Gauhati High Court
Shyamal Kumar Das & Anr vs The Indian Oil Corporation Limited & 2 ... on 5 May, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) NO. 296 Of 2015
Petitioners :
1. Sri Shyamal Kumar Das,
S/o Late Surnath Ch Das,
C/o Debajit Kumar Mali,
Nabin Nagar, Janapath, Byelane-1,
R. G. Baruah Road, P.O.-Zoo Road,
Guwahati, Kamrup (M),
Assam-781024.
2. Sri Himangshu Gogoi,
S/o Sri Guchai Gogoi,
Vill-Balaibeel (Gogoi Supa),
P.O.-Changchari, Kamrup (R),
Assam-781101.
By Advocates:
Mr. K. N. Choudhury, Sr. Advocate,
Mr. B. Chakraborty.
Respondents:
1. Indian Oil Corporation Limited, represented by its Director, Refinery Division, Indian Oil Corporation, Scope Complex, Core-2, 7, Institutional Area, Lodhi Road, New Delhi-110003.
2. Indian Oil Corporation Limited, Refineries Division, represented by its General Manager, Guwahati Refinery, Noonmati, Guwahati-781020.
3. Officer (Employee Relation) WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 1 of 18 Indian Oil Corporation Limited, Refineries Division, Guwahati Refinery, Noonmati, Guwahati-781020.
By Advocate:
Mr. N. Deka.
WP(C) No. 924 Of 2015 Petitioners :
1. Sri Chandan Kalita, S/o: Late Tezadhar Kalita, R/o: Kalaguru Path, Sarumataria, P.S.: Dispur, Guwahati-36, Assam.
2. Sri Ratul Sarma, S/o: Sri Kumud Ch. Sarma, R/o: Hengrabari, Kali Mandir, P.S.: Dispur, Guwahati-36, Assam.
3. Sri Dhruba Jyoti Sharma, S/o: Sri Lankeswar Misra, R/o: Gandhi Basti, Achala Bhuyan Road, Bye Lane No. 3, Guwahati-3, Assam.
By Advocates:
Mr. K. N. Choudhury, Sr. Advocate, Mr. B. Chakraborty.
Respondents:
1. Indian Oil Corporation Limited, Refineries Division: Guwahati Refinery, Noonmati, Guwahati-781020, Assam.
2. Executive Director, Guwahati Refinery, Noonmati, Guwahati-20.
3. General Manager (H.R.), Guwahati Refinery, Noonmati, Guwahati-20.WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 2 of 18
4. Chief Human Resource Manager, Guwahati Refinery, Noonmati, Guwahati-20.
By Advocate:
Mr. N. Deka.
WP(C) NO. 1133 Of 2015 Petitioner :
Sri Kularanjan Pathak, S/o Sri Tarani Kanta Pathak, House No. 12, Anupam Path Ou Tal, P.S.-Geetanagar, Kamrup (M), Assam-781021.
By Advocates:
Mr. K. N. Choudhury, Sr. Advocate, Mr. B. Chakraborty.
Respondents:
1. Indian Oil Corporation Limited, represented by its General Manager, Guwahati Refinery, Noonmati, Guwahati-20.
2. General Manager, Guwahati Refinery, Guwahati-20.
3. Officer (Employee Relation).
Indian Oil Corporation Limited, Refineries Division, Guwahati Refinery, Noonmati, Guwahati-781020.
By Advocate:
Mr. N. Deka.WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 3 of 18
WP(C) NO. 1137 Of 2015 Petitioner :
Sri Basanta Choudhury, S/o Sri Gopal Choudhury, House No. 06, Patharquari, P.O.-Udayan Vihar, Kamrup (M), Assam-781101.
By Advocates:
Mr. K. N. Choudhury, Sr. Advocate, Mr. B. Chakraborty.
Respondents:
1. Indian Oil Corporation Limited, represented by its General Manager, Guwahati Refinery, Noonmati, Guwahati-20.
4. General Manager, Guwahati Refinery, Guwahati-20.
5. Officer (Employee Relation) Indian Oil Corporation Limited, Refineries Division, Guwahati Refinery, Noonmati, Guwahati-781020.
By Advocate:
Mr. N. Deka.
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN
Date of hearing : 21.04.2015
Date of Judgment : 05.05.2015
WP(C) No. 296 /2015
WP(C) No. 924/2015
WP(C) No. 1133/2015
WP(C) No. 1137/2015 Page 4 of 18
J U D G M E N T AND O R D E R (ORAL)
Heard Mr. K. N. Choudhury, learned Sr. Counsel assisted by Mr. B. Chakraborty, learned counsel for the petitioners and Mr. N. Deka, learned counsel for the respondents.
2. Subject matter of all the four writ petitions being identical, those were heard together and are being disposed of by this common order.
3. Challenge made in this bunch of writ petitions is to the advertisement dated 01.11.2014 issued by the Guwahati Refinery for recruitment of Non-Executives in Guwahati Refinery in various posts covering different trades.
4. Some of the petitioners have completed trade apprentice training in the Guwahati Refinery under Indian Oil Corporation Ltd.
whereas, the rest of the petitioners are still undergoing training under the provisions of the Apprentices Act, 1961. 33 vacancies in different posts such as Jr. Engg. Asstt.-IV (Production), Jr. Engg. Asstt.-IV (Mechanical)-Machinist etc. have been notified. It is stated that candidates who have completed apprentice training in the relevant trade under the Apprentices Act, 1961 would be given age relaxation for the period of training undergone. Qualification and WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 5 of 18 experience for the different categories of posts have been prescribed. In addition to the essential qualifications and experience, it was stated in the advertisement that a candidate should possess the prescribed qualification from a Government recognized Indian University/Institute as a regular course with 60% marks (55% marks for SC/ST) in aggregate. It was further provided that in case of candidates having completed apprenticeship training in the relevant trade under the Apprentices Act, 1961 the period of apprenticeship training in the relevant trade would be considered as experience but no additional age relaxation would be allowed.
5. Subsequently, corrigendum was issued by the Guwahati Refinary reducing the minimum qualifying marks from 60% to 50% (45% for SC/ST).
6. Petitioners do not have 50% marks in their respective courses though they fulfill the other qualifications. Therefore, they became ineligible to apply in terms of the advertisement.
7. With the above grievance, the present bunch of writ petitions have been filed. Contention of the petitioners is that fixation of such high minimum qualifying marks and not providing for any relaxation to the candidates who had undergone or are WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 6 of 18 undergoing apprentice training is arbitrary and irrational keeping in mind the objectives of the Apprentices Act, 1961. Further contention is that in the case of other refineries such as Gujarat and Mathura Refineries which are under the Indian Oil Corporation Ltd. like the Guwahati Refinery, minimum qualifying marks are prescribed at the time of engagement as apprentice so that after undergoing training as apprentice, one is not debarred from appearing in the recruitment test for not having the minimum qualifying marks.
8. On 23.01.2015, notice was issued in WP(C) No. 296/2015. Thereafter, on 26.02.2015 an interim order was passed permitting the petitioners to appear in the written test stated to be scheduled on 01.03.2015 or on any other date. But it was provided that the results of the candidates should not be declared without the leave of the Court.
9. Counter affidavit has been filed on behalf of the respondents. Stand taken is that in the offer of engagement as trade apprentice, it was clearly stipulated that the said offer was not an appointment to a regular post. No indication or promise was given that the candidature of the apprentice trainee would be considered for employment in case of any future vacancy in the Guwahati WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 7 of 18 Refinery. Petitioners having accepted such offer without any objection are estopped from claiming appointment on the strength of their apprentice training. Petitioners had submitted representation dated 06.11.2014 against fixation of minimum qualifying marks of 60% which was duly considered. Independent of such representation, the management decided to reduce the minimum eligibility marks from 60% to 50% to ensure participation of more candidates in the selection. Prescription of minimum qualifying marks has been made to ensure that candidates with good academic record are selected in the recruitment process. Practice followed in the refineries in Gujarat and Uttar Pradesh are not applicable to the Guwahati Refinery in as much as, under the Personnel Manual, every unit of Indian Oil Corporation Ltd. has the discretion of prescribing the qualification, age and other requirements in case of any recruitment process. It is within the domain of the employer to fix the minimum qualifying marks. Fixation of minimum qualifying marks cannot be said to be arbitrary, irrational or discriminatory. Pursuant to the advertisement, 415 applications were received out of which 379 applicants have secured more than 50% marks. Out of the aforesaid 379 applicants, about 133 are either passed out or are undergoing WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 8 of 18 apprentice training. It is contended that the writ petitions are devoid of merit and therefore should be dismissed.
10. Mr. K. N. Choudhury, learned senior counsel for the petitioners submits that there has to be some co-relation or nexus between the eligibility prescription for undergoing apprentice training under the Apprentices Act, 1961 with the eligibility for employment otherwise the very purpose of the Apprentices Act will stand defeated. By virtue of the petitioners undergoing apprentice training, a legitimate expectation has been generated in them that they would get a fair opportunity of employment in view of the training undergone by them. He further submits that since this Court has already permitted the petitioners to appear in the written test, it would only be in the fitness of things if their results are directed to be declared and dependent upon their performance, they should be considered for appointment. He submits that petitioners have not claimed any right of employment on the strength of their apprentice training but has only claimed an opportunity to compete in the selection.
11. Per contra, Mr. N. Deka, learned counsel for the respondents submits that apprentice training and employment are two different things. As a public sector undertaking, Guwahati WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 9 of 18 Refinery is duty bound to provide opportunities for undergoing apprentice training to the eligible candidates in terms of the Apprentices Act, 1961. However, Guwahati Refinery is under no obligation to provide employment to the apprentice trainees unless they are selected in the recruitment process. Undergoing apprentice training would not automatically lead to absorption in the Refinery but the trainees would have to appear and compete in the selection process. Being the employer, Guwahati Refinery has the discretion to fix the minimum eligibility criteria including qualifying marks while conducting recruitment process. Guwahati Refinery is alive to the situation and has accordingly reduced the minimum qualifying marks from 60% to 50% to ensure larger participation. He, therefore, submits that petitioners do not have any enforceable right to claim employment on the strength of their training. They also cannot insist upon the employer i.e. the Guwahati Refinery to do away with the minimum qualifying marks since prescription of eligibility is entirely within the discretion of the employer.
12. Learned counsel for the petitioners have placed reliance on a number of decisions which would be adverted to in the course of the judgment.
WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 10 of 18
13. Submissions made by learned counsel for the parties have been considered. Decisions cited at the bar have been perused.
14. Issue for consideration lies on a very narrow compass. Question is whether there should be any co-relation or nexus between the essential eligibility criteria prescribed for undergoing apprentice training and the eligibility criteria prescribed for employment?
15. To answer the above question, it would be apposite to make a brief reference to the Apprentices Act, 1961 and the Apprenticeship Rules, 1992 framed thereunder. The Apprentices Act, 1961, (briefly "the Act" hereafter) has been enacted to regulate and control the training of apprentices in the country and for matters connected therewith. In the context of industrial development of the country and the ever increasing demand for skilled craftsmen, it was felt necessary to utilize the facilities available in the establishments in the public and private sectors in the training of apprentices and to ensure that such training is in accordance with the programmes, standards and syllabi drawn up by expert bodies. The objective appears to be to provide "on the job training" so that adequate competence and skill required for various occupations are acquired which would lead to suitable employment WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 11 of 18 or self-employment opportunities in various sectors of the economy. In other words, the object seems to be to create a pool of skilled workmen necessary for the economic development of the country.
16. The provisions of the Act were examined by the Apex Court in Uttar Pradesh State Road Transport Corporation and Anr. Vs Uttar Pradesh Parivahan Nigam Shishukhs Berozgar Sangh and Ors. reported in 1995 (2) SCC 1. After examining the various provisions of the Act, the Apex Court observed that those are sufficiently indicative of the fact that the training imparted is desired to be result-oriented and the trainees are treated akin to employees. Taking note of various instructions issued by the Govt. of India from time to time, the Apex Court was of the view that the nation must get the benefit of the time, money and energy spent on the trainees which would be so when they are employed in preference to non-trained direct recruits. It was observed that this would also meet the legitimate expectations of the trainees. In the light of the above, the Apex Court laid down the following guidelines:-
"(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 Vs. N. Hargopal would permit this.WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 12 of 18
(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."
17. From the above it is seen that other things being equal a trained apprentice is required to be given preference over direct recruits. A trainee need not get his name sponsored by any employment exchange. He is entitled to age relaxation to the extent of the period of training undergone by him. Those trained earlier would be treated as senior to those trained later and between the trainees senior should be given preference.
18. In the case of Uttar Pradesh Vidyut Parishad Apprentice Welfare Association and Anr. Vs. State of Uttar Pradesh and Ors reported in (2000) 5 SCC 438, the Apex Court while reiterating the above guidelines laid down in the case of Uttar Pradesh Road Transport Corporation (supra), however, added that the apprentices though entitled to the benefits of the above guidelines would still have to go through the procedure of examination/interview while seeking employment. WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 13 of 18
19. In the case of Uttar Pradesh State Electricity Board Vs Shiv Mohan Singh and Anr. reported in (2004) 8 SCC 402, the Apex Court observed that after successful completion of the training an apprentice has to undergo a test and after he is successful in the test a certificate to that effect is issued to him. It is open for the employer to offer him employment but it will not be obligatory on the part of the apprentice to serve that employer unless there is a specific condition of contract to that effect. If there is no such stipulation in the apprenticeship contract then the employer cannot also be compelled to offer employment to such apprentice. It depends on the terms of the contract. Referring to previous decisions, the Apex Court held that the workman concerned must fulfill the eligibility criteria of appointment even if he has undergone apprenticeship training.
20. There is no dispute to the proposition that it is permissible for the employer to prescribe appropriate qualification in the matter of appointment or promotion to a particular post. It is within the exclusive domain or discretion of the legislature/executive to prescribe such qualification. Courts would be reluctant to interfere with such prescription unless fixation of such eligibility criteria is found to be arbitrary or unreasonable or WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 14 of 18 has been fixed without keeping in mind the nature of service for which appointments are to be made or has no rational nexus with the employment.
21. Having noticed the legal position as above, it must also be borne in mind that in the present bunch of cases, petitioners have not claimed that they should be appointed on the basis of their apprentice training without undergoing any selection or interview. All that the petitioners are saying and there appears to be some merit in their contention, is that there has to be some co-relation or parity in the qualifications prescribed under the Apprenticeship Rules for the different trades and the qualifications prescribed for recruitment to the posts which relates to such trades. Petitioners have only claimed an opportunity to compete in the selection. They have not claimed that they should be straight away employed based on their apprenticeship training. As is seen from Schedule 1 to the Apprenticeship Rules, 1992, essential/desirable educational qualifications are prescribed for selection for undergoing apprentice training in the designated trades. These are the qualifications prescribed to be eligible for undergoing the training. However, for the purpose of recruitment to posts involving the same trades, Guwahati Refinery has fixed additional high minimum qualifying WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 15 of 18 marks. Initially the minimum qualifying marks was fixed at 60% which was reduced to 50%. The fact that the minimum qualifying marks was subsequently reduced by the Guwahati Refinery shows that there can be a situation where further scaling down of the minimum qualifying marks may be required and the Refinery authorities are alive to such a situation and possibility. Another aspect of the matter is that Guwahati Refinery is part of the Indian Oil Corporation Ltd. which also operates a number of other refineries in different parts of the country. The stand taken by the petitioners that Gujarat and Mathura Refineries have prescribed the same qualification for selection for undergoing the apprentice training and for recruitment to posts involving the same trades have not been disputed by the respondents. All that is stated is that Guwahati Refinery is not bound to accept such a system because under the Personnel Manual, each Refinery under Indian Oil Corporation Ltd. is a separate and independent entity.
22. Though technically the respondents may be correct, but Court is of the view that this is a matter which may require re- consideration of the respondents because there is obviously some merit in the system followed by the other Refineries. If there is parity in the eligibility prescription at the entry level for training and WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 16 of 18 at the time of recruitment, it will ensure that those undergoing or had undergone apprenticeship training would not be left high and dry at the time of recruitment for failing to meet the higher eligibility criteria. Besides it will also ensure much wider participation. Moreover, since in terms of the interim order of this Court, the petitioners were allowed to appear in the written test, Court is of the view that it would meet the ends of justice if the results are now declared.
23. Having regard to the above and taking an overall view of the matter, respondents are directed to declare the results and following the declaration of results, if the petitioners are found to be successful, their cases for consequential appointment may be considered by treating them to be eligible candidates.
24. At this stage, Mr. Deka submits that petitioners in WP(C) Nos. 1133/2015 and 1137/2015 did not appear in the written test. Therefore, question of extending the benefit of the Court's order to them does not arise. In the light of the submissions made by Mr. Deka, the above direction may be confined to the petitioners in WP(C) Nos. 296 and 924 of 2015.
25. All the writ petitions are accordingly disposed of. WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 17 of 18
26. No costs.
JUDGE Aparna WP(C) No. 296 /2015 WP(C) No. 924/2015 WP(C) No. 1133/2015 WP(C) No. 1137/2015 Page 18 of 18