Gujarat High Court
Bhanubhai Khanabhai Rohit vs Chief Engineer on 3 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12856/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12856 of 2015
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BHANUBHAI KHANABHAI ROHIT
Versus
CHIEF ENGINEER
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Appearance:
MR JV JAPEE(358) for the PETITIONER(s) No. 1
MR DIPAK R DAVE(1232) for the RESPONDENT(s) No. 2
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 03/04/2018
ORAL ORDER
1. Heard Mr.Japee, learned advocate for the petitioner and Mr.Dave, learned advocate for the respondent electricity company.
2. In present petition, the petitioner has prayed, inter alia, that:
"8(a) YOUR LORDSHIPS be pleased to issue the writ of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondents to consider the case of the Petitioner for giving appointment as helper as the person junior to the Petitioner in the seniority list of apprentice welders is given appointment from 25.07.2011.
(b) YOUR LORDSHIPS be pleased to direct the respondents to forthwith consider the case of the Petitioner for appointment to the post of helper, pending admission, hearing and final disposal of this petition."
3. So far as factual backdrop is concerned, it has emerged that while pursuing the course in 1 C/SCA/12856/2015 ORDER trade of welder in ITI, the petitioner had undergone training as Apprentice with the respondent company.
3.1 According to the petitioner, he completed the training as Apprentice with the respondent company on 5.4.1997, as part of his course / curriculum in ITI (in trade of welder). 3.2 The petitioner claims that the respondent company maintains data bank of the persons who undergo training as Apprentice, as part of the ITI course, with the respondent company and when vacancy arises, the company grants appointments to the persons from the said list / data bank maintained by the respondent company. 3.3 According to the petitioner, his name appeared at Sr.No.91 in the said list / data bank maintained by the respondent company. 3.4 The petitioner claims that he expected to be appointed as an employee with the respondent company since he had completed apprenticeship 2 C/SCA/12856/2015 ORDER training with the respondent company while he was pursuing the ITI course in trade of welder and also because his name was maintained at Sr.No.91 in the list / data bank maintained by the respondent company.
4. Before proceeding further, it is relevant and appropriate to note that merely because a student pursuing course with an ITI passes through training as Apprentice, he does not acquire any right to seek appointment with such industrial establishment where he has undergone training as an Apprentice.
4.1 Any statutory obligation is not imposed on the industrial establishment to grant appointment to such Trainees / Apprenticees from ITI who merely undergo, for some period, training as Apprentice, as part of their course / curriculum while pursuing the studies with an ITI.
5. Despite such position, the petitioner has taken out present petition as if he, by 3 C/SCA/12856/2015 ORDER undergoing training as Apprentice with the respondent company, acquired right to get appointment with the respondent company. 5.1 The petitioner has raised above quoted claim as if the respondent company is under legal / statutory obligation to grant appointment to trainees / apprentees who, for some period, undergo the process of training as an apprentice as part of the course.
6. It appears that somewhere in June 2011, the petitioner was called by the respondent company with original documents.
6.1 At that time, several other persons who had also undergone training as apprentice, like present petitioner, the petitioner was also called by the respondent company. 6.2 It appears that in 2011 the respondent company granted appointment to one Mr.B.S. Solanki who had also undergone training as an Apprentice like the petitioner with the 4 C/SCA/12856/2015 ORDER respondent company.
6.3 With reference to the said appointment to Mr.Solanki, the petitioner has alleged that in 2011 name of said Mr.Solanki had appeared at Sr.No.95 in the list / data bank of the respondent company, whereas the name of the petitioner had appeared at Sr.No.91. 6.4 On the strength of the said details, the petitioner claims that he should be considered senior to said Mr.Solanki and that, therefore, the respondent should not have granted appointment to Mr.Solanki but appointment should have been granted to him.
7. Before proceeding further, it is appropriate to mention that the petitioner as well as said Mr.Solanki belong to SC category.
8. For almost 4 years after the respondent company granted appointment to said Mr.Solanki, the petitioner did not take any action. 5 C/SCA/12856/2015 ORDER 8.1 Subsequently, the petitioner initiated present proceeding in July 2015.
8.2 In this backdrop, the petitioner has prayed for above quoted relief.
9. The respondent has opposed the petition. Industrial Relations Officer (Incharge) has filed affidavit dated 4.4.2016. In the said affidavitinreply, the respondent company has averred and stated that:
"5. It is submitted that as a well settled law the apprentice has no right to get appointment as a matter of right It is submitted that as held by the hon' ble supreme court of India. an apprentice cannot claim the appointment as a matter of right. It is submitted that earlier as per the practice of then GEB data bank was prepared of a person who has successfully completed apprentice training and has passed NCVT examination. The candidate would be offered appointment as and when vacancy arise in the company. In case there is no vacancy available the candidate cannot claim appointment as a matter of right For the purpose of getting appointment candidate will have to fulfill several criteria led down by then board and thereafter company. One of the criteria was with regard to the age limit. In case a candidate belongs to general category and completes age of 35 years, his name will be deleted from the data bank and he will not be entitled to get appointment In case of reserve category candidates the said age limit is up to 40 years These rules of the company are applicable to all the candidates of the company. It is not even the case of the petitioner that any particular rule of the company has been wrongly made applicable to him. It is submitted that when the vacancy of Helper arose in the year 2011 the procedure for fillingup the post was carried out from the list available from Data Bank of Apprentice and accordingly Office Note dated 14/07/2011 1 was processed for filling up 17 vacancies which were to be filled in by 02 ST, 01 SEBC and 14 UR category Accordingly the candidates who were in the seniority of data bank were called for verifications of their documents. On receipt of the documents list of candidates had been prepared, Shri Rohit had also his documents. On submitted verification of the School Leaving Certificate his birth date was recorded a s 17/02/1974."6 C/SCA/12856/2015 ORDER
9.1 Besides the said details, the respondent company has also averred and stated that:
"4. It is submitted that the petitioner completed the successfully had under Training Apprentice Apprenticeship Act at Wana kbo ri TPS in the trade of Welder on 05/04/1997 Schedule caste He belongs to category. It is submitted that name of the petitioner was there in the seniority of data bank of Apprentice at Sr. No. 91 as per AnnexureA. Further, Shri D. S. Solanki who was junior to him whose name stands at Sr. No. 95 in the seniority list at AnnexureA, also belongs to S. C. category.
6. When the vacancy was required to be filled in by the respondent No. 1, the office Note dated 14 /07/2011 was put up showing the details of number of vacancies and roster position Since the vacant post were required to be filled in by 02 ST 01 SEBC and 14 UR category candidates Shri Rohit was to be considered for appointment against UR vacancy It is pertinent to note here that Shri Rohit had crossed 35 years of age as the cut off birth date for General category was to be considered as 01/06/1976 considering 35 years of age as on 01.06.2011, the date on which permission was granted by corporate office dated 04.06.2011. It is pertinent to note that for the general category candidate 35 years of age is the maximum age limit as per the Rules of Gujarat State Electricity Corporation Limited.
7. Whereas Shri D. S. Solanki was junior to Shri Rohit as he stands at Sr No. 95 in the data bank but considering the cuttoff birth date i e 01/06/1976 Shri Solanki did not cross 35 years of age. Therefore Shri Rohit was not considered for appointment for Vidhyut Sahayak Helper and the next available eligible candidate general category Shri D. S Solanki had been given an appointment as Vidhyut Saha yak (Helper) a s he was below the age of 35 years.
8. The petitioner had successfully completed the Training of Apprentice on 05/04/1997. It is also true that the father of pe tioner, whose land the given was acquired, was given the appointment by the respondent. The benefit of employment to the land looser had been given at the relevant time. Therefore question does not arise to consider his case for second time.
9. It is submitted that the petitioner made his representation and in petitioner's representation, petitioner was informed with regard to the guidelines of GUVNL a s also the exam for appointment of Vidhyut Sahayak (Helper) to be considered in accordance with Rules."
10. From the details mentioned by the respondent company in the said reply affidavit, it comes out that the case of said Mr.Solanki was considered in altogether different factual backdrop. 7 C/SCA/12856/2015 ORDER 10.1 Two substantial and major distinguishing facts have been mentioned by the respondent company to demonstrate that there is no illegality or arbitrariness in granting appointment to Mr.Solanki.
10.2 One of the reasons which is assigned by the respondent company for not granting appointment to the petitioner, is that by the time the respondent company reached to Sr.No.91 of the list / data bank, the petitioner had already crossed maximum / upper age limit for appointment as Helper (Vidhyut Sahayak) and that, therefore, the petitioner was not eligible for appointment and his case could not have been considered. 10.3 The second reason which is assigned by the respondent company, is that the case of Mr.Solanki came to be considered in General category.
10.4 In the said category, said Mr.Solanki was found more meritorious than the petitioner. 8 C/SCA/12856/2015 ORDER
11. In light of the justification and explanation offered by the respondent company with regard to the appointment of Apprentice, it becomes clear that the petitioner's grievance based on the ground that though Mr.Solanki, who was junior to him as per the list / data bank maintained by the respondent company, came to be appointed, his case for appointment is strengthened and the respondent company should be directed to grant him appointment, is unjustified and not sustainable.
12. It appears that after the petitioner considered the reply affidavit and the explanation offered by the respondent company, the petitioner realised that his claim on the strength of the allegation that the respondent committed irregularity in granting appointment to Mr.Solanki instead of appointing him, has no basis and he cannot substantiate as claimed on the said allegation, the petitioner changed the gears and for the first time, by means of 9 C/SCA/12856/2015 ORDER rejoinder affidavit, the petitioner invoked GSO
295.
13. The petitioner, by way of rejoinder, came out with a new case in rejoinder affidavit and claimed that in view of GSO 295, the petitioner should be granted appointment and for that purpose, the respondent company should relax the upper age limit because according to clause 9 of GSO 295, dependent children of retired employee are eligible for preference over other applicants and they are also eligible for relaxation of age.
14. Since the petitioner has, as mentioned above, for the first time, taken recourse to GSO 295, as such, the said submission does not deserve to be entertained and can be rejected only on the ground that the petition is not based on the said provision under GSO.
14.1 However, the Court considers it appropriate to deal with the said contention also because learned advocate for the petitioner has consumed 10 C/SCA/12856/2015 ORDER at least 20 minutes of Court's time to justify claim based on the said GSO 295.
15. The relevant provision on which the petitioner placed reliance, viz. clause 9 of GSO 295, reads thus:
"9. EMPLOYMENT OF DEPENDENTS:
1. In case of deceased employees. In case an employee dies during service in the Board, one dependant (child or spouse) would be employed by the Board on any vacant post for which such dependant holds the necessary qualification / experience.
This benefit would not be available in cases where one or more members of the family of the deceased employees is/are already employed within or outside the Board.
2. In case of retired employees. Dependant children of retired employees who apply for posts advertised by the Board, will be given preference over other applicants having equal qualifications / experience.
This benefit would not be available in cases where one or more members of the family of the deceased employee is/are already employed within or outside the Board. In both the above cases of recruitment, in relaxation of the maximum age prescribed, the maximum age limit would be considered to be 40 years of age."
EXPLANATION:
Family member means a child only.
Such appointments will be made with the prior approval of the Head Office."
15.1 The first requirement which the said clause 9 of GSO 295 postulates, is that the said benefit is available to 'dependent children' of retired employee.
15.2 The second condition / requirement which the 11 C/SCA/12856/2015 ORDER said clause 9 of GSO 295 postulates, is that the person who wants to avail benefit of said clause 9 of GSO 295, should have applied for the posts advertised by the Board.
15.3 In present case, it has emerged that until the petitioner reached the maximum age limit (after taking into account the relaxation contemplated under clause 9 of GSO 295) the petitioner had never submitted any application for any post.
15.4 In absence of any application by the petitioner, his case, even otherwise, could not have been considered. Thus, only on this ground, the petitioner's claim cannot be sustained.
15.5 Not only this, but the petitioner's case, in absence of any application by him for any post, would not even fall within purview of clause 9 of GSO 295 because para 2 of clause 9 of GSO 295 contemplates that 'dependent children' of retired employee 'who applied for post' advertised by the 12 C/SCA/12856/2015 ORDER Board, will be given preference over other applicants.
15.6 Meaning thereby a person who wants to avail benefit of said clause 9 of GSO 295 must be (a) a dependent of retired employee; (b) he/she must have applied for the post advertised by the Board; (c) such person would be eligible only for preference over other applicant, and not for appointment.
15.7 The said clause 9 of GSO 295 further provides that in case where the person fulfills the conditions prescribed under para 2 of clause 9, then relaxation in maximum age will be granted upto 40 years of age.
15.8 Thus, fourth requirement contemplated by clause 9 is that the person who seeks to avail benefit of clause 9 should not have crossed 40 years of age at the time when he submits the application in respect of the post advertised by the Board.13 C/SCA/12856/2015 ORDER
16. In present case, it is an undisputed position that until the petitioner crossed 40 years of age, he had never submitted any application to the Board.
16.1 Therefore, the petitioner is not eligible to invoke the said clause 9 of GSO 295 and his case does not fall within purview of clause 9.
16.2 Besides this, it would not be out of place to note that according to the facts declared by the petitioner, his father retired from service with the respondent company in 2004. The petitioner's father was granted appointment as landloser. Even before the petitioner's father retired, the petitioner was maintaining his own family comprising wife and one son and two daughters.
16.3 In this view of the matter, it is not possible to consider the petitioner as dependent of the retired employee.14 C/SCA/12856/2015 ORDER
16.4 Even if the petitioner is considered dependent on his father (i.e. retired employee), then also, for the reasons mentioned above, the petitioner's case does not fall within purview of clause 9 of GSO 295. Consequently, the petitioner's claim based on GSO 295 is misconceived and deserves to be rejected.
17. Thus, on both counts, the petition fails.
18. At this stage, it is relevant to note that the petitioner's father retired from service with the respondent company in 2008.
18.1 For 7 years, the petitioner did not do anything and in 2015 the petitioner filed present petition.
18.2 When the petitioner filed the petition, he did not take recourse under GSO 295 and for the first time he invoked said GSO 295 by means of rejoinder affidavit.
18.3 Further, the respondent company appointed 15 C/SCA/12856/2015 ORDER said Mr.Solanki in July 2011.
18.4 Even at that stage, for almost 4 years, until July 2015, the petitioner did not take any action.
19. Above mentioned reasons are not only additional reasons which demonstrate that the petition does not deserve to be entertained but the said facts bring out that the petitioner has actually resorted to abuse of process of law.
For the reasons mentioned above, the petition stands rejected. Notice is discharged.
(K.M.THAKER, J) Bharat 16