N N MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short facts of the case appear to be that the petitioners who are holding qualification of SSC, and employees of respondent No.3 Gujarat Labour Welfare Board (hereinafter referred to as "the Board"). It is the case of the petitioners that as per the policy of the Board, though the normal qualification for the post of Assistant Welfare Commissioner is of LL.B., Labour and Social Welfare Course Diploma or Decree and five years' experience of social work, but for the purpose of employees of Board itself who are serving, such qualification can be relaxed. It is also the case of the petitioners that earlier in the past, for such posts qualifications were relaxed and such action was challenged before the Industrial Tribunal and the Industrial Tribunal had also upheld such decision. It appears that on 24/27-1-1997 the circular was issued by the respondent Board for inviting applications for the post of Assistant Welfare Commissioner from amongst its own staff members. The post advertised were for four in number, out of which two were in General category, one was for Scheduled Caste and one was for SEBC. The case of the petitioner is that pursuant to the said circular, the petitioners had applied for the post. It is the further case of the petitioners that the Selection Committee had undertaken the process of selection and petitioner No.1 was appointed on the post under Scheduled caste category and petitioner No.2 was appointed on the post under General category, and other candidate was also appointed. Further, it appears that after the decision of the Selection Committee, the matter was placed before the respondent Board itself and by Resolution dated 20-2-1998 the appointment of three persons namely; S.J.Dave, petitioner No.2 herein, N.N.Makwana, petitioner No.1 herein, and one Hemaben K. Vaishnav was approved by the Board. It further appears that the decision of the Board for appointing the said three persons came to be challenged in SCA No.405/1998 at the instance of the Union, respondent No.4 herein and this Court (Coram: S.K.Keshote J.), as per the decision dated 28-1-1998, dismissed the petition, more particularly since the Union had approached the Additional Chief Secretary in this regard. It appears that the matter was thereafter further carried in the LPA being LPA No.543/1998 and in the said LPA, the Division Bench of this Court (Coram: K.G.Balakrishnan, C.J. - as then was & J.M.Panchal, J.), as per the decision dated 13-8-1998 directed the Additional Chief Secretary to give notice to the Appellant as well as the petitioners of SCA and it was further directed to afford the reasonable opportunity to be heard and to pass reasoned order in the matter. It further appears that thereafter the matter was heard before the Additional Chief Secretary. However, as per the petitioners, the order is passed by Mr.Bagora, Deputy Secretary, whereas as per the State Government, it is the Additional Chief Secretary who has passed the order and Mr.Bagora, Dy. Secretary had only prepared the draft which is corrected and ultimately the order is passed by the Additional Chief Secretary. The said order came to be passed on 13-11-1998 and it is the said order which is challenged by the petitioners in this petition.

(2.) Mr.Tanna, learned Counsel appearing for the petitioners, contended inter alia that the Division Bench of this Court having directed the Additional Chief Secretary to give hearing and to pass the order, the said order could not have been passed by the Dy. Secretary, Mr.Bagora and, therefore, he submitted that the order is non-est and in any event it is in breach and contravention to the directions given by this Court in the aforesaid LPA. The perusal of the impugned order, more particularly at para 2, shows that there is recital in the order itself that the hearing was made before the Secretary and the petitioners, Ms.Vaishnav, the representative of the Union, Welfare Commissioner, Mr.Daraiya and Mr.Bagora, Dy. Secretary had remained present. Since such a grievance was raised, I have verified the original record which, inter alia, shows that the hearing was before the Secretary, however, the draft of the order came to be prepared by Mr.Bagora on 7-11-1998. The Secretary has made appropriate corrections and has added certain aspects and has finalized the order on 11-11-1998 and, therefore, merely because the Additional Chief Secretary has asked the Deputy Secretary, Mr.Bagora to prepare a draft which is not as it is approved, but is, by correction, addition and alteration, finalized, it cannot be said that the decision is taken by the Dy. Secretary and not by the Additional Chief Secretary. The original file it does reflect that the Secretary has finalized the order and at appropriate place corrections and additions are also made and, therefore, ultimately it is the Additional Chief Secretary who has passed the order and merely because the order is communicated by the Dy. Secretary, Mr.Bagora, it does not lose the character of passing the order by the Additional Chief Secretary and, therefore, the said contention of Mr.Tanna cannot be accepted and hence rejected. Consequently, as observed earlier, the contention of Mr.Tanna that the order passed by the Secretary is passed in contravention to the order passed by this Court earlier would render meritless and hence rejected.

(3.) The contention raised on behalf of the petitioner is that the Board, is an independent statutory Body and it has power to regulate its own procedure for the purpose of recruitment of the staff. It was submitted by Mr.Tanna that when the Board has taken policy decision of relaxation of the qualification in respect of its own employees, if the post of Assistant Welfare Commissioner is to be filled up from among its employees and when the Selection Committee, after undertaking the necessary procedure, had selected the petitioners, which was also approved by the Board and in the meeting of the Board the very Dy. Secretary or Mr.Bagora was also present, it would not be open to the State Government to take up the stand that the selection was illegal. In furtherance to his contention, Mr.Tanna also submitted that similar issue was dealt with by the Industrial Tribunal for the purpose of relaxation of qualification and the Industrial Tribunal has held that such relaxation can be made and, therefore, he submitted that the decision of the Secretary is, in any case, bad in law and cannot be sustained.