Allahabad High Court
The U.O.I. Thru Secretary M.O.D. New ... vs Central Administrative Tribunal ... on 8 December, 2022
Author: Rajendra Kumar-Iv
Bench: Surya Prakash Kesarwani, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgment reserved on 29.11.2022) (Judgment delivered on 08.12.2022) Court No. - 03 1. Case :- WRIT - A No. - 11776 of 2017 Petitioner :- The U.O.I. Thru Secretary M.O.D. New Delhi And Another Respondent :- Central Administrative Tribunal Allahabad And Another Counsel for Petitioner :- Shekhar Kumar Yadav,Krishna Agarawal Counsel for Respondent :- Shyamal Narain With 2. Case :- WRIT - A No. - 4315 of 2017 Petitioner :- Union Of India Trhu Secretary M.O.D. New Delhi And 7 Others Respondent :- Central Administrative Tribunal Allahabad And 19 Others Counsel for Petitioner :- Shekhar Kumar Yadav,Ashok Mehta,Harshita Rani Counsel for Respondent :- Shahid Ali Siddiqui, Shyamal Narain With 3. Case :- WRIT - A No. - 9563 of 2017 Petitioner :- The U.O.I.Thru Secretary M.O.D New Delhi And 5 Others Respondent :- Aditya Kumar Counsel for Petitioner :- Krishna Agarawal With 4. Case :- WRIT - A No. - 10250 of 2017 Petitioner :- Union Of India Thru Secretary Of M.O.D. New Delhi And 3 Ors. Respondent :- Central Administrative Tribunal Allahabad And Another Counsel for Petitioner :- Shekhar Kumar Yadav,Ashjok Mehta,Harshita Rani,Lal Mani Singh Counsel for Respondent :- S. Narayan,Shyamal Narayan With 5. Case :- WRIT - A No. - 11792 of 2017 Petitioner :- Union Of India Thru Secretary M.O.D. New Delhi And 3 Others Respondent :- Central Administrative Tribunal Allahabad And 7 Others Counsel for Petitioner :- Shekhar Kumar Yadav,Harshita Rani Counsel for Respondent :- Shyamal Narain,Siddharth Khare With 6. Case :- WRIT - A No. - 17851 of 2017 Petitioner :- Union Of India And 3 Ors. Respondent :- Central Administrative Tribunal And 4 Ors. Counsel for Petitioner :- Shekhar Kumar Yadav,Harshita Rani Counsel for Respondent :- Shahid Ali Siddiqui Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Rajendra Kumar-IV,J.
(Per: Surya Prakash Kesarwani, J.)
1. Heard Sri Krishna Agarawal and Sri Lal Mani Singh, learned Central Government Standing Counsel for the petitioners and Sri Shyamal Narain, learned Counsel for the respondents.
FACTS
2. Briefly stated the facts of the present case are that all the private respondents / candidates have completed apprenticeship in different trades under The Apprentices Act, 1961 (hereinafter referred to as Act, 1961). Advertisement for direct recruitment process (OPF/DR/2015A) for Group ''C' posts was issued by the Government of India, Ministry of Defence, Indian Ordnance Factories, Ordnance Parachute Factory, Napier Road, Cantonment Kanpur in the month of April, 2015, inviting applications for the post of Tailor (ss), Machnist (ss), Fitter General Machanic (ss), Carpenter (ss), Fitter Electronic (ss), Examiner Clothing (ss). In Clause 9 of the advertisement it has been provided that the factories website address is www.parachutekanpur.gov.in, which may seen by the intending candidates for any purpose pertaining to this recruitment process. In Claus11 and 24 of the advertisement, it was mentioned as under:-
"11. All necessary information pertaining to this Recruitment Process including the FTA. OLAs. HCAs etc. and also all required Links pertaining to various activities of this Recruitment Process / Selection Process shall be displayed / available in the above Line / Page from the required date and time onwards and shall remain no displayed / available for the prescribed periods only.
24. It is emphasized and reassured to all intending Candidates that the selection to these Posts shall be done strictly based on the merit of the Candidates as adjudged from their performance in the Selection Process in a fair and transparent manner. "
3. Looking into the advertisement, all the petitioners of this batch of writ petitions applied for the post advertised for recruitment through direct recruitment process. The petitioners of this batch of writ petitions, except the petitioner of Writ-A No.11776 of 2017, have challenged separately the advertisement issued by different Ordnance Factories of the Ministry of Defence, which are similar to the advertisement as noted above.
4. Learned Counsel for the private respondents / candidates states that the candidate Aditya Kumar is respondent in Writ A No.11776 of 2017 and Writ A No.9563 of 2017 and he has neither applied nor participated in the selection process.
5. All the respondents / candidates filed Original Applications before the Central Administrative Tribunal Allahabad Bench, Allahabad which have been disposed of by the impugned common order dated 06.10.2016. In paragraph no.5 of the impugned common order, the tribunal has noted in nutshell the controversy, as under:-
"what is the effect of Section 22 of the Act, 1961 as amended by Act 29 of 2014. w.e.f. 08.12.2014 and the SRO No. 185 of 1994, dated 01.11.1994."
6. The Tribunal considered the controversy and held in paragraph no.11, as under :-
"11. This order was adjudicated before the Hon'ble High Court of Delhi in the case of Puneet And Anr. Vs. U.O.I. and Ors in W.P. (C) No.26/2009, dated 20.07.2010 in paragraph 10, 20 and 21 of the judgment the bench observes that a harmony has to be achieved of who have successfully undergone apprenticeship training are to be treated as senior to the persons trained earlier and of those who found suitable as other things being equal, a trained apprentice should be given preference over direct recruits and thereafter the placement should be in accordance with their seniority in the years of completion of Apprenticeship course and explaining the interpretation of the Hon'ble Apex Court Judgment in the case of U.P. State Road Transport Corporation's. In paragraph 25 of the judgment the Hon'ble High Court have explained that even in granting preference it shall be on the basis of seniority. Therefore, in the light of the judicial interpretation we have also examined this issue. It appears to us also that the SRO 185 will reign supreme and the amendment of Section 22 must be understood in the light of SRO 1994 and not in spite of it. Therefore, all the notifications dated 20.06.2015 to 26.06.2015 which are issued contrary to the words of SRO 1994 are hereby quashed. The respondents shall offer appointment in accordance with the seniority list and merit to the Apprentice and only if there is a vacancy, following this then only they will be eligible to entitle for call for a direct recruitment. "
7. Aggrieved with the impugned common order, the petitioners i.e. Union of India has filed the present writ petitions.
8. Since, with the consent of the learned Counsel for the parties, the writ petition being Writ A No.11776 of 2017 is treated as the leading writ petition, therefore, the relief sought therein, is reproduced below:-
"(i) Issue a writ order, a direction in the nature of certiorari quashing the impugned order dated 06.10.2016, passed by the Hon'ble Central Administrative Tribunal, Allahabad in OA No.330/00801 of 2016, Aditya Kumar vs Union of India and others (Annexure No.1 to this writ petition).
(ii) Issue a writ order, direction in the nature of mandamus to not to interfere in process of selection under the advertisement.
(iii) Issue any suitable writ order or direction with this Hon'ble Court may deem fit and proper under the circumstances of the present case.
(iv) Award Cost."
SUBMISSIONS
9. Learned Central Government Standing Counsel for the petitioners submits as under :-
(i) The respondent / candidates having passed apprenticeship under the Act, 1961 do not have any right to get employment automatically, unless they go through the recruitment process for direct recruitment as per SRO No. 185 of 1994. Therefore, the Tribunal has committed a manifest error of law to quash the advertisement and to direct the petitioners herein to offer appointment to the respondents in accordance with seniority list and merit to the apprentice and if still there is a vacancy, then only appointment can be made by direct recruitment.
(ii) The Tribunal although admitted that recruitment by direct recruitment process may be made and yet illegally and without reference to any statutory provisions directed to give necessarily employment to the respondents / candidates who completed apprenticeship under the Act, 1961. Thus, tribunal has directed for automatic appointment to each candidates having completed apprenticeship under the Act, 1961, which is wholly illegal and contrary to the provisions of Section 18 and 22 of the Act, 1961 as well as the SRO 1994.
(iii) After the judgement in the case of M. Sabarinathan vs. The General Ordnance Factory and others in Writ Appeal (MD) No. 316 of 2007 decided by Madras High Court (Madurai Bench) on 14.12.2007 which was affirmed by Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.21454 of 2008 (Union of India and others vs. M. Sabarinathan and others) decided on 15.11.2010 dismissing the SLP, a decision was taken by the Central Government to make appointments by direct recruitment and candidates who have completed apprenticeship under the Act, 1961, shall be given preference. Therefore, the advertisements in question were withheld and the selection process was not proceeded with and a new policy decision was taken on 09.05.2016.
(iv) Thus, the appointments are now to be made by direct recruitment in which those candidates who have completed apprenticeship under the Act 1961 would be granted weightage of five extra marks. Because of the pendency of writ petitions, the recruitment process could not be carried further and the entire recruitment process is withheld.
(v) The SRO 185 of 1994, dated 01.11.1994 provides for recruitment for non-selection post, by three modes, firstly by promotion, secondly by transfer and thirdly by direct recruitment. It does not provide for automatic appointment of candidates who have completed apprenticeship under the Act, 1961. The posts advertised are such which could not be filled either by promotion or by transfer and therefore, the advertisement for appointment by direct recruitment was made.
(vi) Column 12 of Clause 5 of the SRO 185 of 1994 provides for person in unskilled trade to pass trade test. Note 6 of the SRO provides the term trade test will include written, oral, practical examination, aptitude test, interview and also statutory qualification test. Thus, as per SRO 185 of 1994 the trade test is mandatory.
(vii) The real grievance of the respondents / candidates is that they completed training in the ordnance factory and were awarded National Apprenticeship Certificate by the National Council of Trade Vocational Training. Therefore, they must be given employment in exclusion to others who have completed training in other factories. This, claim of the respondents/candidates amounts to breach of Article 14 and 16 of the Constitution of India on one hand and on the other hand requires automatic employment on mere completion of apprenticeship in conflict with the provisions of Sub-Section (2) of Section 22 of the Act, 1961.
10. Learned Counsel for the respondents / candidates submits as under :-
(i) Recruitment Rules is the SRO 185 of 1994. The respondents issued several circulars being circular dated 07.10.2013 and 09.05.2016 etc. which is in conflict the aforesaid recruitment Rules. The respondents / candidates filed O.A. mainly for the relief that the recruitment should be made on the advertised posts, strictly in accordance with SRO 185 of 1994. It is not the case of the respondents / candidates that they should be appointed as a matter of right on account of possessing apprenticeship certificate issued by NCVT. By the impugned order, the Tribunal has merely granted the relief by quashing the advertisements published between 20.06.2015 to 26.06.2015 being contrary to the SRO 185 of 1994 and directed the respondents to enforce SRO 185 of 1994.
(ii) The only attack in the present writ petitions which can be made by the petitioners is the findings of the tribunal that "the respondents shall offer appointment in accordance with the seniority list and merit to the apprentice and only if there is a vacancy, following this than only they will be eligible to entitle for call for a direct recruitment."
(iii) The aforesaid direction of the tribunal in the impugned order is valid for the following reasons :-
(a) Clause 5 of the Rules, 1994 provides for recruitment of semi skilled workmen (List of trades at Annexure-A and B). It is a non-selection post. In Column 11 method of recruitment has been provided to be 80% by transfer failing which by direct recruitment and 20% by promotion. Since the recruitment Rules i.e. SRO 185 of 1994 provides for recruitment on the post in question as a non-selection post, therefore, even if some posts are left after transfer, it has to be filled in the manner as provided under the Rules and not by way of open competition.
(b) Since the Rules, 1994 i.e. SRO 185 of 1994 does not provide for recruitment on semi skilled posts by open competition, therefore, the petitioners possessing apprenticeship certificate issued by NCVT are not required to face open competition in the absence of any provisions in recruitment rules. Therefore, to fill the posts by open competition shall be in contradiction to the nature of posts i.e. non-selection posts. Therefore, the respondents / candidates are entitled to be appointed as per seniority list of apprentices who hold apprenticeship certificate after completion of training in a particular ordnance factory in accordance with seniority list maintained by training factories.
(c) Column 8 (5) provides for academic qualification limited to NCVT certificate in the relevant trade failing which ITI or equivalent diploma/certificate as well as degree. Therefore, no further qualification or test or competition is required under the rules for recruitment of semi skilled workmen.
(iv) Reliance is placed upon the judgement of Delhi High Court dated 20.07.2010 in Writ Petition (C) No. 26 of 2009, Puneet and others vs. Union of India and others, (Paragraphs 15 and 18 to 25).
(v) The judgement relied upon by the petitioners are totally distinguishable on facts of the present case inasmuch as in those cases, the recruitment rules itself provide for open competition whereas the present set of rules i.e. SRO 185 of 1994 does not provide for any open competition for recruitment on the post of semi skilled workmen. Therefore, the rules which hold the field cannot be overridden by circular issued by the authorities.
(vi) Reliance is placed upon the judgement of Hon'ble Supreme Court in the case of Ajay Kumar Das vs. State of Orrisa, (Civil Appeal No.4977 of 2009), decided on 31.07.2009 (Paragraph 10), which laid down the law that statutory rules framed in exercise of powers conferred under Article 309(1) of the Constitution of India can be amended only by the rule making body exercising the powers under the constitution and not otherwise. Similar principles have been laid down by full Bench decision of this Court in Vijay Singh vs. State of U.P. and others, 2004 (3) UPLBEC 2789 (Paragraphs 6, 7, 8, 9, 10, 11).
(vii) If a thing is required to be done in a particular manner that can be done in that manner alone and in no other manner. Therefore, the Government has the power to amend the recruitment rules, 1994 but the authorities cannot override it by issuing circulars. Therefore, since the recruitment Rules, 1994 is amended, it shall continue to hold the field. Therefore, the OFB circular dated 17.10.2013 and the Ministry of Defence letter dated 09.05.2016 (Annexure-8 and 9 respectively) being in conflict with the recruitment Rules, 1994 deserves to be ignored.
11. Having heard learned Counsel for the parties, the following questions are framed with their consent for determination :-
(a) Whether the recruitment on the post in question i.e. "Semi-Skilled Workman" is governed by the provisions of the Ordnance Factories Group C & D Industrial Posts Recruitment Rules, 1994 notified by S.R.O. 185 of 1994 dated 01.11.1994 in exercise of powers conferred by proviso of Article 309 of the Constitution of India?
(b) Whether posts termed as "Non-Selection Post" in Clause (5) of the Ordnance Factories Group C & D Industrial Posts Recruitment Rules, 1994 includes vacancies to be filled by direct recruitment and whether for direct recruitment, Trade Test is mandatory?
(c) Whether under the facts and circumstances of the case, the respondent-candidates have any statutory right to be recuited on "Semi-Skilled Posts" merely on the basis of NCVT (Natoinal Council for Vocational Training) Certificate, without any competetive test?
(d) Whether under the facts and circumstances of the case, the impugned order of the Tribunal is valid?
Discussion and Findings:-
12. We have carefully considered the submissions of learned counsels for the parties and perused the record of the writ petitions.
13. Undisputedly the respondent-candidates possess NCVT certificates acquired by them under the Apprentices Act, 1961 (hereinafter referred to as 'the Act, 1961"). To obtain the aforesaid certificates, they have completed their training in the Ordnance factories in question. They are prospective candidates for the post of "Semi-Skilled Workman" of the trades specified in Annexure-A of the Ordnance Factories Group C & D Industrial Posts Recruitment Rules, 1994 (hereinafter referred to as "the Recruitmet Rules, 1994"). It is admitted case of the respondent-candidates that recruitment on Group "C" Posts of Semi Skilled Workman in trades of Annexure ''A' is governed by Clause (5) of the Schedule to The Recruitment Rules, 1994 read with the Notes appended thereto. The Schedule appended to the Rules, 1994 contains six clauses. Clause (1) relates to recruitment on the post of Master Craftman. Clause (2) relates to recruitment on the post of highly Skilled Grade Workman (List of trades at Annexure A & B). Clause (3) relates to recruitment on the post of highly skilled Grade II Workman (List of trades at Annexure A & B). Clause (4) relates to Skilled Workman (list of trades at Annexure A and B). Clause (5) relates to recruitment of Semi-Skilled Workman ((List of trades at Annexure A & B). Clause (6) relates to recruitment on the post of unskilled workman.
14. To appreciate the rival submissions of parties, it would be appropriate to reproduce the relevant portion of the aforesaid Rules, 1994, Clause (5) of the Schedule and ''Notes' appended to the Rules, as under:-
"S.R.O. 185.-In exercise of the powers conferred by the proviso to article 309 of the Constitution and in supersession of the Ordnance Factories Group C and Group D Industrial posts Recruitment Rules, 1989, except as respects things done or omitted to be done before such supersession, the President hereby makes the following rules regulating the method of recruitment to the posts of industrial employees in Group C and Group D in Ordnance Factories and Ordnance Equipment and Clothing Factories and other offices establishments under the Ordnance Factories Organisation, namely:-
Short title and commencement.-(1) These rules may be called the Ordnance Factories Group C and Group D Industrial Posts Recruitment Rules, 1994.
(2) They shall come into force on the date of their publication in the Official Gazette.
Application-These rules shall apply to the posts specified in column 1 of the Schedule annexed to these rules. The trades and grade of these posts shall be as per the Aunnexures A and B of the said Schedule.
Number, classification and scale of pay.-The number of the said posts, their classification and the Scales of pay attached thereto shall be as specified in columns 2, 3 and 4 respectively of the said Schedule.
Method of Recruitment, age limit, qualifications etc.- The method of recruitment to the said posts, age limit, qualifications and other matters connected herewith shall be as specified in the columns 5 to 14 of the aforesaid Schedule.
Disqualification: .............................................
Power to relax.-Where the Central Government is of the opinion that it is necessary or expedient to do so, it may by order, for reasons to be recorded in writing, relax any of the provision of these rules with respect to any class or category of persons.
Saving.-Nothing in these rules shall affect reservations, relaxation of age limit and other concessions required to be provided for the Schedule Caste, the Schedule Tribes, Ex-Serviceman and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard.
Clause (5) of the Schedule:
1Name of post 2 No. of post 3 Classification 4 Scale of pay 5 Whether Selection or Non-selection post 6 Whether benefit of added years of service admissible under rule 30 of the Central Civil Services (pension) Rules, 1972 Semi-skilled workman (list of trades at Annexure A and B) 16005* (1994) *Subject to variation dependent on workload Civilian in Defence Service, Group 'D' Industrial Rs.800-15-1010-EB-20-1150 Non-selection post Not applicable 7 Age limit for direct recruits 8 Educational and other qualifications required for direct recruits 9 Whether age and other educational qualifications prescribed for direct recruits will apply in the case of promotees 10 Period of probation if any 11 Method of recruitment whether by direct rectt. or by promotion or by deputation/ transfer and percentage of the vacancies to be filled by various methods 30 years (a. (i) For the Trades at Annexure A National Council of Trades for Vocational Training Certificate in the relevant trade failing which by ITI or equivalent Diploma/ Certificate holder No For Promotees: Nil For direct recruits:
2 years
(i) For trades listed at Annexure A-80% by transfer failing which by direct recruitment. 20% by promotion for each trade including allied trades after adjustment of surplus
(ii) For trades listed at Annexure B-100% by promotion for each trade including allied trades after adjustment of surplus and transfers. In any trade (such as new trade on failure of recruitment by promotion by transfer failing which by direct recruitment 12 In case of rectt. by promotion/ deputation/transfer, grades from which promotion/ deputation/ transfer to be made 13 If a DPC exists, what is its composition 14 Circumstances in which UPSC is to be consulted in making recruitment Promotion: From persons in the un-skilled grade in the pay scale of Rs. 750-12-870-EB-14-940 having a minimum regular service of 3 years and on passing trade test and on acquiring statutory qualifications where required.
Transfer: On passing the trade test and on acquiring statutory qualifications where required Not applicable Not applicable .....................
Note 1 :The number of posts indicated in Column 2 in the Schedule are subject to variation dependent on workload.
Note 2: The age limits indicated under Column 7 are relaxable for Government servants, upto 35 in accordance with the instructions or order issued by the Government of India.
Note 3 : Wherever the words "adjustment of surplus" occur in Column 11 of this Schedule it shall mean appointment in public interest by the Management of persons already holding posts same or identical or nearly equivalent scale of pay in any factory or office or anywhere in the Ordnance Factories Organisation whom it is necessary to adjust in the posts in the exigencies of service consequent on the persons or the posts held by them being found surplus by the Management.
Note 4 : Wherever the word "Transfer" occurs in Column 11 or 12 of this Schedule it shall include transfer in public interest by the Management of persons (already holding posts in the same or identical or nearly equivalent scale of pay) to posts in the same factory or office in the Ordnance Factories Organisation and also Transfer within the same factory or office at the request of the person concerned where agreed to by the Management. The Transfers in public interest will include Transfers from one grade, interse promotions from another grade where from two different grades. The transfer in public interest will also include filling of posts by transfer of persons holding post from which there is no promotion to any other posts or grade whether or not such posts are declared equivalent posts and such appointments by transfer may be made prior to filling of posts by promotion from other grades or by direct recruitment. The transfer in public interest will also include Transfer of persons in the Trades to be abolished or merged with other trades on administrative grounds.
Note 5 : The term "Deputation" shall mean deputation for specified period in accordance with orders of the Government in-force from time to time and in the exigencies of service, the Ordnance Factory Board or the General Manager of the factory may, in the public interest, take suitable persons from outside the Ordnance Factories Organisation on deputation to any of the posts specified in this Schedule.
Note 6: Wherever "trade test" is laid down in Column 12 of this Schedule such trade test shall be prescribed by the General Manager of the factory or the Ordnance Factory Board. The term "Trade test" will include written, oral and practical examination and aptitude test and interview and also statutory qualification test where applicable.
Note 7 : Wherever the words "Penal prepared by relevant Departmental Promotion Committee" occur in Column 11 and recruitment is to be made by selection the words shall mean preparation of panel purely on the basis of merit by reference to confidential reports/ performance reports, if no confidential reports are prescribed and/ or by reference to results of a trade test.
Note 8 : Promotion indicated in Columns 11 and 12 of this Schedule will normally be from feeder grade indicated as Column 12 but where two or more Factories Organisation "allied trades" or "allied grades" by the General Manager of the factory or Ordnance Factory Board selection for promotion will he made from common seniority list of eligible persons in the allied grades or allied trades.
Note 9 : The words "equivalent posts" and its variants in these rules will mean any posts in some or identical scale of pay as another posts in the same or another category and which posts the Ordnance Factory Board or General Manager of factory may declare as equivalent posts and they will be considered to be interchangeable or stroke (/) appointments.
Note 10: In relation to prescribed qualifications under Column 8 of this Schedule the question whether a qualification is equivalent to the prescribed qualification for any post shall be decided by the Ordnance Factory Board.
Note 11: For the purpose of these rules, the Ordnance Factory Board may authorise any Member of the Board or an Additional Director General Ordnance Factories to exercise any or all its powers on its behalf and it shall he deemed to have been exercised by the said Board.
Note 12 : In these rules the term "General Manager of the Factory" and its variations shall include Senior General Manager, Additional General Manager, Officer-in-Charge, Officer in temporary charge of the factory and Director of Staff College and heads of other establishments declared by Ordnance Factory Board to be equivalent to General Manager of Factory.
Note 13: Wherever any age limit is laid down in Column 7 of this Schedule the crucial date for determining the age limit shall be the closing date for receipt of applications from candidate in India (from Andaman and Nicobar Islands and Lakshadweep). In respect of posts the apointment to which are made through the Employment Exchanges the crucial date for determining the age limit, in each case, will be the last date upto which the Employment Exchanges are asked to submit the names.
Note 14 : Wherever any condition of a minimum service is laid down in Column 12 of this Schedule and a junior employee is considered for selection by virtue of his satisfying the said minimum serivce condition all persons senior to him who have completed probationary period shall also become eligible for consideration for selection notwithstanding that they may not satisfy the said minimum service condition.
Note 15 : In the exigencies of the service within the total number of posts in the same scale of pay (Grade) the Ordnance Factory Board may add to the number of trades or sub-divide, abolish or merge any trade mentioned in Annexure A and B to this Schedule or add to and reduce number of posts in different trades on same scale of pay from time to time on the basis of changes in functional requirements.
Note 16 : The incumbents of posts in this Schedule are normally liable for service in the same factory or office in the Ordnance Factories Organisation but without prejudice to the right of the Management, in the public interest, to transfer them to equivalent posts in any other factory or office in the Ordnance Factories Organisation."
15. Sections 18 and 22 of the Apprentices Act, 1961 would be relevant to be considered, which are reproduced below:
"Section 18: Apprentices are trainees and not workers.- Save as otherwise provided in this Act,-
(a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker; and
(b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice.
Section 22: Offer and acceptance of employment - (1) Every employer shall formulate its own policy for recruiting any apprentice who has completed the period of apprenticeship training in his establishment.
(2) Notwithstanding anything in sub-section (1), where there is a condition in a contract of apprenticeship that the apprentice shall, after the successful completion of the apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract:
Provided that where such period or remuneration is not, in the opinion of the Apprenticeship Adviser, reasonable, he may revise such period or remuneration so as to make it reasonable, and the period or remuneration so revised shall be deemed to be the period of remuneration agreed to between the apprentice and the employer.
Note: The aforequoted Section 22 was substituted by Act 29 of 2014 w.e.f. 22.12.2014."
Question No. (a) Whether the recruitment on the post in question i.e. "Semi-Skilled Workman" is governed by the provisions of the Ordnance Factories Group C & D Industrial Posts Recruitment Rules, 1994 notified by S.R.O. 185 of 1994 dated 01.11.1994 in exercise of powers conferred by proviso of Article 309 of the Constitution of India?
16. It is admitted case of the parties that recruitment on the post of "Semi-Skilled Workman" is governed by the Recruitment Rules, 1994. Therefore, this question is answered in affirmative and it is held that the vacancies of "Semi-Skilled Workman" is liable to be filled in accordance with the Recruitment Rules, 1994 readwith Section 22 of the Act, 1961.
Question No.(b) Whether posts termed as "Non-Selection Post" in Clause (5) of the Ordnance Factories Group C & D Industrial Posts Recruitment Rules, 1994 includes vacancies to be filled by direct recruitment and whether for direct recruitment, Trade Test is mandatory?
17. Rule 2 of the Recruitment Rules, 1994 under the heading "Application" provides that the Rule shall apply to the post mentioned in Column 1 of the Schedule annexed to the Rules. The method of recruitment has been specified in Columns 4 to 14 of the Schedule. In the present cases, we are concerned with recruitment on the post of "Semi-Skilled Workman." Column 5 of Clause 5 of the Schedule specifies the post of "Semi-Skilled Workman" as "Non-Selection Post." However, mere mentioning of Non-Selection Post in Column 5 doe not make it absolutely a promotional post inasmuch as Column 7 itself provides age limit for direct recruits, Column 10 provides period of probation of two years for direct recruits and Column 11 provides for direct recruitment on vacancies left out from 80% quota by transfer. Thus, specification of the post in Column 5 as "Non-Selection Post" is only with respect to the vacancies to be filled by transfer and promotion as specified in Column 11 itself. Accordingly, we hold that the term "Non-Selection Post" used in Column 5 of Clause 5 of the Schedule annexed to the Rules means vacancies to be filled by promotion/ transfer. The left out vacancies of transfer category shall be filled by direct recruitment.
18. The educational and other qualifications required for direct recruits have been prescribed in Column 8 of Clause 5. The educational qualification prescribed for direct recruits in Column 8 for trades at Annexure A is NCVT certificate in the relevant trade failing which ITI or equivalent diploma/ certificate. In matters of filling up vacancies on the post of "Semi-Skilled Workman" by promotion or transfer, a necessary condition "on passing the trade test and on acquiring statutory qualifications where required" has been prescribed in Column 12. Therefore, all those candidates who intend to get employment on the post of "Semi-Skilled Workman" under the categories "promotion" or "transfer", are required to pass trade test and on acquiring the required statutory qualifications. The words "Trade Test" as specified in Column 12 of the Schedule read with the Note 6, means such trade test as may be prescribed by the General Manager of the Factory or Ordnance Factory Board and the term "Trade Test" will include written, oral and practical examination and aptitude test and interview and also statutory qualification test where applicable.
19. The Ordnance Factory Board, Ministry of Defence, Government of India has issued policy decisions/ guidlines prescribing procedure for direct recruitment from time to time to be followed for recruitment of Ex-Trade Apprentices in Ordnance Factories, vide circulars dated 06.01.2011, 21.10.2011, 17.10.2013 and 09.05.2016, which are reproduced below:-
Policy decision dated 06.01.2011:
"No. 570/A/I(PT)/54/Vol. IV/294 Date 06-01-2011 To The Sr. General Manager/ General Manager, All Ordnance & Ordnance Equipment Factories. Sub.:- Recruitment of Ex-Trade Apprentices in OFs Ref.:- OFB letter No. 570/A/I(PT)/54/Vol. IV/294 dated 24.11.2010.
Vide letter under reference, the Factories were requested to keep in abeyance all the recruitment actions/processes to the post of Industrial Employees (Semi-Skilled Tradesmen) where ex-trade apprentices of Ordnance Factories have been considered or which may be otherwise at variance from the direction contained in SLP C) No. 21454 of 2008 of the Hon'ble Supreme Court of India and WA(MD) No. 316 of 2007 of the Hon'ble Madurai Bench of Madras High Court.
has since been decided that :-
(a) Recruitment action involving only outside candidates through open advertisement/ Employment Exchange may be processed and finalized by carrying out selection strictly on relative merit.
(b) Cases in which recruitment action is yet to be initiated or selection is yet to be completed will be processed in accordance with revised procedure pursuant to Hon'ble Supreme Court Judgement on the subject annexed herewith.
(c) In case of recruitment process for which selection has been completed before the date of Hon'ble Supreme Court Judgement, further necessary action may be taken.
This issues with the approval of the DGOF & Chairman/OFB Enclo. As above (S.K. Singh) Director/IR For D.G.O.F. ANNEXURE TO OFB LETTER No. 570/A/I(PT)/54/Vol. IV/294 dated 06-01-2011 In Ordnance Factories the direct recruitment for the post of semi-skilled grade workers against skilled posts in the Industrial Establishment was regulated in terms of the OFB letter No. 570/A/I/II) dated 15/20 October, 1999.
2. In Writ Appeal No. WA(MD) No. 316 of 2007, the above said recruitment procedure came under Judicial scrutiny before the Madurai Bench of the Hon'ble High Court, Madras, wherein the applicant specifically prayed for a direction to the General Manager, Ordnance Factory, Trichy to make appointments to the semi-skilled post in accordance to the DOPT OM No 14024/1/2004 /Estt. (D) dated December, 2004.
3. The Madurai Bench of the Hon'ble High Court, Madras, in the above mentioned WA passed judgement on 14.12.2007 directing to follow the principle laid down in UPSRTC -vs- UP parivahan Nigam Shishukh Berazgar Sangh & Ors., 1995(2)SCC 1, and Excise Superintendent. Malkapatnam, v K.BN. Visweswara Rao, 1996(6) Supreme Court Cases 216, and held that the requisitioning department should call for the list of eligible candidates from Employment Exchange and the apprentice department or undertaking or establishment shall invite candidates by publication in newspapers and other media, and then consider the cases of all the candidates. who have applied, and, in the selection process, other things being equal, trained apprentices shall be given preference.
4. The judgement of the Madurai Bench of the Hon'ble High Court, Madras in WA(MD) 316 of 2007 was challenged before the Hon'ble Supreme Court of India by the Union of India & Ors. in Special Leave to Appeal (C) No. (S) 21454/2008. The Hon'ble Supreme Court vide judgement dt 15 11.2010 in the said SLP did not interfere with the impugned judgement in WA(MD) 316 of 2007 and dismissed the SLP.
5 In view of the above developments and directions of the Hon'ble Supreme Court & Hon'ble High Court of Madras (Madurai Bench) it has become imperative to revise the guidelines for direct recruitment of ex-Trade Apprentices in Ordnance Factories issued vide OFB letter No. 570/ (III) dated 15/20th October, 1999.
The Factories should follow the following procedure for processing direct recruitment to Semi-skilled Tradesman in the Industrial Cadre.
(A) The vacancies will be notified to the Employment Exchange for forwarding the list of eligible candidates. Simultaneously, the vacancies will be published in newspapers, Employment News & other media through DAVP. In addition, the recruitment notices should also be displayed the Factory's Notice Board for wide publicity. The ex-trede apprentices of the Ordnance Factories would not be required to get their names sponsored by Employment Exchange. However, the Ex-trade apprentices of the concerned recruiting Ordnance Factory would not be required to apply against the recruitment notice and they will be considered along with others. Ex trade apprentices of the Ordnance Factory may be given relaxation in age to the extent of the period for which they had undergone training.
(B) The educational qualification for direct recruitment to the post of semi-skilled tradesmen listed in Annexure 'A' of the existing SRO is NCTVT in the relevent trade failing which by ITI or equivalent Diploma/Certificate. Hence, an applicant will be eligible as a candidate for a particular semi-skilled trade provided he/she possesses the above said qualification in that trade only i.e. no inter-changing of trade is permissible. The syllabus for written test for a trade will be broadly as that of the NCTVT examination syllabus for that trade. The syllabes for trade test (Practical) will be as per Trade Test Specification of the semi-skilled grade of the relevant trade.
(C) The selection will be made strictly on the basis of merit. The selection process will comprise of written test of 100 marks and Trade Test (Practical) of 100 marks. All eligible candidates will be called for an objective type written test. On the basis of merit of written test marks, candidates will be called for Trade Test (practical test) of 100 marks in the ratio of 1:3 to the number of vacancies. Final merit will be decided on the basis of combined marks in the written and practical test.
In the selection process, other things being equal i.e. marks being equal, trained ex- Trade apprentices of the recruiting Ordnance Factory and sister Ordnance Factories shall be given preference in the order in which they are stated.
(i) In between the trained ex-Trade Apprentices of the recruiting Ordnance Factory, preference shall be given to those who are senior i.e. if two or more ex- Trade apprentices secure the same marks then preference shall be given on the basis of seniority. Seniority of ex- Trade apprentices of the recruiting Ordnance Factory shall be decided on the basis of OFB's letter No. 13/08/03-A/HRD dated 15/17-12-2003 and the relevant portion is reproduced below:-
"The NCTVT examination batch numbers (month/year) will be the criteria for maintaining the seniority of Ex-TA.
The merit list of particular NCTVT examination will be the criteria of seniority for Ex-TA for that batch.
Factory should maintain batch wise, trade-wise Ex-TA seniority Strictly as per the NCTVT examinations irrespective of whether the candidate is Ex-ITI or a fresh apprentice. In other words, Ex-TA who has passed NCTVT examination in an earlier batch (NCTVT) senior to the Ex-TA passed in the subsequent batch irrespective of the year of joining Trade Apprentices Scheme."
(ii) Simply in between the trained ex- Trade Apprentices of the sister Ordnance Factories preference shall be given to those who are seniors as mentioned above.
The above instructions will be followed by all factories in a uniform manner."
Policy decision dated 21.10.2011:-
"Bharat Sarkar Rakshaa Mantralaya Ayudh Nirmani Board 10-A Shahid Khudiram Bose Road, Kolkata-700001 No.800/SRO/AI/245 21.10.2011 To The Sr. General Manager/General Manager All Ordnance & Ordnance Equipment Factories Sub. :- Clarification regarding Educational & others qualification for direct recruits in Semi-skilled grade.
Ref. :- OFB letter No. 570/A/I(PT)/54/Vol. IV/294 dated 06.01.11 Consequent upon the issue of revised guidelines for recruitment of Ex-trade Apprentices in OFs. vide OFB letter at reference, several factories have sought clarification regarding the educational qualifications for direct recruitment for the Annexure-A trades in SRO 185 of 1994.
02. SRO 185 of 1994 stipulates that the educational qualification for direct recruits for the trades at Annexure 'A', is National Council of Trades for Vocational Training certificates in the relevant trade failing which by ITI or equivalent Diploma/ Certificate holder.
03. In view of the above said SRO provisions, the National Apprentice Certificate and National Trade Certificate issued by NCVT in the relevant trade can be accepted as the qualification required for direct recruitment to semi-skilled posts at Annexure 'A to the said SRO. Further Degree and Diploma in Engineering cannot be accepted as qualification for Direct Recruitment to the semi-skilled posts. It is also clarified, that only when applicants with NCVT certificates as mentioned above are not available, then only applicants with ITI or equivalent Diploma/Certificate holders will be considered.
(S. K Singgh) DIRECTOR/IR For D.G.O.F."
Policy decision dated 17.10.2013:-
"Government of India Ministry of Defence Ordnance Factory Board, 10A, S.K. Bose Road, Kolkata - 700 001 No.800/SRO/A/1/245 Dated 17-10-2013 To The All Sr.General Manager/General Managers, Ordnance & Ordnance Equipment Group of Factories, Sub: Clarification regarding Educational qualification for Direct Recruitment in Semi Skilled Grade.
Ref: (i) OFB letter No.570/A/I(PT)/54 Vol.IV/294 dated 06 01.2011
(ii) OFB circular. No, 800/SRO/A/1/215 dated 21.10.2011.
In continuation of OFB circular No.800/SRO/A/1/245 dt.21.10.2011. it is hereby intimated that in the advertisement for Direct Recruitment to Semi Skilled Posts of Annexure- A Trades, the requisite educational qualification should be mentioned as "Matriculation + NAC/NTC issued by NCVT" without mentioning the failing which clause in the existing SRO.
2. It is once again clarified that NAC and NTC are to be treated at par for all recruitment purposes, and that Diploma in Engineering without possessing NAC/NTC can not be accepted as qualification for direct recruitment.
3. In partial modification to puru 6(A) of OFB circular: No.570/A/I(PT)/54/Vol.IV/294 dated 06.01.2011, it is intimated that wherever applications for direct recruitment are being invited online, even the trade apprentices of Ordnance Factories would be required to apply online, It should be made amply clear in the text of the advertisement notice.
4. This issues with the approval of DGOF & Chairman (A.K. Nayak) Dy. Director General/ IR For Director General, Ordnance Factories Policy decision dated 09.05.2016:-
Ministry of Defence Department of Defence Production D(Estt./NG) Subject: Recruitment of Industrial Employees from Ex-Trade Apprentice of Ofs.
In line with the amendment to Section 22 of Trade Apprentices Act, it has been decided to amend the existing policy of recruitment of industrial employees from Ex-Trade Apprentice of OFs to the extent as under:-
Provision of granting five extra marks to Ex-Trade Apprentices in the final merit list of the written examination conducted for a total of 100 marks may be included.
2. OFB is requested to include the above provision in the existing policy for all future recruitments in the cadres involving Ex-Trade Apprentices.
3. This issues with the approval of Hon'ble RM.
Sd/-
(Amlan Das) Under Secretary DDG/IR OFB, Kolkata.
MoD ID No.50(41)/2016-D(Estt./NG) dated 09.05.2016."
20. Thus, methodlogy for selection by direct recruitment on the post of "Semi-Skilled Workman" stood prescribed by Policy of Odnance Factories Board by Annexure to OFB Letter No.570 dated 06.01.2011 and other Policy decisions aforequoted which are in tune with Section 22(1) of the Act, 1961 and the Recruitment Rules, 1994.
21. Pursuant to the aforesaid Recruitment Rules, 1994, and adopting the Policy decision/ guidelines of Ordnance Factory Board, Ministry of Defence, Government of India; Ordnance Factories issued advertisements inviting applications for direct recruitment on Group ''C' posts of its industrial establishment. Thus, each Ordnance Factory has recruitment policy ensuring transpearancy in recruitment and equality of opportunity in employment to all eligible candidates of Group ''C' posts in Ordnance Factories, i.e. government employment which meets the basic requirement of fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India.
22. We also find that the advertisements dated 20.06.2015 to 26.06.2015 which were challenged by the respondent-candidates before Tribunal, specifically provides for inviting application for recruitment to the specified Group ''C' Posts in terms of the Recruitment Rules, 1994 and the policy decision of the Ordnance Factory Board. The employer is master to prescribe the procedure for direct recruitment. The aforequoted policy decision dated 06.01.2011 and its Annexure dated 21.10.2011, 17.10.2013 and 09.05.2016 are neither in conflict with the Recruitment Rules, 1994 nor in conflict with Section 22 of the Apprentices Act, 1961 nor it infringes any of the fundamental rights of the petitioners granted under Articles 14 and 16 of the Constitution. The respondent - candidates have completely failed to draw our attention to any statutory provisions which confers any right upon them for appointment as "Semi-Skilled Workman" in Ordnance Factories of Government of India, Ministry of Defence, without any competetive examination and merely because they possess NCVT certificates.
23. Column (11) of clause (5) of the Schedule to the Recruitment Rules, 1994 provides for recruitment by "transfer" and by "promotion". Posts which could not be filled by transfer or promotion are to be filled by direct recruitment. Column 12 prescribes "trade test" of candidates who possess statutory qualification. This "trade test" is mandatory part of recruitment on the post of semi skilled workman. "Trade Test" has been defined in Note 6 to the Recruitment Rules, 1994, aforequoted. The words "Transfer" and "Promotion" have been defined in Note 4 and 8 respectively. All the candidates who apply for direct recruitment on the left out posts under the category "Transfer" and "Promotion" have to pass "trade test" defined in Note 6, as may be prescribed by the General Manager of the factory OR the Ordnance Factory Board. The Ordnance Factory Board has prescribed it by aforequoted OFB No. 570 dated 06.01.2011 read with Annexure appended to it, followed by policy decision dated 21.10.2011, 17.10.2013 and 09.05.2016. The policy so formulated is also backed by Section 22(1) of the Act, 1961.
24. Thus, the question No.(b) is answered in affirmative and it is held that the term "Non-Selection Post" used in Column 5 of Clause 5 of the Schedule of the Recruitment Rules, 1994 read with Column 11 clearly establishes that the term "Non-Selection Post" has been used in Column 5 for posts to be filled by promotion/ transfer and also by direct recruitment. The term "Non-Selection Post" used in Column 5 has not been used in a strict sense to indicate only for posts to be filled by promotion/ transfer. Therefore, posts to be filled by direct recruitments as mentioned in Column 11 has to be filled following the procedure provided in the Recruitment Rules, 1994 read with the aforequoted policy decisions and particularly Annexure to the policy decision dated 06.01.2011. In direct recruitment for the post of "Semi Skilled Workman" trade test as prescribed is mandatory.
Question No. (c) Whether under the facts and circumstances of the case, the respondent-candidates have any statutory right to be recuited on "Semi-Skilled Posts" merely on the basis of NCVT, without any competetive test?
25. It has been well settled that an apprentice does not have a statutory right to claim an appointment and the employer is not under any statutory obligation to give him employment. However, if the terms of the contract of apprenticeship lay down a condition that on successful completion of apprenticeship an employer would offer him an employment, then it is obligatory on his part to do so. In the absence of such a condition, there is no obligation. The aforesaid principles are supported by the law laid down by Hon'ble Supreme Court in the case of Haryana Power Generation Corporation Limited and others Vs. Harkesh Chand and others, (2013) 2 SCC 29, (Paragraph 27), as under :-
"27. We have referred to the aforesaid pronouncements solely for the purpose that an apprentice does not have a statutory right to claim an appointment and the employer is not under any statutory obligation to give him employment. However, if the terms of the contract of apprenticeship lay down a condition that on successful completion of apprenticeship an employer would offer him an employment, then it is obligatory on his part to do so. In the absence of such a condition, there is no obligation. It depends on the terms of the contract. In the case at hand, as the letter of appointment would show, the employer had only stated that on successful completion of the training, the apprentice may be appointed as Plant Attendant/Technician Grade-II. Thus, it was not a mandatory term incorporated in the agreement casting an obligation on the employer to appoint him."
26. The question "whether an apprentice, who has successfully completed apprenticeship training under the Apprentices Act, 1961, 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" came up for consideration before a full bench of this Court in the case of Arvind Gautam and also before a Division Bench in the case of Nanhey Singh and others vs. State of U.P. and others, (Special Appeal (Defective) No. 110 of 2015, decided on 06.02.2015). Following the aforenoted law laid down by the full bench in Arvind Gautam's case (supra), the Divison Bench in Nanhey Singh and others (supra) held that competitive examination has not been exempted by the Supreme Court judgment in U.P. State Road Transport Corporation (supra)'s case. The relevant portion of the judgment in the case of Nanhey Singh and others (supra) is reproduced below:-
"7. The Division Bench of this Court in Manoj Kumar Mishra versus State of U.P. And others, rejected a similar claim. The issue before the Court was enunciated in para 3:-
"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."
8. On considering the provisions of the Act as well as the judgments including U.P. State Road Transport Corporation (supra), the Division Bench clarified that there was no settled direction that the apprentice would by-pass the selection process including a written examination. Paragraph 6 of judgment is extracted below:-
"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..... 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."
9. The Full Bench decision of this Court in Arvind Gautam (supra), 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 extracted:-
"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 Vs. 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."
10. In paragraph 11, the Full Bench held that: "apprentice trainees are also required to participate in competitive examination or test as may be provided by the rules of the concerned employers in respect of recruitments and when any of them is found equal to a non-apprentice candidate after the selection test then only preference is to be given in such a case to the apprentice trainee. This protects the possibility of meritorious non-appearance candidates from being discriminated vis-a-vis apprentice trainee".
11. The learned Single Judge in our opinion was justified in rejecting the claim of the petitioners seeking parity based on the judgments rendered in Manoj Kumar Mishra (supra), Vijay Shankar Sharma (supra), Sherpal (supra) and Nanhey Singh (supra) being per-incuriam, as the Full Bench decision in Arvind Gautam (supra) was not noticed in those decisions."
27. In the case of Abdul Hamid and others vs. Union of India and others, (2017) 11 SCALE 627 : 2017 (16) SCC 346 (Paragraphs 10 and 11), Hon'ble Supreme Court considered the question of equal opportunity to those who have undergone their apprenticeship training with the Railways and non-railway trained apprentices and interpreting the word ''preference' held that preference does not mean that the Railways trained apprentice will have an exclusive right to the exclusion of all others to be considered for appointment otherwise it would patently violate Article 14 and 16 of the Constitution of India depriving an equal opportunity, those who have not undergone apprenticeship training with the Railways to applying for these posts. Paragraphs-10 and 11 of the judgment in the case of Abdul Hamid and others (supra) are reproduced below:-
"10. It is apparent that there is a policy of the Railways to grant regularization to these fresh face substitutes. We need not refer to all the circulars issued in this behalf, but a perusal of the documents especially those filed as additional documents clearly show that the Railways has a policy of regularizing these fresh face substitutes. This, in our opinion, is a clear indicator that while making appointment of fresh face substitutes, the field of choice should be wide and all citizens who are qualified and eligible should be given a chance to take part in the selection process. Though these appointments may be termed as short term appointments, the facts placed on record reveal that thousands of fresh face substitutes have been regularized and have become employees of the Railways because of the policy of the Railways. It is, therefore, imperative that while appointing fresh face substitutes, a transparent system of appointment is followed. It would be much better if the Railways follows the regular system of appointment rather than making appointments on ad hoc basis of fresh face substitutes. However, as and when exigencies of service require that fresh face substitutes have to be appointed, then also the field of choice cannot be limited only to those who have undergone their apprenticeship training with the Railways since that would patently violate Article 14 and 16 of the Constitution of India depriving those who have not undergone apprenticeship training with the Railways of an equal opportunity for applying for these posts.
11. Reliance has been placed by learned counsel appearing for the Railways trained apprentices on the judgment of this Court passed in the case of U.P. State Road Transport Corporation and Another v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and Others. In Para 12 of the judgement it has been held that all other things being equal, the trained apprentices should be given preference upon direct apprentices. This judgment does not help the appellants at all. What has been held is that if the non-Railway trained apprentice is equal to the Railways trained apprentice on merit, then preference can be given to the Railways trained apprentice. The word "preference" does not mean that the Railways trained apprentice will have an exclusive right to the exclusion of all others to be considered for appointment. Both the Tribunal and the High Court were justified in deciding this issue against the Railways and in favour of the original applicants."
28. The State is the model employer. The obligation casts on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. Therefore, appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before us. The Directive Principles of State Policy have to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens or class who in the present set of facts are respondents asserting for automatic employment in the Ordnance Factory where they completed their apprenticeship, in exclusion to other eligible candidates for recruitment on the post of Semi-Skilled Workman (Group ''C' posts), is against the basic principles applicable for public employment as aforenoted. The aforesaid principles are also supported by the law laid down by the Constitution bench judgment of Hon'ble Supreme Court in the case of State of Karnatka vs. Umadevi (3), (2006) 4 SCC 1 (Paras-5, 6 and 51).
29. For all the reasons aforestated, the question No.(c) is answered in negative and it is held that under the facts and circumstances of the case, the respondent-candidates do not have any statutory right for compulsory or automatic recruitment on the post of "Semi-Skilled Workman" in the Ordnance Factory where they have undergone apprentice training under the Act, 1961 and merely because they possess NCVT certificate. They have a right to participate in the recruitment process in terms of the Recruitment Rules, 1994 and the aforequoted policy decisions provided they fullfil the educational and other qualifications required for direct recruitment as prescribed in Column 8 of Clause 5 of Annexure to the Recruitment Rules, 1994.
(d) Whether under the facts and circumstances of the case, the impugned order of the Tribunal is valid?
30. The inference drawn by the Tribunal in paragraphs 8, 9, 10 and 11 that on being selected by National Concil for Vocational Training to award certificate under the Act, 1961, candidates have legitimate expection and thus have preference in employment over the direct recruits, in the Ordnance Factory where they undergone apprenticeship. This finding of the Tribunal is not referable to any of the provisions of the Recruitment Rules, 1994. Use of the word ''preference' in clause 5(C) of the Annexure to the policy decision dated 06.01.2011 does not mean that such trained apprentices will have an exclusive right to the exclusion of all others to be considered for appointment. It provides that in the selection process, other things being equal, i.e. marks being equal, trained ex- Trade apprentices of the recruiting Ordnance Factory and sister Ordnance Factories shall be given preference in the order in which they are stated. In other words, if two or more ex Trade apprentices secure the same marks then preference shall be given on the basis of seniority and for this purpose the Ex-TA who has passed NCTVT examination in earlier batch (NCTVT) shall be senior to the Ex-TA passed in subsequent batch. Thus, the impugned order of the Tribunal drawing inference of preference and treating it as a right of the respondent-candidates to get employment as "Semi-Skilled Workman" without facing selection process to the exclusion of all others, is incorrect, unsustainable and contrary to the law laid down by Hon'ble Supreme Court in the case of State of Karnatka vs. Umadevi (supra). That apart, the Central Government has now amended policy in this regard by policy decision dated 09.05.2016 in line with Section 22 of the Act, 1961 making "Provision of granting five extra marks to Ex-Trade Apprentices in the final merit list of the written examination conducted for a total of 100 marks". The advertisement being notifications dated 20.06.2015 to 26.06.2015 are not in conflict with the Recruitment Rules, 1994 and the aforequoted policy decision of the Ordnance Factory Board and, therefore, the Tribunal has committed a manifest error of law and fact to quash it.
31. For all the reasons aforestated, the impugned common order of the Tribunal dated 06.10.2016 in O.A. No.330/00881 of 2015 (Alok Kumar and others vs. Union of India and others) (subject matter of Writ-A No.4315 of 2017), O.A. No.330/00532 of 2015 (Vicky Bhalla and others vs. Union of India and others) (subject matter of Writ-A No.11792 of 2017), O.A. No.330/01203 of 2015 (Deepak Maurya vs. Union of India and others) (subject matter of Writ-A No.10250 of 2017), O.A. No.330/01204 of 2015 (Sumit Verma and others vs. Union of India and others) (subject matter of Writ-A No.17851 of 2017), O.A. No.330/00801 of 2016 (Aditya Kumar vs. Union of India and others) (subject matter of Writ-A No.11776 of 2017), O.A. No.330/01044 of 2015 ( Aditya Kumar vs. Union of India and others) (subject matter of Writ-A No.9563 of 2017), cannot be sustained and is hereby quashed. All the writ petitions are allowed.
Order Date :- 08.12.2022 NLY