PER A. R. LAKSHMANAN, J. : - - (1.) 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 and Employment Department of the govern - ment 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, 7912001, 80/2001 and 93/2001 filed by Gujarat Kishan Mazdoor Panchayat, Gujarat lndustrial Court Judges' Association, Labour Laws Practitioners' Association and Surat Textile Labour Union. As per the directions of the Chief Justice, the applications were placed before the Full Bench of the Gujarat High Court. The Full Bench, by its judgment dated 4 -5 -2001, 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 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 -11798/2001 on the grounds raised in the Special Leave Petitions. By order dated 14 -12 -2001, this Court granted leave and made the interim order absolute.
(2.) 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 and except by appointing any member of the Industrial Court as President and other allied reliefs. A prayer to issue a writ of quo warranto was also asked for to direct Shri N. A. Acharya respondent No. 3 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.
(3.) 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. 1. R. Act") governs the relationship between the employers and workmen 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 10 of the B. 1. R. Act thereof provide for setting up of Labour Courts and Industrial Court. Section 10 of the B. 1. R. Act, which pertains to the setting up of a court of industrial arbitration to be known as Industrial Court, is provided to consist of three or more members, one of when shall be its President. Section 10 (4) of the B. 1. 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 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 member 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 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 1abour 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 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. 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.1.R. Act, no one who is not a member of the Industrial Court can be directly appointed as president of the Industrial Court. 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, 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 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 -affidavit on behalf of the High Court of Gujarat reiterating the contentions raised in the applications. In the rejoinder -affidavit it was submitted that 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 the post of president or under the new rules which are at the draft stage only the candidate concerned should have at least 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 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 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. ;