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Per contra, Shri R. Venkataramani, learned senior counsel, appearing for the respondents, apart from reiterating the contentions in the applications, submitted that Section 10(2) of the B.I.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 conditions mentioned in Section 10(4) of the B.I.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 10(2) of the B.I.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 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 Gujarat. It was further contended that the appointment on a judicial post can 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 ;

Arguing further, learned senior counsel for the respondents, submitted that the appointment of a 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 assuming 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 that even if somebody is already a Member of the Judiciary, he can be 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 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 be excluded from consideration. Concluding his arguments, he submitted that the High Court's conclusion that Section 10(2) of the B.I.R. Act does not provide for nomination or direct recruitment and someone has to be appointed from amongst the Members of the Industrial Court only is correct and that there is no other provision in the entire B.I.R. Act to provide for the mode of appointment of the President of the Industrial Court. In that view, it is quite reasonable to read Section 10(2) of the B.I.R. Act as providing that President can be appointed only from amongst the Members.

This Court, in the case of State of Maharashtra vs. Labour Law Practitioners' Association & Ors., (1998) 2 SCC 688, held that the Labour Court Judges and the Judges of the Industrial Court belong to Judicial service and recruitment is to be made in accordance with Article 234 of the Constitution of India. 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 Shri N.A. Acharya was in accordance with the Draft Rules. This apart, the eligibility criteria for appointment on the post of the 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.