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1997(7) Supreme 202
SUPREME COURT OF INDIA
(From Gujarat High Court)
Sujata V. Manohar and V.N. Khare, JJ.
Ahmedabad Municipal Corporation -Appellant
versus
Virendra Kumar Jayantibhai Patel -Respondent
Civil Appeal No. 1090 of 1990
Decided on 23-7-1997
Counsel for the Parties :
For the Appellant : Ranjit Kumar, Mrs. Nandini Gore and Mrs. Manik Karanjawala, Advocates.
For the Respondent : Dushyant A. Dave, Sr. Advocate. (Ms. Mukti Sinha) Advocate. (Petitioner in SLP No. 2317/91)
Held : High Courts under Article 226 of the Constitution are entitled to issue directions, writs and orders for correcting the record of the inferior courts or the tribunal. It is true that the High Court while exercising its jurisdiction under Article 226 of the Constitution, cannot convert itself into a court of appeal and assess the sufficiency or adequacy of the evidence in support of the finding of fact reached by the competent courts or the tribunals, but this, however, does not debar the High Court from its power to enquire whether there is any evidence in support of a finding recorded by the inferior court or tribunal. It is well established that there is a difference between a finding based on sufficiency or adequacy of evidence and a finding based on no evidence. If the finding of fact recorded by the tribunal is based on no evidence, such a finding would suffer from error of law apparent on the face of record. As noticed earlier that award of the tribunal and circulars issued in pursuance thereof by the Corporation were not applicable to the case of the respondent and if these materials are excluded, the finding of the tribunal that the respondent is a workman entitled to permanent status in the service of the Corporation is rendered without any evidence and exposed to the vice of error apparent on face of record. We are, therefore, of opinion that the High Court fell in error in dismissing the Writ petition holding that finding of face recorded by the tribunal does not call for interference. (Para 4)
(ii) Service Law-Appointments-Where recruitment in service is governed by statutory rules-No scope for sympathy or equity in matter of such appointment-Recruitment of dentists by appellant Corporation-Respondent was not selected by Selection Committee-Order challenged-Respondent claiming himself to be a permanent dental surgeon in staff of Corporation-He had put in 1034 days of service as dental surgeon-Tribunal issued direction to Corporation for absorbing respondent in its permanent service holding that his case required sympathetic consideration-Reasoning of tribunal suffers from error of law.
Held : The reasoning given by the tribunal in issuing direction to the Corporation for absorbing the respondent in its permanent service which was not touched upon by the High Court is that the case of the respondent requires sympathetic consideration, as presumably the respondent has been visiting the Corporation s clinic since early seventies, remains to be considered. As noticed earlier, the recruitment of the doctors in the clinic run by the Corporation is made in accordance with the statutory rules and by no other method. Under the rules the vacancies are advertised for inviting applications from eligible candidates. After the applications are received the Selection Committee is constituted to select the candidates for appointment in the Corporation s clinic. Only after the candidates are selected they are taken in the service. It is also noticed earlier that respondent appeared before the Selection Committee but was not selected. Under such circumstances, there is no room for sympathy or equity in the matter of such appointment specially where the recruitment in service is governed by the statutory rules. If the reasoning given by the tribunal is accepted, the statutory recruitment rules would become nugatory or otiose and the department can favour any person or appoint any person without following procedure provided in the recruitment rules which would lead to nepotism and arbitrariness. Once the consideration of equity in the face of statutory rules is accepted then eligible and qualified persons would be sufferers as they would not get any chance to be considered for appointment. The result would be that persons lesser in merit would get preference in the matter of appointment merely on the ground of equity and compassion. It is therefore not safe to bend the arms of law only for adjusting equity. We, therefore, find that the reasoning given by the tribunal that sympathy demands the absorption of the respondent in the service of the Corporation suffers from error of law. (Para 5)
JUDGMENT
V.N. Khare, J.-The appellant (hereinafter referred to as the Corporation) is established and constituted under the Bombay Municipal Corporation Act, 1949 (hereinafter referred to as the Act). One of the duties assigned to the Corporation under the Act is to provide medical service to the residents of the Corporation. For that purpose, the Corporation has set up four dental clinics. The dentists attending the said clinics are the Corporation s employees recruited through the positive act of selection as provided under the statutory rules framed in that regard. Whenever any doctor of the Corporation is on leave, the Corporation takes the services of private doctors only with a view that patients may not be inconvenienced. Such doctors in lieu of their services are paid their fee on daily basis. The respondent herein is a dental surgeon who was carrying on his private practice from private clinics. Since early seventies the Corporation had been taking the services of the respondent for treating the patients whenever the Corporation s dental surgeons were on leave. In the year 1984 the Corporation decided to fill the vacant posts of dental surgeons in its clinics, and for that purpose issued an advertisement inviting application from qualified dental surgeons for appointments to the said posts. The respondents amongst others, also applied in response to the said advertisement. However, the respondent was not selected by the Selection Committee constituted for that purpose. On being unsuccessful in the said selection, the respondent raised a dispute claiming himself to be a permanent dental surgeon in the staff of the Corporation. The dispute was referred to the Industrial Tribunal, Gujarat under Section 10 of the Industrial Disputes Act for adjudication being reference No. (IT) 858 of 1984.
2. The case of the Union which sponsored the cause of the respondent was that since the respondent has put in 1034 days of service between 1978 and 1982 and as such in view of the award rendered by Industrial Tribunal in Case No. 179 of 1975 and the circulars issued in pursuance thereof, the respondent is entitled to be made permanent in the service of the Corporation. However, this was disputed by the Corporation. The Corporation submitted before the Tribunal that the respondent was not a workman covered under the award given in Case No. 179 of 1975 and further the benefit arising out of the award given in reference No. 179 of 1975 and the circulars issued in pursuance thereof, cannot be extended to the respondent as they are not applicable to the case of the respondent, However, the tribunal relying upon the aforesaid award and the circulars issued by the Corporation held that the respondent is entitled to be made permanent in the staff of the Corporation. Aggrieved, the Corporation challenged the said award in the High Court of Gujarat by means of a petition under Article 226 of the Constitution. The High Court dismissed the petition being of the opinion that the tribunal after appreciating the evidence on record has recorded a finding that the respondent employee is a workman, having served for a requisite number of years thus entitled to the benefits of a permanent employee. Aggrieved, the appellant has come up in appeal before this Court.
3. The first question that arises for consideration in this appeal is as to whether the finding of the tribunal that the respondent is a workman entitled to a permanent status in the service of the Corporation is based upon relevant materials. Materials relied upon by the tribunal in recording the aforesaid finding are, the award rendered in Ref. No. 179 of 1975 and various circulars issued by the Corporation in pursuance thereof. In order to answer the aforesaid question, it is necessary to refer the award of the tribunal and the circulars issued by the Corporation. The award dated June 30, 1978 given by the Industrial Tribunal, Gujarat in the reference IT No. 179 of 1975 related to the permanency
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