Court No. - 34
Case :- WRIT - A No. - 18215 of 2018 Petitioner :- Babu Ram Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Samir Sharma Counsel for Respondent :- C.S.C.,Ravi Prakash Singh,Sunil Kumar Misra
Hon'ble Yashwant Varma,J.
Heard Sri Sameer Sharma learned Senior Counsel in support of the petition, Sri Sunil Kumar Mishra who appears for the respondent Nos. 1 to 7 and the learned Standing Counsel for the State respondents. Pursuant to the directions issued by the Court, notices had been issued to respondent Nos. 8 to 10. However, none has appeared on their behalf. In any case their presence before the Court ceases to be necessary in light of the submission of Sri Sharma that the petitioner is not claiming any benefits of seniority nor is he claiming the removal of their names of from the list of Apprentice Conductors who were ultimately absorbed.
The essential facts which may be noticed for the purposes of disposal of the present writ petition are as follows.
The petitioner completed his apprentice training in the trade of Cashier under the respondents in 1985-86. Although he sought appointment in the Corporation on the post of Cashier cum Clerk, the same was not acceded to. The issue of trained apprentices working in the respondent Corporation travelled up to the Supreme Court in the matter of U.P. Parivahan Nigam [J.T. 1995 (2) 26 (SC)] which batch was disposed of with the Court framing the following guidelines: -
“12. In the background of what has been noted above, we state that the following would be kept in mind while dealing with the claim of trainees to get employment after successful completion of their training:
(1) Other things being equal, a trained apprentice should be given preference over direct recruits.
(2) For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India v. N. Hargopal would permit this.
(3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the service rule concerned. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given.
(4) The training institute concerned would maintain a list of the persons trained yearwise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior.”
Although the Corporation thereafter initiated a recruitment process for appointment of conductors on different occasions, admittedly no recruitment could be completed till 2005. In the meanwhile, the petitioner in 2003 came to be appointed as a contract conductor under the respondents. In 2005, the Corporation initiated a process of recruitment which entailed the appointment of 1500 conductors in the first phase. That advertisement came to be assailed in Vijay Shankar Sharma & others Vs. State of U.P. [Writ Petition No. 16154 of 2005]. Those proceedings were initiated by trained apprentices and contract conductors working in the Corporation claiming weightage as extended to various other categories of employees working under the respondents. The aforesaid petition was partly allowed with the Corporation being commanded to accord weightage to trained apprentices and contract conductors. Pursuant to the judgment rendered a corrigendum came to be issued by the Corporation which too came to be challenged in a writ petition in which an interim order came to be passed. In view of the aforesaid, the recruitment did not progress further.
A subsequent advertisement issued in 2006 thereafter again became subject matter of litigation before this Court. The Corporation was in those proceedings called upon to disclose the criteria that it proposed to adopt insofar as trained apprentices and contract conductors were concerned. The High Court was informed that 35% of the vacancies existing in the cadre of conductors would stand reserved in favour of trained apprentices and contract conductors. On the aforesaid statement being made, the writ petitions pending before the Court came to be dismissed as infructuous. The decision to set apart 35% of the vacancies in the cadre of conductors in favour of trained apprentices and contract conductors was reiterated by the Board of the Corporation in its resolution passed on 29 January 2003. The salient conditions which were stipulated by the Board in the aforesaid resolution and as set forth in the writ petition were as under: -
“(ii). Only after appointment of trained apprentices on the aforesaid posts, the case of contract conductors would be considered.
(iii). Those candidates having a continuous service of more than 5 years, would be placed on the merit in accordance with their period of service.
(iv). The date of birth of the candidate would be the criteria for placing a candidate on the merit list, in case names of two or more candidates found at the same place in the merit list.
(v). The provisions relating to reservation would be adhered to.
(vi). In case the requisite candidates are not available according to the reservation policy, the vacancies would be filled up from by way of outside candidates.
(vii). The trained apprentices/contract conductors would be given age relaxation on the basis of their service period.”
The process of recruitment which commenced thereafter came to be challenged yet again in Jageshwar Singh & others Vs. State of U.P. [Writ Petition No. 45202 of 2013]. That writ petition and other connected matters came to be disposed of in the following terms: -
“In the result, except Writ Petition No. 3093 of 2016 (Dinesh Kumar and others Vs. State of U.P. and others), which stands dismissed all other writ petitions succeeds and are allowed with the following observations and directions:-
1. The cut-off-date 1.1.2013 may remain but counting five years of continuous service backward from 1.1.2013 is not sustainable in the eye of law in so far as the petitioners are concerned and their continuous service of five years as required, shall be counted from the date of their initial appointment / engagement.
2. The petitioners are entitled for age relaxation as on 1.1.2013 as per their actual period of working / working experience ignoring artificial break in service.
3. The seniority / merit list of the petitioners shall be prepared at the Head Office Level and not at Regional Level and a centralized selection process shall be undertaken by the Corporation.
4. The respondent-corporation are directed to complete selection proceedings in regard to 35% reserved posts of regular conductors from the petitioners giving preference over and above contract candidates engaged in the Corporation through private agency. It is needless to add that the Corporation shall act in the spirit of the earlier judgments passed by Hon'ble Apex Court and by this Court keeping in view the observations made thereunder. It is also expected that the Corporation shall carry out necessary selection proceedings at the earliest preferably within a period of six months.
Writ petitions are accordingly allowed with the observations as made above except Writ Petition No. 3093 of 2016 (Dinesh Kumar and Others v. State of U.P. and others), which stands dismissed. No order as to costs.”
Pursuant to the directions issued by the Court in Jageshwar Singh, the respondents called upon their Regional offices to collate a list of all trained apprentices and contract conductors working under them. These reports were called for in terms of a communication dated 22 August 2016. Based upon the inputs and data which the Corporation received, a provisional list of trained apprentices and contract conductors was drawn up and published on 18 January 2017. The petitioner was shown as a contract conductor in this list with the respondents failing to acknowledge the apprentice training certificate which was held by him. The petitioner is stated to have submitted a representation dated 23 January 2017 against the aforesaid provisional list before the Regional Manager appending his apprenticeship certificate thereto. However, the list was finalised and published on 12 May 2017 with the position of the petitioner remaining unchanged.
In the final list which was published, Serial Nos. 1 to 892 carried the names of those who fell in the category of “Paid Apprentices working as contract conductors”. Serial No. 893 onwards displayed the names of those who were shown to be working as “Contract Conductors”. The petitioner’s name found place at Serial No. 978 of this list.
The solitary bone of contention inter partes is whether the respondents were justified in treating the petitioner as a contract conductor and not extending to him the benefits of the apprentice training certificate which was held by him. As noticed above the main grievance of the petitioner is of him having not been enlisted along with other paid apprentices working as contract conductors.
Before the Court Sri Sharma contends that the petitioner had duly submitted the apprenticeship training certificate before the respondents and consequently it was incumbent upon them to place the petitioner alongwith all others who were entitled to be absorbed against 35% quota earmarked and in the category of paid apprentices working as contract conductors. Sri Sharma further draws the attention of the Court to the objections of 23 January 2017 appended at page 88 of the writ petition to submit that even though those objections were duly submitted pursuant to the provisional list which was published on 18 January 2017, no heed was paid to the same. It is further contended that in case the apprenticeship qualification of the petitioner had been taken into consideration, he would have come to be placed at serial No. 186 of the combined final list which was published and that his claim for absorption as flowing from the judgment of Jageshwar Singh has been wrongly denied.
Sri Misra learned counsel appearing for the Corporation on the other hand contends that the petitioner never disputed the factum of his engagement as a contract conductor. In view of the aforesaid it was submitted that merely because he held an apprenticeship training certificate, no benefits can be claimed by the petitioner. It was further contended that the petitioner was obliged to establish before the Corporation that he had successfully completed the apprenticeship training course and only then could he have claimed a right of absorption. Sri Mishra contends that the petitioner did not furnish testimonials as were required and consequently no relief is liable to be granted.
Having noticed the rival submissions, it may only be stated that the respondents duly disclose that a provisional list was published on 18 January 2017. When the petitioner found that his name was not shown alongwith other contract conductors who held the apprenticeship training certificate, he is stated to have submitted a representation on 23 January 2017. That representation stands placed on the record as Annexure-8 to the writ petition. The filing of that representation and the enclosures which were appended with it is a fact which the respondents have failed to controvert. It is not their case that the apprenticeship training certificate stated to have been appended alongwith the representation of 23 January 2017 was not produced before them. All that has been stated in the counter affidavit is that although the petitioner had ample opportunity to file objections against the provisional list, that liberty was not availed of. The Court finds itself unable to sustain the aforesaid objection since the record itself reflects that the apprenticeship certificate was duly produced before the respondents under the cover of the letter of 23 January 2017. Once that had been done, it was incumbent upon the Corporation to place the petitioner in the category of paid apprentices working as contractual conductors holding the requisite qualification and thus entitled to be considered for absorption against the 35% quota earmarked for that category.
It becomes pertinent to note that Shri Mishra learned counsel appearing for the respondents does not dispute that in view of the apprentice certificate held by the petitioner, he was entitled to be classified and placed in the category of paid apprentices working as contract conductors. That the said certificate was duly brought to the notice of the respondent after the provisional list was published also could not be controverted. The petitioner cannot be penalized for a failure on the part of the respondents to acknowledge the fact that the petitioner did hold the apprentice certificate as required. The record further reflects that the petitioner completed his apprentice training under the respondent themselves. Even this factual assertion is not disputed by the respondents. In light of the above, the Court finds in favour of the petitioner and holds that the action of the Corporation in failing to provide a regular appointment to the petitioner cannot be sustained.
In view of the aforesaid, the writ petition is allowed. The respondent-Corporation shall now proceed to adjudge the consequential benefits which are liable to be accorded to the petitioner pursuant to the right of regular appointment being claimed with effect from 12 May 2017 bearing in mind the observations made hereinabove. The Court also takes on board the statement of Sri Sharma that no reliefs adverse to the interests of respondent Nos. 8 to 10 are claimed by the petitioner here.
Order Date :- 24.8.2021 faraz (Yashwant Varma, J.)