Petitioners who are eight in number claim that they have passed intermediate examination and had appeared in I.T.I. and after completion of course obtained certificate from National Industrial Training Board. After completion of I.T.I., the petitioners were sent for apprentice training for a period of two years at different periods. The training was undertaken under the Apprentices Act, 1961 in the respondent units in their various divisions and after training they were issued certificate.
The petitioners have approached this Court seeking a writ of mandamus commanding the respondents to consider their appointment in the department as well as reinstate the persons who are trained as per the Government Order.
The contention of learned counsel for the petitioners is that the respondent no. 1, U.P. Power Corporation Ltd. issued order dated 11.05.2009 wherein it has been stated that all persons who have taken training under the Apprentices Act, 1961 be given preference in appointment on contract basis. Similar orders was issued on 24.04.2010. Petitioners claim appointment on the basis of the said Order without facing selection process.
In rebuttal, the respondents state that no legal right for appointment accrue to such persons who have obtained training under the Apprentices Act, 1961. However, certain relaxation in upper age limit by two years is given and in case, the merit and other conditions are same, preference will be given to the candidates who have obtained training. The department is giving preference to such apprentice trainees as per the Government Order and Circulars issued by the Corporation.
Heard learned counsel for the parties.
On rival submissions, the only point for determination is as to whether the persons who have obtained training under Apprentice Act, 1961 have legal right for appointment in the department imparting training without taking the written examination or facing selection process.
The contention of learned counsel for the petitioners that the respondents be directed to appoint the petitioners in the light of the various judgments of this Court without facing selection process, is wholly misconceived. The Government Orders and Circulars issued time to time no where requires that the petitioners can be appointed without facing the selection process including taking written examination. It only requires that persons who have obtained apprentice training shall be given preference in case of appointment over other candidates in case other conditions are same and they will have to undergo the written test and must fulfill other conditions for appointment. Section 22 of the Apprentices Act states that it shall not be obligatory on the part of the employer to offer any employment to any apprentice trainee who has completed the period of his apprenticeship training in the establishment unless there be a condition in the contract to the contrary. The model contract form finding place in Schedule (VI) of the Rules reflects what has been stated in Section 22(1). The Hon'ble Supreme Court in U.P. State Road Transport Corporation and other Versus U.P. Parivahan Nigam Shikshuk Berojgar Sangh, AIR 1995 SC 1115, laid down certain guidelines which should be kept in mind while dealing with the claim of trainees in the department. The paragraph 12 of the aforesaid judgment is reproduced:-
"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."
Learned counsel for the petitioner relied upon the observations of Hon'ble Supreme Court contained in paragraph no. 13 of U.P. State Road Transport Corporation (supra) for appointment without going through the selection process.
The Hon'ble Supreme Court observed that while considering the cases of trainee for giving employment on suitable post would not be required to appear in written examination, if any, provided in the Regulations. This observation was confined to the facts of the case at hand and was a direction under Article 142 and not under Article 141 of the Constitution of India.
The Division Bench of this Court in Manoj Kumar Mishra versus State of U.P. And others, rejected a similar claim. In paragraph 3 of the aforesaid judgment, the issue before the Court was:-
3. " The principal question which requires consideration is, whether an apprentice, who has successfully completed apprenticeship training under the Apprentices Act, gets a right to be appointed on a post straight away without appearing in any competitive examination or test through which selection is made for making appointment on the said post under the relevant service rules or Government Order."
After considering the provisions of the Act as well as the judgments including the Apex Court's judgment in U.P. State Road Transport Corporation (supra), the Division Bench clarified that there was no settled direction that the apprentice would bye-pass the selection process including written examination. Paragraph 6 of the aforesaid judgment is reproduced:-
6. "The claim of the petitioners that they are not required to appear in any competitive examination or test which is held for making selection on the post on which they want to be appointed, cannot be sustained as no such direction has been given by Supreme Court. If the relevant service rules or Government orders issued in this regard provide for holding of a competitive examination or test, the petitioners have to appear in the said examination or test and compete with other candidates. The Apex Court has nowhere ruled that the relevant provisions for holding an examination for making selection with regard to direct recruits is ultra vires or the same would not apply to a person who has completed apprenticeship training. In fact the very first direction which provides that other things being equal, a trained apprentice should be given preference to other direct recruits, shows that he has to appear in the competitive examination or test otherwise his comparative merit cannot be judged. Learned counsel for the petitioners has however placed reliance on two decisions namely Mohd. Waseem v. State 1996 (14) LCD 82 and in writ petition No. 1489 of 1991 (Bhartiya Mazdoor Sangh v. I.T.I. Ltd.) decided on 4.7.1996 wherein a direction has been issued to consider the case of the petitioners in the light of the aforesaid observations made by the Supreme Court and a further direction has been issued that they will not be required to appear in any written examination if any, provided under the Rules governing the conditions of service of regular employees. With profound respects and utmost humility, I am unable to agree with the aforesaid direction of the learned Single Judge that the petitioners would not be required to appear in any examination. A careful reading of the judgment of the Supreme Court would show that no such observation was made while dealing with the claim of trainees to get employment. No doubt there is such an observation in para 13 of the reports but that paragraph specifically dealt with the cases in which U.P. State Road Transport Corporation had preferred appeals against the judgment dated 6.10.89 of Allahabad High Court."
The Division Bench rejected the prayer of the petitioners that they should not be required to appear in the examination. The Full Bench decision of this Court in Arvind Gautam Versus State of U.P. and others, 1999(17) LCD 1126, considered as to whether an apprentice is not required to take a competitive test. Rejecting the case of the apprentice, the Full Bench was of the view that competitive examination has not been exempted by the Supreme Court's judgment in U.P. State Road Transport Corporation (supra). Paragraph 6 and 9 of Arvind Gautam's case (supra) is reproduced:-
"6. In our view, the expression "other things being equal" in paragraph 12 and absence of exemption from competitive test in the said paragraph, leads to the conclusion that all persons (including the apprentices) have to appear in the competitive test, as may be prescribed in respect of the particular selection, and if after the competitive test, any apprentice trainee gets equal marks than a non-apprentice candidate, then only preference is to be given to the said apprentice trainee."
9. Hence, the answer to question No. 1 is that the directives of the aforesaid judgment of the Supreme Court as contained in paragraph 12 of the said judgment in the case of U. P. State Road Transport Corporation V, U. P. Parivahan Nigam Shishuksha Berozgar Sangh (supra) is not confined to U.P.S.R.T.C. alone but they are applicable to all departments and corporations, but the directives in paragraph 13 of the said judgment apply strictly to the persons whose cases came up for consideration before the Apex Court in the said matter, and not to others."
In view of the law stated herein above, the trained apprentice do not have legal right to claim appointment in the Department/Organization imparting training under the Apprentice Act, 1961, and all conditions including written examination has to be taken by such trainees as per service rules, regular in order to be appointed.
The writ petition is devoid of merit and is accordingly dismissed.
Order Date :- 26.02.2014 kkm/