Allahabad High Court
Veerendra Singh And 13 Others vs Union Of India And 4 Others on 17 February, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- WRIT - A No. - 21581 of 2022 Petitioner :- Veerendra Singh And 13 Others Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Seemant Singh,Pankaj Kumar Ojha Counsel for Respondent :- A.S.G.I.,Abhishek Srivastava,C.S.C. Hon'ble Jaspreet Singh,J.
1. Heard Shri Pankaj Kumar Ojha, learned counsel for the petitioners and Shri Manu Mishra holding brief of Shri Abhishek Srivatava, learned counsel for the respondents no. 3 and 5 as well as Shri S.K. Dubey, learned Additional Chief Standing Counsel for the respondent-State.
2. In pursuance of the order dated 25.01.2023, the learned counsel for the respondents has filed a short-counter affidavit, which is taken on record. Learned counsel for the petitioner does not wish to file any rejoinder affidavit, hence, with the consent of the learned counsel for the parties, the Court proceeded to hear and decide the matter at the admission stage itself.
3. By means of the instant petition, the petitioners pray for the following reliefs, which read as under:-
"(I) issue a writ, order or direction in the nature of certiorari quashing the impugned Advertisement No.10/Vi.Se.Aa/2022/ Technician (Electricity) dated 16.09.2022 published by Secretary, Electricity Service Commission, SLDC Campus, Vibhuti Khand, Phase-2, Gomti Nagar, Lucknow (Annexure No.16)/ (II) issue a writ order or direction in the nature of mandamus directing the respondent authorities to formulate its own policy for recruiting apprentice who has completed the period of Apprenticeship Training in his establishment for absorption/appointment of the petitioners."
4. The contentions of the learned counsel for the petitioners is that the petitioners have completed their apprenticeship under the provisions of the Apprentices Act, 1961 (for short, "the Act of 1961") in different years, but the respondents-authorities have not framed policy in terms of Sub-rule (1) of Rule 22 of the Act of 1961. It is subsequently that some of the petitioners filed WRIT-A No.15507/2018 (Mahaveer Singh and 50 others v. Union of India and 6 others), by which directions were issued to formulate policy vide order dated 30.03.2019.
5. It is also the contention that the respondents-authorities have issued an Advertisement for recruitment No.10/2022 Technician (Electricity) and in the said advertisement, there is no provision for providing the preference to the petitioners, who have completed their apprenticeship with the respondent no. 3-institution.
6. It has also been submitted that in the case of the petitioners, who have completed their apprenticeship with the respondent no. 3-institution, the institution is bound to offer appointments to them, which has not been done rather the petitioners are required to participate in the general recruitment process which runs against the mandate as provided under Section 22 of the Act of 1961 and for the said reason, the petitioners are discriminated and there is violation of the provisions of the Act of 1961 which renders the impugned Advertisement No.10/2022 Technician (Electricity) dated 16.09.2022 bad and liable to be quashed.
7. It is taking note of the aforesaid submissions, the Court had required the learned counsel for the respondents no. 3 and 5 to file a short-counter affidavit, which has been placed on record today.
8. Shri Manu Mishra, learned counsel for the respondents no. 3 and 5, on the other hand, has pointed out that the submission of the learned counsel for the petitioners is not quite correct. It has been submitted that the respondent no. 3-institution has already formulated its own policy in terms of the directions issued by this Court on 06.07.2019, a copy of which has been provided to the Court for its perusal.
9. It has further been submitted that the other contentions of the petitioners that they have not been granted benefits in terms of the policy in the Advertisement is also not quite correct and specific instance has been pointed out by the learned counsel for the respondent no. 3 by taking the Court to the advertisement which has been brought on record as Annexure No.16. It has been specifically pointed out that in Clause-6 Sub-Clause (Gha), it is clearly provided that all those persons who have completed the age as prescribed in the advertisement, but have undergone the apprenticeship shall be given the benefit of two years in age relaxation for the period under training in terms of the provisions of the Act of 1961.
10. Further, attention has been drawn to Clause-11 (A) which relates to selection and is in two parts and in the second part, special condition (ii) it has been provided that all the candidates who appear in examination of 200 marks and in case of any tie between two candidates, who have secured the same marks, the person who has acquired apprenticeship and is higher in the seniority list amongst apprentices, will be given preference and further in case there is more than one candidate who has completed the apprenticeship, then the person older in age, will be given preference.
11. It is thus, submitted that in terms of Section 22 of the Act of 1961, the policy has been formulated and also duly notified in the advertisement as such it cannot be said that the advertisement violates the provisions of the Act of 1961. It is also submitted that it is not quite correct to argue that the petitioners are to be given the employment as a matter of right in terms of the Act of 1961 and as such the relief prayed do not survive and the petition deserves to be dismissed.
12. Having considered the aforesaid submissions and before adverting to the submissions, it will be appropriate to take a glance at Section 22 of the Act of 1961, which read as under:-
"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 or remuneration agreed to between the apprentice and the employer."
13. Having noticed the aforesaid, it would indicate that sub-section (1) of Section 22 clearly provides that every employer shall formulate its own policy for recruiting any apprentice who has completed the period of apprenticeship training in his establishment. This is merely an enabling provisions and mandates that the employer to formulate its own policy. In the instant case the policy has been formulated on 06th July, 2019.
14. Learned counsel for the petitioners could not dispute that the respondents-Power Corporation has already formulated its own policy on 06.07.2019. It will also be relevant to notice that the policy dated 06.07.2019 reads as under:-
" कार्यालय ज्ञाप मा० उच्च न्यायालय इलाहाबाद खण्डपीठ में योजित याचिका सं०-C-15507 of 2018 श्री महावीर सिहं एवं अन्य बनाम यूनियन ऑफ इण्डिया में दिनांक 30.03.2019 को मा० उच्च न्यायालय इलाहाबाद खण्डपीठ द्वारा पारित आदेश के अनुपालन में उ० प्र० पावर कारपोरेशन लि० के निदेशक मण्डल द्वारा शिशिक्षु अधिनियम 1961 के अन्तर्गत उ० प्र० पावर कारपोरेशन लि० एवं उसके सहयोगी वितरण निगमों एवं केस्कों में प्रशिक्षण प्राप्त करने वाले अभ्यर्थियों को सीधी भर्ती के अवसर पर अन्य अभ्यर्थियों की अपेक्षा वरीयता दिये जाने, आयु सीमा में छूट दिये जाने तथा सेवायोजन कार्यालय से उनके नाम मगाँये जाने या पंजीकरण कराये जाने की शर्त को शिथिल किये जाने के सम्बन्ध में निम्नवत नीति निर्धारित की जाती है -
(1) उ०प्र० पावर कारपोरेशन लि० से शिशिक्षु अधिनियम (Apprentice Act) 1961 के अन्तर्गत01 वर्ष का प्रशिक्षण प्राप्त अभ्यर्थियों को कारपोरेशन में सीधी भर्ती के पदों पर चयन परीक्षा में प्रतिभाग करने पर निम्नवत वरीयता दी जायेगी -
(a) भर्ती परीक्षा में समान अंक प्राप्त करने वाले अभ्यर्थियों में शिशिक्षु अधिनियम के अन्तर्गत प्रशिक्षण सफलतापूर्वक पूर्ण करने वाले अभ्यर्थी को अन्य अभ्यर्थी के सापेक्ष वरीयता दी जायेगी।
(b) भर्ती परीक्षा में समान अंक प्राप्त करने वाले अभ्यर्थियों में शिशिक्षु अधिनियम के अन्तर्गत पहले प्रशिक्षण पूर्ण करने वाले अभ्यर्थी को वरीयता दी जायेगी।
(c) भर्ती परीक्षा में समान अंक प्राप्त करने एवं एक ही वर्ष में प्रशिक्षण पूर्ण किये अभ्यर्थियों से अधिक उम्र के अभ्यर्थी को वरीयता दी जायेगी।
(2) आई०टी०आई० शिशिक्षुओं एव अभियन्त्रण स्नातक एवं डिप्लोमाधारी शिशिक्षुओं से समस्त सम्बन्धित कार्यो को किये जाने हेतु निम्न व्यवस्था लागू की जायेगी -
(a) आई०टी०आई० शिशिक्षुओं हेतु आई०टी०आई० शिशिक्षुओं से सम्बन्धित कार्य शिशिक्षु प्रोत्साहन योजना के अन्तर्गत विकसित वेबसाइट WWW.apprenticeship.gov.in के माध्यम से किया जायेगा।
(b) अभियन्त्रण स्नातक एवं डिप्लोमाधारी शिशिक्षुओं हेतु अभियन्त्रण स्नातक एवं डिप्लोमाधारी शिशिक्षुओं से सम्बन्धित समस्त कार्य शिशिक्षु प्रशिक्षण बोर्ड (उत्तरी क्षेत्र) की वेबसाइट WWW.BOATNR.org के माध्यम से किया जायेगा।
(3) आयु सीमा मेें छूटः - कारपोरेशन एवं इसके वितरण निगमों के अन्तर्गत 01 वर्ष का प्रशिक्षण प्राप्त अभ्यर्थियों को सामान्य अभ्यर्थियों के लिये निर्धारित अधिकतम आयु सीमा में 01 वर्ष की छूट अनुमन्य होगी।
(4) उ०प्र० पावर कारपोरेशन लि० प्रशिक्षण प्राप्त प्रशिक्षुओं की सूची तैयार करायेगा तथा भर्ती परीक्षा में समान अंक प्राप्त करने वाले अभ्यर्थियों में शिशिक्षु अधिनियम 1961 के अन्तर्गत पहले प्रशिक्षण पूर्ण करने वाले अभ्यर्थियों को वरीयता दी जायेगी।
निदेशक मण्डल की आज्ञा से"
15. From the aforesaid, it would indicate that in terms of the policy, the policy clearly provides that the persons, who have completed their apprenticeship would have to compete for the recruitment and they would be given preference as provided in Clause-(1)(a)(b) and (c) and Clause (2) which have been reproduced hereinabove.
16. Now in the above backdrop if sub-section (2) of Section 22 of the Act of 1961 is seen, it would reveal that sub-section (2) start with a non-obstante clause and indicates that it is only where there is a condition in contract of apprenticeship that after the successful completion of apprenticeship training, the employer shall on such completion be bound to offer such employment to the apprentices. This would only indicate that the aforesaid condition is only applicable if the contract of apprenticeship provides for such a condition only then the employer is bound to offer the employment. It cannot be said or mean that it is a matter of right that the persons who have completed the apprenticeship shall be entitled to the employment without going through the recruitment process.
17. In view of the aforesaid, the contentions of the learned counsel for the petitioners that since the petitioners have completed apprenticeship, they are bound to be offered the appointment as a matter of right does not appear to be based on sound reasoning or correct interpretation of the aforesaid provision.
18. Learned counsel for the petitioner has also been drawn the attention of the Court to the decision of the Apex Court in the case of U.P. State Road Transport Corporation v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh, reported in (1995) 2 SCC 1 and it has been urged that in Paragraphs-12 and 13 of the aforesaid decision, the Court has laid down the dictum and guidelines and the action of the respondents no. 3 and 5 are contrary to it. A copy of the said decision has been placed on record as Annexure No.4 to the petition and since reliance has been placed on Paragraph-12 and 13, the same is being reproduced hereinafter for ready reference:-
"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 [(1987) 3 SCC 308 : 1987 SCC (L&S) 227 : (1987) 4 ATC 51 : AIR 1987 SC 1227] 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.
13. Insofar as the cases at hand are concerned, we find that the Corporation filed an additional affidavit in CA Nos. 4347-4354 of 1990 (as desired by the Court) on 20-10-1992 giving position regarding vacancies in the posts of conductors and clerks. If such posts be still vacant, we direct the Corporation to act in accordance with what has been stated above regarding the entitlement of the trainees. We make it clear that while considering the cases of the trainees for giving employment in suitable posts, what has been laid down in the Service Regulations of the Corporation shall be followed, except that the trainees would not be required to appear in any written examination, if any provided by the Regulations. It is apparent that before considering the cases of the trainees, the requirement of their names being sponsored by the employment exchange would not be insisted upon. Insofar as the age requirement is concerned, the same shall be relaxed as indicated above."
19. Having taken note of the aforesaid, it would be clear that even the Apex Court had only directed to accord preference to be given which has been incorporated in the policy as formulated by the Power-Corporation, there is nothing to indicate that any apprentices is required to be provided employment as a matter of right, without completing in the recruitment process. For the aforesaid reasons, the submission of the learned counsel for the petitioners does not hold water.
20. However, this aspect of the matter was considered by a Division Bench of this Court in Nanhey Singh and 51 others v. State of U.P. and 3 others, in Special Appeal Defective No.110/2015, decided on 06.02.2015 which has relied upon a Full Bench decision of this Court in Arvind Gautam Vs. State of U.P. and others. 1977 (17) LCD 1126 and para 11 of the Full Bench of Arvind Gautam (supra) reads as under:-
"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 employees 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."
21. Even though the decision is prior to the date of policy formulated but the dictum and ratio applies with full vigour. In light of the aforesaid discussions, the petition is sans merit. Accordingly, it is dismissed. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 17.02.2023 Rakesh/-