrar preferred
Special Leave Petition (C) Nos. 11795-11798/200 I on the grounds raised in
the special leave petitions. By order dated 14.12.200 I, this Court granted
leave and made the interim order absolute.
All these appeals involve common question of law based on same set
of facts, therefore, we propose to decide these appeals by a common judgment.
A Special Civil Application was filed by the Gujarat Kishan Mazdoor
Panchayat, a Registered Trade Union to direct the respondents therein not to
make any appointments on the post of President of the Industrial Court save
c
and except by appointing any Member of the Industrial Court as President D
and other allied reliefs. A prayer to issue a writ of quo warranto was also
asked for to direct Shri N .A. Acharya - respondent No3 in the application
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 Shri N .A. Acharya as President of the Industrial Court. E
The brief facts leading to the filing of the applications are briefly stated
as under:
The Bombay Industrial Relations Act, 1946 (hereinafter referred to as
"the B.l.R. Act") governs the relationship between the employers and workmen F
in several industries operating in Gujarat and more particularly, the Industry
of Textile, the Industry of Power in the late Bombay State area of Gujarat,
the Surat Industry, the Banking Industry run by Banking Companies having
no branches outside the State of Gujarat. Sections 9 and IO of the B.l.R. Act
thereof provide for setting up of Labour Courts and Industrial Court. Section
IO of the B.l.R. Act, which pertains to the setting up of a Court of Industrial G
Arbitration to be known as Industrial Cou11, is provided to consist of three
or more Members, one of whom shall be its President. Section 10(4) of the
B.l.R. Act provides that every Member of the Industrial Court shall be a
person who is or has been a Judge of High Court or is eligible for being
appointed a Judge of such Court provided, inter alia, that a person who has H
808
SUPREME COURT REPORTS
(2003] 2 S.C.R.
A been a Judge not lower in rank than that of Assistant Judge, for not less than
three years; or a person who has been the Presiding Officer of a Labour
Court for not less than five years shall also be eligible for appointment as a
Memb~r of the Industrial Court. According to the respondents, there are
twelve Members of the Industrial Court functioning in .Gujarat State and so
far as the Labour Courts are concerned, there are 38 Judges functioning in
B Gujarat, four of them are Judges who have completed more than ten years'
service as Labour Judges and several more Labour Judges are those who
have completed more than five years' service as Labour Judges and are,
therefore, eligible for being appointed as Members of the Industrial Court.
When the post of President of the Industrial Court was vacant since the
C retirement of Shri D.V. Joshi, Shri Y.P. Bhatt, the senior-most Member of
the Industrial Court expressed his unwillingness to be appointed as President
of the Industrial Court, the post was, therefore, required to be filled up by
a regular appointment. According to. the respondents, a person for being
appointed as President should be a Member of the Industrial Court and no
one except a Member can be appointed as a President of the Industrial Court.
D It was, therefore, submitted before the High Court that anyone from the
Members of the Industrial Court can be considered to be eligible for being
appointed as President. It was further submitted that in view of the scheme
of Section 10(2) of the B.l.R. Act, no one who is not a Member of the
Industrial Court can be directly appointed as President of the Industrial Court.
E It was further argued before the High court that for Members of the Industrial
Court, there is no other avenue of promotion except one by way of appointment
as President of the Industrial Court and now, if the post of President is to be
filled up by bringing someone from Judicial Service, it will cause a great
frustration among Members of the Industrial Court as their hopes of promotion
at an appropriate time will be dashed to the ground. Opposing the applications,
F it was submitted by the respondents, appellants herein, that no illegality was
committed by recommending the name of Shri N.A. Acharya for appointment
as the President of the Industrial Court and that under Rules 2 and 3 of the
Draft Recruitment Rules, it has become necessary for the High Court, on its
administrative side, to recommend the appointment of an appropriate person
G by nomination on the said post under Rule 2(b) and that Shri N.A. Acharya,
whose name was recommended, is fulfilling the criteria prescribed by the
Government as per the old Rules as well. It was submitted that considering
the totality of the facts, the High Court of Gujarat had not only acted within
its rights but the same had been done in due discharge of the Constitutional
duty. The petitioners, respondents herein, filed their rejoinder to the reply
H affidavit on behalf of the High Court of Gujarat reiterating the contentions
HIGH COURT OF GUJARAT'· GUJARAT KISHAN MAZDOOR PANCHA YAT [AR. LAKSHMANAN, l.] 809
raised in the applications. In the rejoinder affidavit, it was submitted that A
neither the appointment order nor the reply affidavit filed on behalf of the
High Court shows that the appointment was made by the Governor of the
State and that there is nothing to show that the Full Court was consulted by
the appointing authority before making the appointment. It was further stated
that assuming that the appointment by nomination can be made on the post
of a President of the Industrial Court either under the old Rules pertaining to B
the post of President or under the new Rules which are at the draft stage only,
the candidate concerned should have atleast for ten years either held a judicial
post in India or should have been an advocate for High Court or should have
expert knowledge of Industrial matters. According to the petitioners,
respondents herein, the appointee, under the impugned appointment, had not C
hold a judicial post for ten years and in fact he was holding the post of Joint
District Judge only and he had not even completed three years on the post
of Additional District Judge to which post he was directly recruited. It was,
therefore, submitted that the appointment had been made without coming to
the conclusion that the appointee was fulfilling the criteria for appointment
as required by the Rules. An affidavit in reply was filed before the High D
Court by the Law Officer of the High Court of Gujarat giving all details as
to how the matter was considered by the Standing Committee of the High
Court and as to how the decision was taken to appoint Shri N.A. Acharya as
the President of the Industrial Court.
The Full Bench of the High Court, by its judgment, held that a reading E
of Section 10 of the B.l.R. Act would show that it provides for the constitution
of the Industrial Court with three or more Members, one of whom as its
President and it also provides the eligibility for appointment as Member of
the Industrial Court. While the eligibility has been prescribed under Section
10(3) and (4) of the B.l.R. Act for being a Member of the Industrial Court, F
for the purpose of President of the Industrial Court all that has been said in
sub-section (2) of Section I 0 of the B.l.R. Act is that one of the Members
.shall be its President. Therefore, being a Member of the Industrial Court is
a pre-requisite and condition precedent for being the President of the Industrial
Court and no person can be appointed as the President of the Industrial Court
unless he is a Member of the Industrial Court. The Full Bench further held G
that the absence of any Rules with regard to the appointment on the post of
President of the Industrial Court except the existing Draft Rules framed by
the High Court and the Rules as had been framed under proviso to Article
309 of the Constitution vide Gujarat Government Gazette dated 25.2.1965
being only for recruitment for the post of Member, Industrial Court and the H
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[2003] 2 S.C.R.
A Rules for appointment of President, Industrial Court as contained in the Hand
Book ( 1992) that too not in consultation with the High Court, the only relevant
provision which can be traced is Section I 0 of the B.l.R. Act and according
to Section 10(2) of the B.l.R. Act, one of the Members of the Industrial Court
has to be the President. The Full Bench further held that there was no lawful
justification for excluding the candidates, who were holding the post of
B Member, Industrial Court and whereas they have been kept out of consideration
on the basis of the proposed Draft Rules, the consideration for making the
appointment to the post in question stands vitiated. Elaborating further, the
Full Bench held :
c
D
E
F
" ..... .In the first instance, there is no question of appointment by
nomination on the basis of the proposed Draft Rules by holding that
existing Members were not eligible because they have not completed
five years as Member. In a given case when the only mode of
appointment is promotion and it is found that no one is eligible for
appointment by promotion, it may be open to make appointment by
direct recruitment, which would mean inviting application from all
eligible ca'1didates and then making the selection. No such procedure
has been followed and the consideration was kept confined to the
Members of the Judicial Services, who had conveyed their willingness
for appointment as President of the Industrial Court. We find that the
procedure, which has been adopted and which has led to the impugned
appointment, is not in conformity either with the general right of
equality under Article 14 of the Constitution of India and with the
right of equality in matters relating to employment as contemplated
by Article 16 of the Constitution of India and, therefore, this
appointment cannot be sustained in the eye of law.
It is also not in dispute that the respondent No.3 had never been
appointed as Member of the Industrial Court and in terms of Section
G
I 0(2) of the Bombay Industrial Relations Act, without being a Member
of the Industrial Court, there is no question of his appointment as the
President of the Industrial Court either by promotion or by direct
recruitment. Being a Member of the Industrial Court is a sine qua
non for consideration for the post of President of the Industrial Court
H
and no person who is not a Member of Industrial Court could be
HIGHCOURTOF GUJARAT,. GUJARATKISHANMAZDOOR PANCHAYAT [AR. LAKSHMANAN, J] 811
considered for appointment as such without committing violence to A
the recruitment of Section 10(2) ..
........... In the instant case, we find that the mode of direct B
recruitment is not contemplated and even if any direct recruitment is
held for the post of President of Industrial Court when no Member is
eligible, such direct recruitment is required to be held after affording
equal opportunity to all those, who are eligible. The proposed Draft
Rules 2(a) seeks to render the Members of the Industrial Court to be C
ineligible by putting the condition of the completion of 5 years service
on the post of Member. When the Act has not put any such fetter and
the Act contemplates that one of the Members of the Industrial Court
shall be the President and it is not stated that he must complete
certain years of service as Member, through executive instructions
such a requirement could not be pressed so as to defeat the right of D
consideration of the Members of the Industrial Court for consideration
of the post of the President. Under Section I 0(2) every Member of
the Industrial Court is eligible to be considered for the post of President
notwithstanding the number of years of service put in by him as a
Member.
In our considered opinion, Section 10 of the Bombay Industrial
Relations Act, 1946 is the only relevant provision to be taken note of
for the purpose of appointment of the President and the only mode
of appointment is by way of promotion from amongst the Members
E
of the Industrial Court and in this regard, if any Rules are to be F
framed in exercise of the powers under Chapter VI of Part VI of the
Constitution of India, the same cannot be inconsistent with the
requirements of the Bombay Industrial Relations Act, 1946 ........ "
The High Court, for the reasons stated above, quashed the Notification
which is impugned in the applications and further directed the respondents G
therein to proceed to make the appointment afresh on the post of the President
of the Industrial Court, Gujarat in the light of what has been held in the said
order and in accordance with law.
Aggrieved by the impugned judgment, the above four appeals, by way
of special leave petitions, were preferred by the High Court of Gujarat. We H
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[2003] 2 S.C.R.
A heard Shri Mahendra Anand, learned senior counsel, for the appellants and
Shri R. Venkataramani, learned senior counsel, for the contesting respondents.
Learned senior counsel appearing for the appellants submitted that the
provisions of Section 10 of the B.l.R. Act clearly spells out that apart from
the mode of selecting the President, by promotion from amongst the Members,
B the President can also directly be appointed from the sitting or retired High
Court Judges. He further submitted that the High Court failed to appreciate
that Section 10(2) of the B.I.R. Act does not envisage the mode of appointment
and that the High Court failed to appreciate that the words of Section 10(2)
of the B.l.R. Act are not that the President shall be appointed from one of the
C current Members of the Industrial Court and, therefore, the High Court has
erroneously read these words in Section 10(2) of the B.l.R. Act. He further
submitted that the High Court failed to appreciate that Section 10(4) of the
B.l.R. Act provides for eligibility criteria and Shri N.A. Acharya fulfills the
eligibility criteria. He further submitted that the High Court proceeded on an
erroneous footing that the B.l.R. Act does not contemplate the appointment
D by direct recruitment and only the Members of the Industrial Court from the
zone of consideration for appointment to the post of President, Industrial
Court.
Per contra, Shri R. Venkataramani, learned senior counsel, appearing
for the respondents, apart from reiterating the contentions in the applications,
E submitted that Section 10(2) of the B.l.R. Act clearly indicates that only
Member of Industrial Court is eligible for becoming the President of the
Industrial Court and that becoming Member of the Industrial Court is sine
qua non for being considered for the post of President of the Industrial Court.
According to him, Shri N.A. Acharya does not fulfil any of the three eligibility
F conditions mentioned in Section 10(4) of the B.l.R. Act and that mandatory
consultation with the Gujarat Public Service Commission was not followed.
He further urged that the plain and natural meaning of Section I 0(2) of the
B.l.R. Act is capable of only one construction and that is only Members of
the Industrial Court could become its President. He further submitted that
unless one is or has been the Judge of the High Court, the post of the
G President of the Industrial Court could be filled up only and only by way of
promotion, because there exist only one post for the whole State of Gujarat.
He further contended that the impugned appointment was void and stillborn
since the same was not made by His Excellency, the .Governor of Gujarat, but
the same was purported to have been made in the name of the Governor of
H Gujarat. It was further contended that the appointment on a judicial post can
,.;:
--.
.~-
"'--
~
'
...
HIGH COURT OF GUJARAT,. GUJARAT Kl SHAN MAZDOOR PANCHA VAT [AR LAKSHMANAN, J] 8 J 3
be made only by His Excellency, the Governor, under Article 234 of the
Constitution of India and the State Government cannot issue Notification
appointing Judicial Officer under the business rules by and in the name of
His Excellency, the Governor of the State. He further submitted that even
assuming the appointment to the post of President can be made through
nomination or direct recruitment, all the Members of the Industrial Court
were qualified for being appointed as President of the Industrial Court by
nomination in accordance with the Draft Rules that were relied upon by the
Government supporting the appointment of Shri N.A. Acharya and that the
Members of the Industrial Court were eligible for appointment by nomination
according to the Draft Rules also and that Rule 2(ii) of the Draft Rules
provides, inter alia, that appointment to the post of President shall be made
either (a) by promotion from amongst the Members of the Industrial Court
on the basis of seniority-cum-merit subject to the provision that for being
considered as eligible for such promotion, the Member concerned should
have completed five years' service as a Member of the Industrial Court; (b)
by nomination. Draft Rule 3, inter alia, provides that to be eligible for
appointment by nc,mination, a candidate must have atleast ten years either
held a judicial post in India or been an Advocate of High Court or have
expert knowledge of industrial matters. It was further contended that the
appointment ofShri N.A. Acharya straightaway by nomination without taking
into consideration the cases of nomination of existing Members of the
Industrial Court who had completed ten years' functioning as a Judicial Officer
has been rightly held by the High Court as violative of Articles I 4 and I 6
of the Conslitution of India and that, therefore, no public appointment can be
made in disregard of consideration of the cases of those who were qualified
for the post.
Arguing further, learned senior counsel for the respondents, submitted
that the appointment ofa Junior Judicial Officer as President of the Industrial
Court without considering the cases of existing Members of the Industrial
Court who are senior on the basis of longer experience on equivalent post
will also not be conducive to the judicial service which, according to him,
will result in a Junior Judicial Officer presiding over Industrial Court who
have Members far senior to the President and that Junior Judicial Officer will
thus exercise administrative powers of control over undisputedly Senior
Judicial Officers. It was further submitted that assumir.g that a District Judge
can be directly appointed to the post of President, Industrial Court carrying
a higher pay scale than that of the District Judges in Gujarat, and assuming
A
B
c
D
E
F
G
that even if somebody is already a Member of the Judiciary, he can be H
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[2003] 2 S.C.R.
A nominated or directly appointed and that he did not pass through the channel
of promotion or selection meant for those who are already in service in view
of Article 234 of the Constitution, even in that case, there was no justification
for the High Court on the administrative side to pick up Shri N.A. Acharya
who was 9th in the list of seniority at the relevant time. He submitted that the
B appointment of Shri N .A. Acharya was also vitiated on account of the fact
that if nomination or direct recruitment was a permissible course in the matter
of appointment of the President of the Industrial Court, then a large number
of Labour Court Judges, Advocates apart from the Members of the Industrial
Court who had completed ten years of practice or seven years of judicial
work were also qualified for that appointment and, therefore, they could not
C be excluded from consideration. Concluding his arguments, he submitted that
the High Court's conclusion that Section 10(2) of the B.l.R.