CASE NO.: Appeal (civil) 8574-8577 of 2001 PETITIONER: <ORG> & Anr. RESPONDENT: <ORG>. DATE OF JUDGMENT: 10/03/2003 BENCH: CJI. & AR. Lakshmanan JUDGMENT:

<NAME>, 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 <NAME> as the President of <ORG> at Ahmedabad. A Notification dated 7.12.2000, in this regard, was issued by the order of Governor by <ORG> of the Government of Gujarat in the Gujarat Government Gazette whereby <NAME> had been appointed as the President of <ORG> which was under challenge before <ORG> in Special Civil Application Nos. 12665/2000, 79/2001, 80/2001 and 93/2001 filed by <ORG>, <ORG>, <ORG> and Surat Textile Labour Union. As per the directions of the Chief Justice, the applications were placed before <ORG> of <ORG>. <ORG>, by its judgment dated 4.5.2001, allowed the applications and quashed the said Notification dated 7.12.2000. <ORG> further directed the respondents to proceed to make the appointment afresh on the post of the President of <ORG>, Gujarat in the light of what has been held in the said order and in accordance with law. Aggrieved by the order passed by <ORG> of <ORG>, <ORG> 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.

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 <ORG> <ORG>, a Registered Trade Union to direct the respondents therein not to make any appointments on the post of President of <ORG> save and except by appointing any Member of <ORG> as President and other allied reliefs. A prayer to issue a writ of quo warranto was also asked for to direct Shri <NAME> - respondent No.3 in the application to state the basis of his right to be appointed as President of <ORG> and to set aside and quash the appointment order dated 7.12.2000 purporting to appoint Shri <NAME> as President of <ORG>.

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.I.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.I.R. Act thereof provide for setting up of <ORG> and <ORG>. Section 10 of the B.I.R. Act, which pertains to the setting up of <ORG> to be known as <ORG>, is provided to consist of three or more Members, one of whom shall be its President. Section 10(4) of the B.I.R. Act provides that every Member of the <ORG> shall be a person who is or has been a Judge of <ORG> 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 <ORG> for not less than five years shall also be eligible for appointment as a Member of the <ORG>. According to the respondents, there are twelve Members of the <ORG> functioning in Gujarat State and so far as the <ORG> are concerned, there are 38 Judges functioning in Gujarat, four of them are Judges who have completed more than ten years' service as <ORG> Judges and several more <ORG> Judges are those who have completed more than five years' service as <ORG> Judges and are, therefore, eligible for being appointed as Members of the <ORG>. When the post of President of the <ORG> was vacant since the retirement of <NAME>, <NAME>, the senior-most Member of the <ORG> expressed his unwillingness to be appointed as President of the <ORG>, 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 <ORG> and no one except a Member can be appointed as a President of the <ORG>. It was, therefore, submitted before the <ORG> that anyone from the Members of the <ORG> 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.I.R. Act, no one who is not a Member of the <ORG> can be directly appointed as President of the <ORG>. It was further argued before the High court that for Members of the <ORG>, there is no other avenue of promotion except one by way of appointment as President of the <ORG> 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 <ORG> 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 <NAME> for appointment as the President of the <ORG> and that under Rules 2 and 3 of the Draft Recruitment Rules, it has become necessary for the <ORG>, on its administrative side, to recommend the appointment of an appropriate person by nomination on the said post under Rule 2(b) and that <NAME>, whose name was recommended, is fulfilling the criteria prescribed by the <ORG> as per the old Rules as well. It was submitted that considering the totality of the facts, the <ORG> 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 <ORG> 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 <ORG> 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 <ORG> 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 atleast for ten years either held a judicial post in India or should have been an advocate for <ORG> 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 <ORG> by the Law Officer of the <ORG> of Gujarat giving all details as to how the matter was considered by the Standing Committee of the <ORG> and as to how the decision was taken to appoint <NAME> as the President of the <ORG>.

<ORG> of <ORG>, by its judgment, held that a reading of Section 10 of the B.I.R. Act would show that it provides for the constitution of <ORG> with three or more Members, one of whom as its President and it also provides the eligibility for appointment as Member of <ORG>. While the eligibility has been prescribed under Section 10(3) and (4) of the B.I.R. Act for being a Member of <ORG>, for the purpose of President of <ORG> all that has been said in sub-section (2) of Section 10 of the B.I.R. Act is that one of the Members shall be its President. Therefore, being a Member of <ORG> is a pre-requisite and condition precedent for being the President of <ORG> and no person can be appointed as the President of <ORG> unless he is a Member of <ORG>. <ORG> further held that the absence of any Rules with regard to the appointment on the post of President of <ORG> except the existing Draft Rules framed by <ORG> 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, <ORG> and the Rules for appointment of President, <ORG> as contained in the Hand Book (1992) that too not in consultation with <ORG>, the only relevant provision which can be traced is Section 10 of the B.I.R. Act and according to Section 10(2) of the B.I.R. Act, one of the Members of <ORG> has to be the President. <ORG> further held that there was no lawful justification for excluding the candidates, who were holding the post of Member, <ORG> 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, <ORG> held :

"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 candidates and then making the selection. No such procedure has been followed and the consideration was kept confined to the Members of <ORG>, who had conveyed their willingness for appointment as President of <ORG>. 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 <ORG> and in terms of Section 10(2) of the Bombay Industrial Relations Act, without being a Member of <ORG>, there is no question of his appointment as the President of <ORG> either by promotion or by direct recruitment. Being a Member of <ORG> is a sine qua non for consideration for the post of President of <ORG> and no person who is not a Member of <ORG> could be considered for appointment as such without committing violence to the recruitment of Section 10(2).

..In the instant case, we find that the mode of direct recruitment is not contemplated and even if any direct recruitment is held for the post of President of <ORG> 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 <ORG> to be 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 <ORG> 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 consideration of the Members of the <ORG> for consideration of the post of the President. Under Section 10(2) every Member of the <ORG> 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 of <ORG> and in this regard, if any Rules are to be 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"

<ORG>, for the reasons stated above, quashed the Notification which is impugned in the applications and further directed the respondents therein to proceed to make the appointment afresh on the post of the President of <ORG> 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 <ORG>. We heard <NAME>, learned senior counsel, for the appellants and <NAME>, learned senior counsel, for the contesting respondents.

Learned senior counsel appearing for the appellants submitted that the provisions of Section 10 of the B.I.R. Act clearly spells out that apart from the mode of selecting the President, by promotion from amongst the Members, the President can also directly be appointed from the sitting or retired <ORG> Judges. He further submitted that the <ORG> failed to appreciate that Section 10(2) of the B.I.R. Act does not envisage the mode of appointment and that the <ORG> failed to appreciate that the words of Section 10(2) of the B.I.R. Act are not that the President shall be appointed from one of the current Members of <ORG> and, therefore, the <ORG> has erroneously read these words in Section 10(2) of the B.I.R. Act. He further submitted that the <ORG> failed to appreciate that Section 10(4) of the B.I.R. Act provides for eligibility criteria and <NAME> fulfills the eligibility criteria. He further submitted that the <ORG> proceeded on an erroneous footing that the B.I.R. Act does not contemplate the appointment by direct recruitment and only the Members of <ORG> from the zone of consideration for appointment to the post of President, <ORG>.

Per contra, <NAME>, 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 <ORG> is eligible for becoming the President of the <ORG> and that becoming Member of the <ORG> is sine qua non for being considered for the post of President of the <ORG>. According to him, <NAME> 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 <ORG> 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 <ORG> could become its President. He further submitted that unless one is or has been the Judge of <ORG>, the post of the President of the <ORG> 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 <ORG> were qualified for being appointed as President of the <ORG> by nomination in accordance with the Draft Rules that were relied upon by the Government supporting the appointment of <NAME> and that the Members of the <ORG> 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 <ORG> 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 <ORG> ;

(b) by nomination. Draft Rule 3, inter alia, provides that to be eligible for appointment by nomination, a candidate must have atleast ten years either held a judicial post in India or been a Advocate of <ORG> or have expert knowledge of industrial matters. It was further contended that the appointment of Shri <NAME> straightaway by nomination without taking into consideration the cases of nomination of existing Members of <ORG> who had completed ten years' functioning as a Judicial Officer has been rightly held by the <ORG> as violative of Articles 14 and 16 of the Constitution 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 of a Junior Judicial Officer as President of <ORG> without considering the cases of existing Members of <ORG> 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 <ORG> 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, <ORG> 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 <ORG> on the administrative side to pick up <NAME> who was 9th in the list of seniority at the relevant time. He submitted that the appointment of <NAME> 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 <ORG>, then a large number of <ORG> Judges, Advocates apart from the Members of <ORG> 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 <ORG>'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 <ORG> 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 <ORG>. 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.

We have given our thoughtful consideration on the rival submissions made by the respective counsel appearing on either side. Before proceeding to consider the rival submissions, it is useful to reproduce the relevant provisions governing the controversy which run as follows:

"Section 10. Industrial Court.- (1) The State Government shall constitute <ORG>.

(2) <ORG> shall consist of three or more members, one of whom shall be its President.

(3) Every member of <ORG> shall be a person who is not connected with the industrial dispute referred to such court or with any industry directly affected by such dispute:

Provided that no person shall be deemed to be connected with the industrial dispute or with the industry by reason only of the fact that he is a shareholder of an incorporated company which is connected with, or likely to be affected by such industrial dispute; but in such a case, he shall disclose to <ORG> the nature and extent of the shares held by him in such company.

(4) Every member of <ORG> shall be a person who is or has been a judge of <ORG> or is eligible for being appointed a judge of such Court:

Provided that-

(a) a person who has been a Judge not lower in rank than that of Assistant Judge, for not less than three years; or

(b) a person who has been the presiding officer of <ORG> constituted under any law for the time being in force, for not less than five years; or

(c) a person who holds a degree in law of a <ORG> established by law in any part of India and is holding or has held an office not lower in rank than that of Assistant Commissioner of Labour under <ORG>, for not less than ten years, shall also be eligible for appointment as a member of <ORG>.

Provided further that, one member of <ORG> may be a person not so eligible, if in the opinion of <ORG> he possesses expert knowledge of industrial matters.

DRAFT RULES

1. These rules may be called the Recruitment Rules for the post of President, <ORG>, Gujarat, 1998.

2. The appointment of President, <ORG>, Gujarat, shall be made by the Governor of Gujarat, in consultation with <ORG> and <ORG>, either-

(a) by promotion from amongst the Members, <ORG> on the basis of seniority-cum-merits provided that a person shall not be eligible to be promoted to the post of President, <ORG>, unless he has completed five years' service on the post of Member, <ORG>, or

(b) by nomination.

3. To be eligible for appointment by nomination, mentioned in rule 2(b), a candidate must not be connected with any industry as defined in the Bombay Industrial Relations Act, 1946 and must

(i) not be less than 45 years of age, and

(ii) have for at least 10 years either held a judicial post in India or been an Advocate for <ORG> or have expert knowledge of Industrial matters.

4. A person appointed by direct recruitment shall normally be on probation for a period of one year and shall have to pass an Examination in Hindi and/or Gujarati, according to the Rules prescribed by the <ORG>.

Existing Rules The Recruitment Rules for the post of President, Industrial Court ,is as under:

Unless the post is filled up by appointment of a serving or retired Judge of <ORG>, appointment shall be made either (a) by nomination or (b) by promotion from among the Members of <ORG>.

To be eligible for appointment by nomination, the candidate must not be connected with any industry as defined in the Bombay Industrial Relations Act, 1946 and must-

(i) not be less than 45 years of age;

(ii) have for atleast 10 years either held a judicial post in India or been an Advocate for <ORG> or have expert knowledge of Industrial matters."

In the background of the facts and circumstances and the provisions of law extracted above, the following points arise for consideration by this Court :-

(a) What is the true scope and interpretation of Section 10(2) read with Section 10(4) of the B.I.R. Act ?

(b) Whether Section 10(2) of the B.I.R. Act can be read to mean that the President of <ORG> must be appointed from among the existing Members of <ORG> when the provision in fact is not in such terms?

(c) Whether the reading of the provisions of Section 10 of the B.I.R. Act clearly spells out that apart from the mode of selecting the President, by promotion from amongst the Members, the President can also directly be appointed from the sitting or retired <ORG> Judges or from the Judges of <ORG>, Ahmedabad and District Judges, who fulfills the eligibility requirement for appointment as Member of <ORG>?

(d) Whether <ORG> has failed to appreciate that Section 10(2) of the B.I.R. Act does not envisage the mode of appointment?

Our attention was drawn to the relevant pleadings filed before <ORG> and also in this Court.

As already noticed, the appointment of <NAME> as the President of <ORG> vide Notification dated 7.12.2000 issued by <ORG>, <ORG>, is under challenge by way of these appeals. The circumstances and the process, which had culminated in the appointment of <NAME> as the President of <ORG>, had been fully narrated in the affidavit in reply filed on behalf of respondent No.2 in <ORG>. Since <NAME>, who was working as the President of <ORG>, was to retire on 31.1.2000 and, therefore, <ORG>, <ORG>, sent a communication dated 7.1.2000 to <ORG> of Gujarat, inter alia, stating therein that, due to the retirement of <NAME>, the post will fall vacant and the question of preparing recruitment Rules for the post of President of <ORG> is under consideration by <ORG> and till the Rules are not finalized, <ORG> cannot take a decision in respect of the appointment on the said post. Under these circumstances, it was decided to place the matter for consideration of <ORG> of <ORG> of Gujarat, as to by which mode the post of the President, <ORG> is to be filled up. Accordingly, the said matter was considered by <ORG> of <ORG> of Gujarat and it was decided on 8.2.2000 that the post of President, <ORG>, Ahmedabad, be filled up by nomination under clause (b) of Rule 2 of the proposed Rules, as none of the present Members of <ORG> is eligible to be appointed to the said post by promotion, having not completed five years' service on the post of Member, <ORG>. The claim of all the incumbents of the post of Member of <ORG> was examined in light of the criteria prescribed by <ORG> of Gujarat for appointment on the post of President of <ORG>. It was decided by <ORG> to fill up the post of President of <ORG> by nomination as stated above. In the light of the decision of <ORG> to fill up the post of the President of <ORG> by way of nomination, it was further decided to ask for the willingness of the Judicial Officers working in the cadres of City Civil Court Judges and District Judges, who are not less than 45 years of age and have put in ten years of service in judiciary including the period of practice at the <ORG> for being considered for appointment in question. Pursuant to the said decision, the willingness was called for and in all, nine judicial officers had expressed willingness for being considered for the post in question, the details of which have been furnished at page 92 of the paper book. Thereafter, the said matter was placed for consideration of <ORG> of <ORG> of Gujarat and in the meeting of <ORG> held on 30.3.2000, it was decided to direct the office to resubmit the matter along with the recruitment Rules prescribing eligibility criteria for appointment to the post of President, <ORG>. Pursuant to the said decision, the matter was again considered in the light of the existing Rule provision by the office. As per the directions of <ORG>, the matter was again placed before <ORG> for further consideration along with the Rule stated above. In the meeting of <ORG> of <ORG> held on 1.5.2000, the consideration of the subject was deferred, however, in the meantime, the office was directed to resubmit the matter, pointing out the provisions of law in the matter, particularly mentioning the provisions regarding eligibility, experience and age of superannuation etc. prescribed for the post in question. Pursuant to the said direction of <ORG>, a detailed note was submitted for consideration of <ORG> and after considering all aspects, in the meeting held on 29.6.2000, <ORG> had taken decision to the effect that the name of <NAME>, Joint District Judge, Vadodara may be recommended to <ORG>, <ORG>, for appointment as President of <ORG>, Ahmedabad by nomination provided under the Recruitment Rules for the post in question. Accordingly, the office had sent a communication to the <ORG> on 5.7.2000 recommending the name of <NAME> for appointment on the post of President, <ORG>, Ahmedabad. Soon after the recommendation was made by <ORG> to the <ORG> as aforesaid, a representation was received by <ORG> from <NAME>, the President, <ORG>, Ahmedabad in connection with the filling up of the post of President, <ORG>, Ahmedabad. In this connection, <NAME> was called for personal hearing on 11.8.2000 and he was heard by the Chief Justice on the issue. Again, <NAME>, President (In- charge) of <ORG> vide his letter dated 4.11.2000 expressed his unwillingness to be promoted as the President of <ORG>.

On the basis of what is stated above, it is clear that the decision to fill up the post of the President of <ORG> by way of nomination as provided under the Rules, was arrived at, after considering all aspects, not only that the process of selecting the person to be recommended to the Government was also undertaken transparently and before taking the decision, the matter was considered from time and again by <ORG> of the High Court of Gujarat and after due consideration and deliberations, the decision was taken to recommend the name of Shri <NAME>. Considering the totality of the facts, it is clear to us that there is neither illegality nor arbitrariness in taking the decision of recommending the name of Shri <NAME> for appointment on the post of President, <ORG>, Ahmedabad.

It is seen from the records that at the request of the <ORG>, the eligibility criteria for appointment on the post of President, <ORG> has been determined by <ORG> and the same has been incorporated in the Draft Recruitment Rules. We have already extracted Rules 2 & 3 of the Draft Recruitment Rules. Shri <NAME> is eligible for the post of the President, <ORG>, Ahmedabad as he has completed ten years' service in judiciary including the period of practice at the <ORG>. The period of practice/service of Shri <NAME> is given below:-

"Period of Practice/Service or Mr. <NAME>

1.8.1978 to 30.11.1983 :- Worked as Civil Judge(JD) Resigned on :- 30.11.1983 Period of Practice :- Enrolment No.G/296/1974 on 30.10.74 Practice : 30.10.1974 to 31.7.1978 1.12.1983 to 19.2.1992 From 20.2.1992 to 22.12.1999 -Addl. Public Prosecutor, <ORG>, Ahmedabad From 23.12.1999 to 21.12.2000 - Worked in the cadre of District Judge at Vadodara. From 22.12.2000 - As President, <ORG>." -

In our opinion, in the case of appointment of President of <ORG> by nomination, it is not necessary that he must be appointed as Member at the first instance. Section 10(2) of the B.I.R. Act deals with the composition of <ORG>, which does not lay down the mode of appointment. The words of Section 10(2) of the B.I.R. Act are not that the President shall be appointed from one of the current Members of <ORG>. In our view, <ORG> has erroneously read these words in Section 10(2) of the B.I.R. Act. It is also seen that the proposed Recruitment Rules were framed by <ORG> at the request of the <ORG> and pending approval of the <ORG>. We are, therefore, of the opinion that the appointment of <NAME> as President of <ORG> is not in breach of Section 10(2) of the B.I.R. Act and also not violative of Articles 14 and 16 of the Constitution of India. To be eligible for appointment by nomination, the candidate must not be connected with any Industry as defined in the B.I.R. Act and must (1) not be less than 45 years of age, and (2) have for atleast ten years either held a judicial post in India or been an advocate for <ORG> or have expert knowledge of Industrial matters. Based on the recommendation of <ORG>, on its administrative side, the <ORG> of Gujarat issued the Notification on 7.12.2000 whereby <NAME> had been appointed as the President of <ORG>. Considering the totality of the facts, it is clear that by recommending the appointment in question, <ORG> of Gujarat had not only acted within its rights but the same had been done in due discharge of the constitutional duty.

In our view, Section 10(2) of the B.I.R. Act cannot be read to mean that the President of <ORG> must be appointed from amongst the existing Members of <ORG> when the provision in fact is not in such terms. <ORG> has confused the concept of the President of <ORG> being from among the Members of the said Court with the erroneous concept that the said President must be from amongst the existing members of that Court. A reading of the provisions of Section 10 of the B.I.R. Act clearly spells out that, apart from the mode of selecting the President by promotion amongst the Members, the President can also directly be appointed from the sitting or retired <ORG> Judges or from the Judges of <ORG>, Ahmedabad and District Judges, who fulfills the eligibility requirement for appointment as Member of <ORG>. <ORG>, in our view, has failed to appreciate that the words of Section 10(2) of the B.I.R. Act are not "that the President shall be appointed from one of the current Members of <ORG>". The narrow interpretation of Section 10(2) of the B.I.R. Act and the reasoning of the <ORG>, in our view, completely rules out the appointment of President, <ORG> through the mode of nomination. In other words, the <ORG> failed to appreciate that once a person is appointed as the President of <ORG>, he automatically becomes a Member. Section 10(2) of the B.I.R. Act only envisages that the President is the senior Member of <ORG> and that the appointment of President of <ORG> is inherent in his appointment as Member of <ORG>.

This Court, in the case of <CITATION> ., , held that the <ORG> Judges and the Judges of <ORG> 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 <ORG> for consultation and approval of the Rules. The administrative side of <ORG> framed the Draft Rules and the appointment offered to <NAME> was in accordance with the Draft Rules. This apart, the eligibility criteria for appointment on the post of the President of <ORG> has been determined by the High court and the same has been incorporated in the Draft Recruitment Rules at the request of the Government.

For the foregoing reasons, we are of the opinion that no illegality is committed by recommending the name of <NAME> as the President of <ORG>, for appointment by nomination.

The appeals are allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.


JUDGMENT <NAME>, <NAME>

1. This is an appeal by the plaintiff, <ORG> against the order of the learned single Judge in IA 2094/94 in Suit 432/94 dated 31.10.1995. By that order, the learned Single Judge dismissed the application of the appellant for grant of temporary injunction under Order 39 Rule 1 CPC against the respondent. The dispute pertains to trade mark, emphasis being on trade dress. Though reference is made in the grounds of appeal to the carton being a piece of artistic work within Section 2(c) of the Copyright Act, arguments were mainly focussed on 'trade dress'.

2. The appellant <ORG> sells Corn Flakes with cartons which describe the cartons as '<ORG>' (the original and the best). The respondent is selling corn flakes using a carton more or less similar in size but with the title "AIMS ARISTO CORN FLAKES" written just at the place where appellant's display the words '<ORG>'. This is done at the left hand top of the carton. The appellants grievance in the suit as well as in the IA was that the carton was likely to confuse the buyers of corn-flakes and there was every likelihood of consumers purchasing the respondent's goods in the belief that they were of the appellant. The learned single Judge after referring to the case-law pertaining to 'trade dress', of the appellant dismissed the IA observing :

"If the trade dress in this case is as was found in the above case (i.e., <ORG> and others v. <ORG> ((1978) RPC 635). I would have had no hesitation to accept the arguments of Mr. <NAME>. Applying the test laid down therein, I am of the view that the trade dress of the defendant in this case is entirely .... different from the trade dress of the plaintiff and there is absolutely no scope for any confusion."

On that basis, the learned Judge stated that the appellant had not proved prima facie case nor balance of convenience and hence no injunction could be granted.

3. In this appeal, we have heard learned counsel, for the appellant at the stage of admission. Learned counsel for the defendant was also present.

4. It was contended before us that the learned single Judge, having accepted the legal principles relied upon for the appellant in respect of 'trade dress' erred, on facts, in holding that there was no scope for confusion among the consumers. It was pointed that the size and shape of the carton was similar being rectangular, that in the words 'FLAKES' in the appellant's carton the words L and A were joined together closely or rather touch each other, that respondent also described his goods as original and the best, that both contain a picture of the corn flakes, that there was a small square on the left hand top where the words '<ORG> CORN FLAKES' were written inside the square, and that the respondent had also put a square on the left hand top with the words 'AIMS ARISTO CORN FLAKES'. It was further stated that in all the cartons of <ORG> in regard to various commodities, there was a red-band at the top which took off from the square on the left top and ran horizontally across on the front top into the right and to the other sides and respondent also used a similar red band taking off horizontally from the square on the left top. It was also argued that even in regard to the square on the left side top, <ORG> used an inner red border, then a white gap, and then an outer green border, running all along the sides of the square while respondent was also using the same red and green borders for the square on the left top. It was argued that these similarities in dress were so clear that purchasers were sure to be misled. It was submitted that there was a presumption that the consumer's memory was short and if a consumer had purchased a carton of appellant's at one point of time, he would easily mistake the respondent's carton for the appellant's. It was further submitted that respondent had done this with dishonest intention.

5. Before we go into the above aspects, it is necessary to refer to a few more facts. If we look at the appellant's carton, we find that the words '<ORG> is displayed very prominently in fairly big letters, above the words, 'CORN FLAKES' in the square on the left hand top. Then to the right of the words '<ORG> CORN FLAKES' there is the picture of the face of a hen, upto its neck. There is a bowl containing corn flakes and a cherry therein with a big spoon. Pouring of milk is shown into the plate. On the right side of the carton, it is stated prominently that the flakes are 99% fat free.

6. When we come to the respondent's carton, we have in the left hand top rectangle the words 'AIMS ARISTO' corn flakes prominently written. We also have ISI in a smaller rectangular bracket but shown quite prominently below the rectangle on the left-top, a plate blue in colour with corn flakes and cashew etc. There is no picture of milk pouring into the plate.

7. In other words, while in the rectangle on the left hand top, the words <ORG>'s corn flakes are prominent for the appellant, the words 'AIMS ARISTO' corn flakes appear very prominently for the respondent, at the same place.

8. It is true that the appellant has referred to certain similarities in the size and shape of the carton, there being a square on the left top with word '<ORG>; the words L and A being joined, border being red and green and a red band running round in the top horizontally. It is true that these similarities were not set out in the order. But in our prima facie view, the prominent display of the words '<ORG>' in bold red letters in white background inside the square on the left-top appellant's carton cannot go unnoticed by any buyer. We have to understand the learned Judge's words "trade dress of the plaintiff is entirely different", in that light, prima facie.

9. The law relating to 'trade dress' is very clear. <NAME> in 'Law of Trade Marks' (12th Ed. 1986, para 16.67) says that it is usually true in some degree that a trader's goods are recognised by their general appearance, or "get-up". Accordingly, resemblance or 'get-up' is not uncommonly an ingredient in passing-off, and it is possible for imitation of get-up alone to amount to passing-off. Such cases are rare, since few traders rely on get-up alone to distinguish their goods, so that trade names and word trade marks are ordinarily present too, and the author says :

"and in these days, in this country, a difference in names is enough to warn the public that they are getting one trader's goods and not the others" (Sapers v. <NAME> ((1953) 70 RPC 173)".

In <ORG> v. <NAME> (1976 RPC 653), the plaintiff's bag displayed the words "Fison's Gro Bag" while the defendant's bag contained the words '<ORG> Crop-Bag; and it was held that the prominence given to the name overshadowed the other similarities in get-up. The plastic bags were peculiar. The plaintiffs were manufacturers of the plastic bag filled with a peat-based compost from which plastic rectangles could be removed thereby exposing the compost beneath the plastic. Seedlings could then be planted in the compost so that the bag could function as containing growing element. The bag was partly over-printed with horticultural decoration and instructions and marked '<ORG> Gro Bag'. They were in market for 2 years. The defendants were peat merchants and got plastic bags produced with "identical size" and which bore "over-printed" instructions and decoration somewhat similar to those of the plaintiff's bag. While refusing injunction, <ORG> observed that even accepting that the plaintiff's had a get-up reputation in their growing bags and though there were obvious similarities between the bags in issue, it was inconceivable that any one seeing the defendant's grow bag could fall to observe that it was a product of the defendants' and that a normal purchaser could not be misled. He further said that "if the <ORG> Gro-Bag had not contained the name "<ORG>" or if the name "<ORG>" had not been so prominently displayed, by the defendants, he might have reached a different conclusion. He doubted whether they could have done more to signify to a buyer that he was watching at a product of <ORG> and not at a product of <ORG>'.

10. <CITATION> (22. RPC 327), was also a case of similar 'get-up'. The plaintiff was selling, for 15 years, dried materials for soup in packets of certain size, shape and printing put in steel boxes of a peculiar kind, with the words '<NAME>' displayed thereon. Later, defendants started selling similar preparations for soup which were put up in a series of similar packets and boxes, and the name '<ORG>'s "appearing at the place where <NAME>" appeared on the plaintiff's goods. The plaintiffs also complained against the wrapper of the defendants containing untrue statement as to Prize medals and awards in the same manner as the true statements of the plaintiff. <ORG> refused to grant injunction and in <ORG>, while confirming his order, <NAME> observed that the word '<NAME>' being printed prominently on the packets and the words '<ORG>' printed on defendant's packets, there was no scope for confusion in spite of the similarity in the packets and boxes.

11. In yet another case, relating to similarity in trade-dress, <ORG>, in <ORG> v. <ORG> ((1981) RPC 429), confirmed the judgment of <NAME> of <ORG> of New South Wales. In that case, the plaintiffs were selling lemon squash under the name 'Sole' in greenish-yellow cans with a medallion type label. The defendants launched a lemon squash called 'Pub Squash' and the label was of a medallion type bearing the words 'Pub Squash' on the label. The cans were of the same size and shape with colour yellow as those of plaintiff. The proceedings of the plaintiff brought on the ground of passing off, unfair trading etc. were dismissed. Judgment of <NAME> is elaborate and he held that the defendants had sufficiently differentiated their product by their 'name'. On appeal to <ORG>, it was observed that over emphasis on advertised description of a product might indeed lead to stifling of competition. Lord <NAME> said :

"But competition must remain free, and competition is safeguarded by the necessity for the plaintiff to prove that he has built up an intangible property right' in the advertised description of his product, or, in other words, that he has succeeded by such methods in giving his product a distinctive character accepts by the market. A defendant, however, does no wrong by entering a market created by another and then competing with its creator. The line may be difficult to draw; but, unless it is drawn, competition will be stifled."

Their Lordships then said that the test applied by, <ORG> in the instant case was that one has to see whether the consuming public would be confused or misled by the get-up, the formula or the advertising of the respondent's product into thinking that it was the appellant's dissimilar product. <ORG> held on the facts, that the public were not so decieved.

12. In <ORG> v. <NAME> ((1905) 22 RPC), the appellant was selling Soda Water in bottles, with a neck label around then, the body of the label being of chocolate colour with a white border and a red medallion in the centre of the label. The respondents, subsequently, sold soda water in bottles with a somewhat similar neck lable round them in same colour and with a central red medallion. However, appellants' labels showed '<ORG>'s soda water' printed on them in white characters while respondents' contained the name '<NAME> Soda Water'. Action by plaintiffs failed. It was held by <ORG> that a fraudulent intent cannot be presumed inspite of the similarities in the bottles, labels colour and medallion because the distinguishing feature of name adopted by defendants showed that they had no intention to deceive purchasers. Lord <NAME> LC said :

"I should have thought if you looked at the two bottles together no human being could have mistaken one for the other. If 'Royal' and 'Flag' were sufficiently distinctive in the case to which the learned counsel called our attention <CITATION> . (17 RPC 628), I should have thought 'Gibbens' and 'Schwappes' are equally impossible to be confounded with each other."

Lord <NAME> said it was "ridiculous" to apply the principle of similarity in trade dress in such a situation. He said :

"I can quite understand a case in which, although colourably a defendant has introduced his own name, yet the nature of the wrapping up, the nature of the package itself, or, in this case, the shape of the bottle, may all have been so closely imitated that the mere introduction of some distinctive mark, to which no ordinary observer would have applied his mind, will not get rid of the obvious intention to pass one goods off as the other; but to apply the proposition to this case appears to me to be a little short of ridiculous".

It was held that the name of '<ORG>' was so plainly placed upon the bottle as it could possibly be and it was in the place where 'Schweppes' was on the bottle of the appellant, and there was no intention to deceive.

13. The above case also answers the contention of fraudulent intent argued by the appellant's counsel before us. Similar views as to absence of fraudulent intent were expressed in <CITATION> . (supra), also, to which we have already referred and which came from New South Wales before <ORG> (1981) RPC 429 (PC).

14. In the present case, in spite of any other close resemble ness in the cartons, the name '<ORG>' written prominently on the respondents carton would, in our view, prima facie, as in case before Lord <NAME> show that there was no intention on the part of the defendant to play fraud by misrepresenting his goods as the goods of the appellant. In that very case, Lord <NAME> bury emhasized the need to see the whole description on the goods as one whole and not the individual features in isolation. He said :

"Inasmuch as you and certainly not to impute fraud without proof, you are not to suggest that people are fradulently committing some commercial trick without sufficient evidence, and I cannot conceive here how anybody could gravely argue that the one thing could be mistaken for the other by anybody who looked as it.

**** *** *** *** *** The whole question is these cases is whether the thing - taken in its entirety, looking at the whole thing, is such that in the ordinary course of things a person with reasonable apprehension and with proper eyesight would be deceived."

Thus, the above case also lays down that the trade dress or rather the whole thing must be seen in its entirely and not parts in isolation. It is not permissible, therefore to say that the square on the left side top had a small red and green border or there was a red band horizontally and defendant's carton if examined from close quarters, showed these feature. Viewed as a whole, one can see that the words <ORG>, and <ORG> are prominently displayed on each and therefore there can be no confusion, prima facie.

15. That brings us finally to the question of the failing memory of the customer. The argument is that customer's have short memory and that if the trade dress is similar, the customers are likely to get con fused.

16. It has now been held that there are limitations to the theory of imperfect memory. Halsbury's Laws of England (4th Ed.) (Vol. 48, para 139) says that this principle of imperfect recollection must not be pressed too far. It says :

"The <ORG> must bear in mind that the marks will not normally be seen side by side and quard against the danger that a person seeing the new mark may think that it is the same as one he has seen before, or even that it is a new or associated mark of the proprietor of the formal mark. However, the doctrine of imperfect recollection must not been pressed too far <ORG> v. <ORG> ((1954) 71 RPC 455 at 457). Marks are often remembered by general impressions of by same essential feature (<ORG> ((1951) 68 RPC 106 (PC) 289), (on appeal 71 RPC 348. (CA).

In fact in <ORG> case above referred to, Lord <NAME> said "and if a person is so careless that he does not look, and does not, ........... treats the label fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeed up - the face of the label on which the trade has placed his own name, then you certainly cannot say he is deceived in fact, he does not care which it is. That would be the true interference which I think a person would draw from conduct so described."

17. Having dealt with the contention of imperfect memory of the coustomer, we shall now deal with the class of purchasers, which is also an important factor. who are the persons who go to purchase '<ORG>'s' Corn Flakes ? Prima facie, in our opinion, these people belong to a middle-class or upper middle class and above who are fairly educated in English and are able to distinguish "<ORG>'s" and what is not "<ORG>". In American Jurisprudence (2d) (Trade Marks Supp. para 19 page 178) it is said that it is necessary to note the fact :

"that customers for fasteners are sophisticated and discerning, that defendant acted with goods faith.

The case was one where customers purchasers of fasteners in the automobile industry. (<ORG> v. <ORG> (LDC III (US PU 106")). Again <NAME>, Law of Trade Marks (12th Ed. 1980) (Para 1706) says that :

"If the goods are expensive and not of a kind usually selected without deliberation, and the customers generally educated persons, these are all matters to be considered (Piano list ((1906) 23 RPC 774), Claudiness Ash v. Invica ((1911) 28 RPC 597 = 29 RPC 465 (CA) (HL) (dentists), Rysta (1943) 60 RPC 87).

18. In Piano list's (supra) case an application was made for the registration as a trade mark of the word 'Neola' for "piano player" being a musical instrument included in class 9". Coming to know of this application, the registered proprietors of the trade mark "Pinole" who were registered for all goods in class 9, opposed the above application for registration. The Registrar overruled the objection and ordered registration. On appeal, Justice <NAME> said that having regard to the kind of customers" for such goods and the distinction in the names, there was not likely to be any confusion and dismissed the appeal.

19. If that was so between 'Neole' and '<ORG>', the case of <ORG> and <ORG>, in our prima facie view, presents no difficulty for distinct identification. <NAME> in fact observed in the above case :

"Of course, one knows that the persons who buy these articles are generally persons, of some education, ........ my opinion is, having regard to the nature of the customer, the article in question and the price at which it is likely to be sold, and all the surrounding circumstances, no man of ordinary intelligence is likely to be deceived ..."

We are, on the facts of the case before us, prima facie of the same opinion in regard to <ORG> and <ORG>.

20. Learned counsel for the appellant placed reliance on <ORG> v. <NAME>, (supra). In that case, the plaintiff was selling toothpaste as "<ORG>". The appellant used packages with colours red, white and dark blue the respondents also used red, white and blue. It was held that the defendant borrowed features from the plaintiff's packaging, tubes and labels and the ordinary purchaser of normal memory was not to be expected to examine the goods keeping them side by side, and the get-up would cause confusion. In our prima facie view, this case is clearly distinguishable because, apart from the fact that the get up was the same, the name used by the defendant was found to be deceptively similar. The question of imperfect memory was relevant there because the purchaser could be a person who would not discern whether the tooth paste was <ORG> or <ORG>.

21. We shall now deal with likewise <CITATION> . ((1989) (1959) RPC 83), cited for the appellant. There, no doubt, both parties sold sweet or 'fruit drops' in decorated tins. No doubt the names, <ORG> fruit flavoured drops and <ORG> fruit flavoured drops were somewhat different but, if one looks at the box, one can find the trade dress was too prominent and the names not that prominent. The learned Judge <NAME>, J. held that it was possible that purchasers might get confused. Prima facie, the case goes against the view expressed by <ORG> in the cases referred to above. Further this case has been placed in a special category by writers because here the picture of the sweets on the top of the boxes was so similar, spreading over the entire face of the box, and the learned Judge felt more impressed by that fact though the names were not so similar, this view appears from Halsbury's Law of England 4th Ed. para 168 which says that we should look at the photographs of the boxes. <NAME> says (para 16.6.7) that this case was treated as a case of deliberate copying offending plaintiff's copyright. It was also held that there was infringement of registered trade mark. So far as passing off was concerned, it was seen as a case where having regard to the arrangement of the picture of the sweets on the top of the box, that a person with imperfect memory could be misled. Monday v. <NAME> ((1905) 22 RPC 273), cited for the appellant is also distinguishable. The appellants mark there was of an 'ace of clubs' with the word 'club' upon bottles which were sold with label "Club Black Enamel", while defendants did likewise sell with 'ace of spades' and label "hub Black Enamel". Injunction was granted on the ground of fraudulent get up. The words 'Hub' and 'club' were treated as similar and likely to create confusion. This case is also distinguishable.

22. In the result, on our prima facie conclusions, we reject the plea of similarity or likelihood of confusion, we reject the plea of fraud as well as the one based on imperfect memory. We are of the view, prima facie that even though the get up is similar, the different names <ORG> and <ORG> prominently displayed, make all the difference and this is not a fit case for interference with the order of the learned Single Judge refusing injunction.

23. These are prima facie views and it is made clear that the suit will be disposed of on the basis of such evidence as may be produced therein without being influenced by anything said here. Appeal is dismissed.