JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Shukla, learned advocate for the petitioner trust and Mr. Shah, learned advocate for the workmen as well as Ms. Chitaliya, learned AGP for respondent State. 2. In this group of four petitions, two petitions have been filed by the trust and two petitions have been filed by the concerned two workmen. In effect and in substance, the petitions filed by the trust and the petitions filed by the workmen are cross petitions. 3. So far as the factual background is concerned, the concerned two workmen raised industrial dispute with the allegation that they were illegally terminated by the opponent trust. The appropriate Government referred the dispute for adjudication to the learned Labour Court at Bhavnagar. The said disputes by the concerned workmen were registered as Reference (LCB) No. 104 of 1987 and Reference (LCB) No. 103 of 1987. 4. Before the learned Labour Court, the concerned two claimants in above mentioned reference cases filed their respective statements of claim. The claimant in Reference (LCB) No. 104 of 1987 claimed that she was appointed in August 1980 by the petitioner trust as Assistant Cook and her service came to be illegally terminated with effect from 1.5.1982 by oral order of the Honorary Secretary of the trust. She also alleged that at the time when her service came to be terminated, the petitioner trust did not follow the procedure prescribed by law. She further alleged that though she worked continuously from August 1980 to 30.4.1982, the petitioner trust did not pay retrenchment compensation at the time when she was discontinued from service and opportunity of hearing was not granted and notice was also not served. The claimant alleged breach of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 and demanded reinstatement in service with consequential benefits. 5. So far as the claimant in Reference (LCB) No. 103 of 1987 is concerned, she alleged that she was appointed in July 1980 by the petitioner and she was employed as workman and she had worked continuously from July 1990 and her service came to be illegally terminated by Honorary Secretary of the petitioner trust with effect from 1.5.1982. She alleged that at the time when her service came to be terminated, the petitioner trust did not follow the procedure prescribed by law. She alleged that at the time when her service came to be terminated, the petitioner trust did not follow the procedure prescribed by law. She alleged that though she worked continuously from August 1980 to 30.4.1982, the petitioner trust did not pay retrenchment compensation at the time when she was discontinued from service and opportunity of hearing was not granted and notice was also not served. The claimant alleged breach of Sections 25F, 25G and 25H of the Industrial Disputes Act, 1947 and demanded reinstatement in service with consequential benefits. 6. The petitioner trust opposed the reference cases by filing written statement in respect of both the cases. The petitioner trust claimed that the provisions under GCSR are applicable to/adopted by the petitioner trust and the appointments with the trust are made in accordance with GCSR and with approval/sanctioned by the Government. It was also claimed that the petitioner trust engaged in managing education institution. It is pertinent that in respect of both the claimants, the petitioner trust claimed that the said two claimants were appointed on probation basis and with specific clarification that their appointments are subject to approval and sanction by the State Government. In respect of the concerned claimant in Reference (LCB) No. 104 of 1987 the petitioner trust further claimed and specifically averred that the said claimant was engaged for temporary period and on probation basis in view of the fact that one regular employee Ms. Kirtiben was not attending her duty and as a stop-gap arrangement the claimant was engaged for temporary period and on probation basis. It was also claimed that according to the appointment order the probation period of the claimant was upto 30.4.1982. It was also claimed that before completion of the probation period the petitioner trust received intimation from the Government that the appointment of the concerned workman is not approved/sanctioned by the Government in view of the fact that at very initial stage, the appointments of the concerned persons have been made in violation of the prescribed eligibility criteria. According to the Government, both the claimants had crossed the prescribed upper age limit for appointment inasmuch as one of the claimants was 49 years of age and age of the other workman was 54 years when the said workman was appointed and that, therefore, they were not eligible for appointment. According to the Government, both the claimants had crossed the prescribed upper age limit for appointment inasmuch as one of the claimants was 49 years of age and age of the other workman was 54 years when the said workman was appointed and that, therefore, they were not eligible for appointment. The Government did not approve appointments also because the concerned workmen did not possess qualification as per General Circular No. 74 issued in September 1956 and the order dated 3.12.1971 whereunder the qualifications for the post of Cook/Attendant were prescribed. 7. The petitioner trust claimed that in view of the fact that the petitioner trust received the intimation dated 6.3.1982, it was obliged to comply the said direction and that, therefore, when the probation period of the concerned workmen came to an end on 30.4.1982, they were discontinued from service. The petitioner trust also claimed that the services of the claimants were terminated on completion of probation which concluded on 30.4.1982. The petitioner trust submitted that as per the direction from the State Government, since the appointments were subject to confirmation as well as approval by the Government, the appointments on probation were discontinued by the trust for want of approval and that, therefore, the demand against the petitioner trust is unjustified. 8. Ms. Chitaliya, learned AGP for the respondent State contended that though the State Government was not party to the reference proceedings, the petitioner trust has unjustifiably impleaded the State Government though the State Government has no liability or obligation and since it was not party to the original proceedings before the learned Labour Court, the impleadment of respondent No. 2 is unjustified and without any basis or justification. 8.1 Learned AGP further submitted that when the proposal from the petitioner trust was received claiming approval of appointments in respect of the two workmen, the said cases were examined by the Government and it was found that the persons did not fulfill eligibility criteria and therefore, the Government had informed the petitioner trust that it cannot approve/sanction such appointment which was contrary to the rules and prescribed eligibility criteria. Learned AGP also submitted that thereafter it was for the petitioner trust to take necessary and appropriate decision and action in accordance with law and Government's role in the matter ended when the Government intimated that the appointments cannot be approved. Learned AGP also submitted that thereafter it was for the petitioner trust to take necessary and appropriate decision and action in accordance with law and Government's role in the matter ended when the Government intimated that the appointments cannot be approved. It was for the trust to thereafter take necessary and appropriate action in accordance with the law. 9. Mr. Shukla, learned advocate for the petitioner trust submitted that the petitioner trust was informed by the Government that the appointments were not in accordance with the rules and prescribed eligibility criteria and that the appointments cannot be approved and that, therefore, the petitioner trust discontinued the services of the concerned claimants on expiry of the probation period. He submitted that the concerned claimants were appointed for temporary period purely on probation basis and when their services were discontinued on completion of probation period in view of the fact that they did not possess qualifying criteria, the action of the petitioner trust would not amount to retrenchment and therefore, the award by the learned Labour Court is unjustified. 10. Mr. Shah, learned advocate for the workmen submitted that the learned Labour Court has considered all relevant factual and legal aspects and after considering the relevant provisions, viz. Sections 25F and 25G and after considering the evidence on record and also after taking into account that the workmen had worked 240 days, the learned Labour Court passed the award directing the petitioner trust to pay 75% of backwages upto the date which the claimants reached superannuation and the said directions are neither erroneous nor arbitrary and therefore, the award may not be interfered. 11. I have considered the submissions by learned advocates for the contesting parties and I have also considered the material on record and the award as well as appointments orders, intimation to the petitioner trust by the Government. 12. The case of the petitioner trust is short inasmuch as it has claimed that the concerned workmen were appointed on probation and their services were discontinued on completion of probation because the Government did not approve the appointments and that, therefore, there is no justification in the claim by the workmen that their services have been illegally terminated. It is claimed that the termination of services of the workmen on completion of probation would not amount to retrenchment. It is claimed that the termination of services of the workmen on completion of probation would not amount to retrenchment. It is also claimed that the petitioner trust acted upon the intimation from the Government informing the trust that the appointments are not approved because the claimants did not fulfill the prescribed eligibility criteria as regards the upper age limit and educational qualifications. It was claimed that one of the claimants was 49 years of age when she was appointed and the other workman was 54 years of age at the time of appointment and that, therefore, there is no illegality in the action of the petitioner trust. 13. Likewise, the case of the respondent State is also short. In the first instance, it is claimed that though the State Government was not party to the reference proceedings, the petitioner trust has wrongly impleaded the State Government, more particularly when the Government was not party to the original proceedings of the reference cases. The said contention is justified and cannot be discarded. In view of the fact that the State Government was not party to the reference cases, it could not have been impleaded in the present proceeding as necessary and proper party. It is alleged that the petitioner has impleaded the State Government as party respondent only with a view to building pressure to agree to pay/reimburse the amount of backwages which are directed to be paid to the concerned workmen. The Government's objection is justified. It is not necessary party. 14. Further case of the State Government is also justified inasmuch as the State Government claims that it had merely intimated the petitioner trust that the appointments cannot be approved/sanctioned because the appointees do not fulfill the prescribed criteria. According to the State Government, thereafter it was for the petitioner trust to take appropriate action in accordance with law and if the petitioner trust failed to act in accordance with law, then it is problem of the petitioner trust which cannot be transferred to the State Government. The said contention is also justified and cannot be discarded. 15. According to the State Government, thereafter it was for the petitioner trust to take appropriate action in accordance with law and if the petitioner trust failed to act in accordance with law, then it is problem of the petitioner trust which cannot be transferred to the State Government. The said contention is also justified and cannot be discarded. 15. So far as the workmen are concerned, they have based their claim on the fact that they had worked for 12 months and had worked for 240 days and that, therefore, the petitioner trust was obliged to follow procedure prescribed by Section 25F of the Act, whereas their services were terminated without complying the condition under Section 25F of the Act and that, therefore, there is no error in the direction by the learned Labour Court. 16. Before proceeding further, it is necessary to mention that it is an undisputed position of fact that the concerned workmen crossed age of superannuation during pendency of the reference cases. Besides this, during hearing of present petitions, learned advocates for the concerned claimants and the petitioner trust submitted that both the claimants have died during the pendency of the litigation and heirs/legal representatives have been impleaded. 17. The above discussed facts have brought out three undisputed facts, viz. (a) at the time of initial appointment itself, the claimants had crossed upper age limit prescribed for eligibility and that, therefore, their appointments were in violation of prescribed eligibility criteria. It is an undisputed that one of the claimants was 40 years of age at the time of appointment and another claimant was 54 years of age at the time of appointment. 18. Thus, the appointment at the threshold was illegal and contrary to the eligibility criteria prescribed under applicable rules. 19. Besides this, the concerned claimants did not possess prescribed educational qualifications as well. (c) According the terms and conditions of the appointment order, the claimants were appointed on probation and their services were discontinued on completion of the probation period. 20. The award passed by the learned Labour Court has to be examined in light of the said facts. 21. When the said aspects and observations by the learned Labour Court in the impugned award are taken into account, it comes out that while holding that the petitioner trust's action is illegal. 20. The award passed by the learned Labour Court has to be examined in light of the said facts. 21. When the said aspects and observations by the learned Labour Court in the impugned award are taken into account, it comes out that while holding that the petitioner trust's action is illegal. The learned Labour Court unfortunately lost sight of the fact that (a) the appointments were, from initial stage and inherently illegal; and (b) the appointees were ineligible as per eligibility criterion and they also did not possess educational qualifications and thereby the appointments were in contravention of the prescribed rules; and (c) the appointments, from initial stage were subject to Government's approval and the appointees were informal about said condition and they were aware about said condition since the date of appointment, and their services came to an end for want of Government's approval and; (d) at the relevant time the appointees were still on probation. For all these reasons termination of such appointment and that too at the end of probation period would not attract the provision under section 25F of the Act. 22. Unfortunately, the learned Labour Court failed to consider above mentioned aspects and therefore, the impugned award does not deserve to be and cannot be sustained and the award deserves to be set aside. 23. At this stage, learned advocate for the claimants submitted that the heirs of the deceased claimants intend to submit a representation to the petitioner trust for appropriate payment at least on ex gratia basis having regard to the fact that the claimants had worked with the trust and now both the claimants have died. 24. In view of the said submission by learned advocate for the concerned claimants and in view of foregoing reasons and in the light of the above discussion, following order is passed. 25. The impugned awards in respect of two claimants are not sustainable and therefore, the awards are set aside. The petitions being Special Civil Application Nos. 7361/2004 and 7362/2004 are allowed. Rule is made absolute to the aforesaid extent. The petitions being Special Civil Application Nos. 10696/2004 and 10697/2004 are rejected. 26. 25. The impugned awards in respect of two claimants are not sustainable and therefore, the awards are set aside. The petitions being Special Civil Application Nos. 7361/2004 and 7362/2004 are allowed. Rule is made absolute to the aforesaid extent. The petitions being Special Civil Application Nos. 10696/2004 and 10697/2004 are rejected. 26. It is, however, clarified that the heirs of two claimants may submit a representation to the petitioner trust within four weeks from the receipt of the certified copy of this judgment and with a request to the petitioner trust for ex gratia payment in light of the observations by the learned Labour Court in the impugned award. 27. The petitioner trust will consider the said representation sympathetically and in view of the fact that both the claimants have died during the pendency of the litigation. 28. It is hoped that the petitioner trust will consider the representation in right spirit and as expeditiously as possible and take appropriate decision preferably within four weeks from the date of receipt of the representation. The petitioner trust will consider the representation and also in light of the fact that the payment would be ex gratia and it would not be treated or cited as precedent in any case. Orders accordingly.