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PETITIONER: AHMEDABAD MUNICIPAL CORPORATION

       Vs.

RESPONDENT: VIRENDRA KUMAR JAYANTIBHAI PATEL(WITH S.L.P.(C) NO. 2317/199

DATE OF JUDGMENT:       23/07/1997

BENCH: SUJATA V. MANOHAR, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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 free on daily basis.  The respondent herein is  a dental surgeon who was carrui‘ng 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 legve.   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 applications  from qualified  dental  surgeons  for appointments to  the said  posts.   The  respondent  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.  This 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.      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

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of 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.      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 stays 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  of  daily  rated  workmen  in different sections  of the  Engineering  Department  of  the Corporation.  By the said award, the tribunal had prescribed a formula  for determining  the question  of  permanency  of daily  rated   workmen  in   the   Engineering   Department. Thereafter,   successive   circulars   were   issued   which considered the  proposal to  make permanent  the daily rated workmen of  different sections of Engg. Deptt., on the basis of the  formula laid  down  by  the  tribunal.    The  first circular dated  30.6.78 issued  by the  Corporation was  for making permanent  the daily rated workmen who have performed the duties  for five  years or more in different sections of Engineering Department.   This  circular makes it clear that the policy of making a daily rated workman it clear that the policy of  making a  daily rated  workman as  permanent  was applied  only   to  the   Engineering  Department   of   the Corporation.   The circular  dated October 4, 1980 again was issued with reference to the award given in IT Reference No. 179 of  1975, Standing  Committee Resolution  No. 2846 dated 6.12.78 and  Municipal Corporation  Resolution No. 969 dated 29.12.78  directing   the  department   to  make  the  staff permanent who  have put in a requisite number of days in the service of  the Corporation.   By  the  Subsequent  circular dated 26.8.82  it was clarified by the Corporation that only the daily rated workmen of the Engineering Department, daily wager Majdoor and employees in the equivalent pay scale came within the  ambit of  the policy  to make permanent such the daily rated  workmen who  have served  the  length  of  time prescribed  by   the  award.    Thereafter  the  Corporation approved the above proposal, and the Chief Accountant issued a circular  dated 1.9.1982  with an  amendment vide circular dated 12.10.1982  was by  way of  an amendment  to  circular dated 1.9.1982  which clearly  related to  the  daily  rated

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workmen of  the Engineering Department.  The circular No. 44 dated 16.8.84  further relied upon by the tribunal contained prospective policy which was to be followed in future in the matter of  making daily  rated workmen in the Corporation as permanent.  The award and the circulars referred to above do not show that they related to the case of the respondent who had been  visiting the  dental clinic run by the Corporation on daily  fee basis for treating patients.  Once it is found that the  award and  the circulars  referred to above relied upon by  the tribunal were not applicable in the case of the respondent, can  it be  held by  the  High  Court  that  the finding of fact recorded by the tribunal that the respondent is a  workman entitled  to be absorbed as a permanent dental surgeon in  the service  of the  Corporation is a finding of fact based on appreciation of evidence.      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  of 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 remnant 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  fact  recorded  by  the tribunal does not call for interference.      The second  reasoning give  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

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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 cache 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.      For the foregoing reasons the award dated June 15, 1989 and the judgment of the High Court dated October 9, 1989 are set aside.   The  appeal is  allowed, but  there shall be no order as to costs.      Before we  part with  this judgment,  we would  like to observe that, counsel for the Corporation has stated that in the event  this appeal is allowed, the Corporation shall not recover any  salary paid  to the  respondent  for  rendering services in  pursuance of  the award  of the  tribunal.   We order accordingly.      In view  of the  above, S.L.P(C)  No. 2317/1991  stands dismissed.