The Director Of Employment vs I.C.W.S. Industrial Training on 20 July, 2010

[Cites 3, Cited by 42]

Madras High Court

The Director Of Employment vs I.C.W.S. Industrial Training on 20 July, 2010

Both the writ appeals raise the question as to whether candidates admitted in the first respondent Industrial Training Institute during the academic years 1992-94, 1993-1995, 1994-1996 and 1995-1997 are entitled to issuance of National Trade Certificates for the course of "Wireman Trade" in respect of which no affiliation was granted by the National Council for Vocational Training (in short 'NCVT').

2.Appendix XIX of the Training Manual for ITIs and ITCs provides the procedure for starting New Institutes/Trades. The procedure relating to the private institutes, which is relevant to the issue in question, reads as follows:-

"III. Procedure for Starting New Institutes/Trades

(a)For Private Institutes.

(i) State Director In-charge of the Craftsmen Training Scheme will notify in the leading newspapers of the State to receive particulars in the prescribed proforma (Annexure I) from the agency seeking permission to start training on the pattern of the Craftsmen Training Scheme from the August session of the following year. The last date for the receipt of the applications will be 31st December.

(ii)The State Govt. May charge reasonable fee from ITIs/ITCs seeking affiliation. The revenue so collector may be kept at the disposal of State Director as revolving fund to meet the expenditure for payment of TA/DA to the retired officer appointed as representative of DGE&T for affiliation inspection.

(iii)The applications received by the State Directors after 31st December will not normally be entertained. However, the applications received up to 10th January of the following year could be given consideration, if a late of Rs.100/- is deposited by applicants.

(iv)The State Director will scrutinise the applications and after judging their authenticity and financial position, shall convey provisional permission by the end of February to the deserving applicant only for starting the Institute and ask them to make all necessary arrangement.

(v) The Management of the Institute shall make all necessary arrangements and provide infrastructural facilities for the proposed trades and units as per the prescribed norms by the end of June.

(v)(a) An institute seeking affiliation has to supply the information regarding infrastructure and instructor available to the institute in Annexure III to the State Director. The state shall verify the availability of necessary infrastructure & availability of instructor at the institute and if institute is found a fit case for considering for affiliation to NCVT, may constitute a Standing Committee and get the Institute inspected by 15th July.

Site plan & building drawing indicating various section workshop etc. The space earmarked for each trade both already affiliated and proposed for affiliation at the institute.

(b) Joint Action Plan State Directors dealing with Craftsman Training Scheme in consultation with coordinating officers of DGE&T for the region, i.e. Directors of ATIs, RDATs, FTI, CSTARI as the case may be, shall prepare a Joint Action Plan for affiliation inspections of ITIs and ITCs for the State/UT concerned. A panel restricted only to the retired class I Gazetted Technical Officer from DGE&T may be nominated as DGE&T representative on the Standing Committee inspection team. However the TA/DA to these officer would be born by the respective State Directors.

(c) Cut off date: 30th July of every year have been fixed a cut off date by which the State Directorates should identify and intimate the number and details of ITIs/ITCs to be considered for affiliation during the following academic year.

(vi)The Standing Committee after verifying available infrastructural facilities and the arrangements made for starting training may recommend affiliation for the deserving trades/units only, clearly indicating the conditions, if any, in their recommendations.

(vii)The inspection report may be scrutinized in DGE&T, for ascertaining compliance of procedure. The affiliation of the trades/units recommended by the standing committee shall be considered. Only those trades/units which are found out to the prescribed norms shall be recommended by DGE&T and final orders conveying grant of affiliation shall be issued by the Secretary, NCVT after obtaining approval from the subcommittee of the NCVT dealing with affiliation.

(viii)The time schedule for various activities mentioned above, if need arises be altered by the State Directors at their end but the final date of submission of proposal to DGE&T Hqrs by 20th August of each year should be adhered to.

(ix)Check list for forwarding SCIR/DIRs to DGE&T (HQ) for seeking affiliation at Annexure III B. ..... "

3.The above procedure, in nutshell, contemplates that the State Director In-charge of Craftsmen Training should notify calling for applications in the prescribed proforma from the agency seeking permission to start training on the pattern of the Craftsmen Training Scheme from the August session of the following year. Annexure I provides the proforma, which requires specific mention of the trades, number of units and the proposed date of starting the institution including the staff proposed to be appointed and the accommodation proposed to be provided. The last date for the receipt of applications will be 31st December. The applications received will be scrutinized by the State Director and on his satisfaction as to the authenticity and financial position of the applications, he shall convey provisional permission. The management of the institutes should make all necessary arrangements to provide infrastructural facilities for the proposed trades/units and the State Director shall verify the availability of necessary infrastructure and availability of instructors at the institute and if he is satisfied with such facilities, he may constitute a Standing Committee and get the institute inspected. The Standing Committee will ensure the availability of site plan and building drawing indicating various section, workshop, etc. and the space earmarked for each trade both already affiliated and proposed for affiliation. On receipt of the recommendations of the Standing Committee, the State Director in consultation with the coordinating officers, who are incharge of the region, shall prepare the Joint Action Plan for affiliation inspection of ITIs and ITCs for the State and Union Territory concerned. A cut-off date was fixed for the State Director to report to the NCVT as to the details of ITIs and ITCs to be considered for affiliation during the following academic year. Thereafter, the report of the Standing Committee will be scrutinized by the DGE&T for grant of affiliation and only such of those trades/units which are found out to the prescribed norms shall be recommended by the DGE&T and final orders conveying grant of affiliation shall be issued by the Secretary, NCVT after obtaining approval from the subcommittee of NCVT dealing with affiliation.

4.Even while the State Director seeks permanent affiliation by forwarding the inspection report to the Secretary, NCVT, New Delhi, a provision for grant of permission to the management to admit the candidates/ trainees is also made under the Training Manual and the same reads as follows:-

"The State Director may seek permanent affiliation by forwarding the inspection report (Annexure III) to the Secretary, NCVT, New Delhi. The State Director need not wait for any instruction in this matter from Secretary, NCVT. He may grant permission to the management of the Institute to admit trainees in the trades/units which have been recommended for permanent affiliation by the Standing Committee. It should however be made clear that in case permanent affiliation is not granted, final trade test and certification would be responsibility of the respective SCVT."

As we are concerned about the candidates of the additional unit for wireman trade course in the first respondent institute, the above instructions are relevant. The grant of affiliation, be it provisional or permanent, shall be governed by the Training Manual issued by the NCVT and such instructions are binding not only on the institutes and the candidates, who are admitted in those institutes, but also on the State Director and more particularly on the NCVT as well. In terms of sub-clause (iii), applications should be filed before the State Director on or before 31st December and no application will be entertained if it is filed after that date. By 30th July of every year, the State Director should identify and intimate the number and details of ITIs and ITCs to be considered for affiliation during the following academic year. On such identification, the recommendations of the Standing Committee should also be intimated to the DGE&T for ascertaining compliance of procedure. The DGE&T shall recommend to the Secretary, NCVT for obtaining the approval from the Subcommittee for affiliation. Though no prescribed time is mentioned for the Secretary to NCVT to consider and pass orders on the application for affiliation, in the wake of clause v(c) fixing a cut off date as 30th July of every year for the State Director to send the recommendation for affiliation for the following year, the Secretary to NCVT has to necessarily dispose of that application even before the commencement of the next academic year. This schedule is to be strictly followed. That apart, by the above instructions, even an unit which has been provisionally affiliated by the State Director may be permitted to admit candidates/trainees in the trades/units which have been recommended for permanent affiliation to the Secretary, NCVT, New Delhi. The power of the State Director to grant permission is with an absolute condition that in case permanent affiliation is not granted, final trade test and certification would be the responsibility of the respective SCVT, viz., State Council for Vocational Training. In other words, by virtue of the provisional affiliation granted by the State Director and the consequential permission to admit the trainees pending permanent affiliation, no right is conferred on the trainees who underwent the training pursuant to the permission granted by the State Director to seek for trade certificate from the NCVT, in the absence of affiliation.

5.Coming to the facts of the case on hand, the first respondent-institute, viz., I.C.W.S. Industrial Training Institute was established in the year 1987 for imparting certain trades/courses of study. In the year 1988, an application to the second respondent was made for grant of affiliation and permission to impart the courses of study, viz., Mechanic Motor Vehicle 1 + 1 units, Fitter 2 + 2 units and Cutting and Tailoring 1 unit. After appropriate inspection, the second respondent granted permission for admission of trainees to the above said courses, pursuant to which, trainees were admitted and they were also allowed to take up their exams, the results were also published and ultimately, they were issued with the Provisional National Trade Certificate by the second respondent and consequently, National Trade Certificate was also issued to them.

6.During the year 1991, the first respondent institute applied for grant of affiliation to an additional unit for the Wireman Trade course of study, for which also, the second respondent, on inspection, granted permission and also recommended for grant of affiliation by the NCVT. On the basis of the said permission, the first respondent-institute admitted trainees for the 1991-1992 session and the trainees wrote their exams, got their results published and they were also issued with Provisional National Trade Certificates. As the institute was not granted permanent affiliation for the additional unit in Wireman Trade, the trainees who underwent the course during the academic years 1992-1994, 1993-1995, 1994-1996 and 1995-1997, were not issued the National Trade Certificates. The institute has also made several representations and a comprehensive representation dated 23.02.2006 was also made and since the same was not considered, the institute has approached this Court by filing the writ petition seeking for a direction to the Director General, Directorate of Employment and Training, Government of India, Ministry of Labour and Employment, New Delhi, to issue National Trade Certificates in respect of the trainees who under took the exams for the course of Wireman Trade during the relevant academic years.

7.The institute has mainly contended that for the earlier academic years, the candidates admitted in the institute were permitted to write examinations and were also issued with National Trade Certificates. Only for the candidates from the year 1992 onwards, such certificates were not issued and those candidates alone were discriminated. The said challenge was found favour with the first respondent-institute by the learned single Judge and consequently, the writ petition was allowed with a direction to issue National Trade Certificates, giving rise to the present writ appeals.

8.The scheme of the training contemplates basically, conferring a power on the State Director to grant provisional affiliation, granting permission to such of those institutes who have been given provisional affiliation, to admit trainees and granting of permanent affiliation by the NCVT, on satisfying with the report of the Standing Committee. A clear demarcation is made as to the entitlement of the candidates for the trade certificates. Such of those candidates who were admitted pursuant to the provisional affiliation and the permission granted by the State Director, will be entitled to issuance of Trade Certificate from the State Council for Vocational Training and they are not entitled to seek for a National Trade Certificate from the NCVT. Only such of those candidates who were admitted on permanent affiliation by the NCVT are entitled to such a certificate from the NCVT and not otherwise. It is true that students of an unaffiliated institute cannot seek for either Course Completion Certificate or Degree/Diploma certificate, as the case may be, from the affiliating body (see C.B.S.E. v. P.Sunil Kumar, (1998) 3 Scale 525). The NCVT, being the affiliating body for issuance of National Trade Certificate, is obligated to issue such a certificate in the event that institute is affiliated to that body and more particularly, the trade/course of study, which was affiliated.

9.The contention of the institute appears to be that for the earlier years, the institute though was not granted permanent affiliation by the NCVT, the candidates who underwent the training in those years, were granted certificates by the NCVT and therefore, the NCVT cannot refuse issuance of such certificate for the subsequent academic years. In our opinion, this submission cannot be accepted. It is the contention of the appellants that those certificates were issued but by mistake. Such a mistake or an illegal act committed by certain officials cannot be made the basis for compelling the Government to issue similar certificates in other cases, as it would amount to perpetuating the illegality. If some persons derive the benefit illegally, other similarly circumstances cannot claim the same benefit on the ground of equality, as that would amount to perpetuating the illegality through judicial process, which the Court cannot do. (Refer 1997 (1) SCC 35, Jaipur Development Authority v. Daulat Mal Jain and 2009 (13) SCC 635, State of Madhya Pradesh v. Ramesh Chandra Bajpai). Therefore, in our opinion, when the instructions are specific and binding in nature, merely because some of the candidates, who have undergone the training courses, were issued with National Trade Certificates even though the trade/course underwent by them was not affiliated, if the direction as sought for is granted, it would amount to a direction to the authorities to commit the same mistake again, which is impermissible in law.

10.One of the objections raised by the appellants is that the first respondent-institute had approached the Court with inordinate delay, inasmuch as the issue pertains to the issuance of National Trade Certificate to the candidates who were admitted in the year 1991, but the writ petition came to be filed in the year 2007. This contention cannot be accepted, as the writ petition was entertained and admitted by this Court and was kept pending till it was disposed of by the impugned order under appeal dated 13.12.2007. Hence, the writ petition cannot now be dismissed on the ground of delay and laches.

11.This takes us to the question as to whether on the given facts and circumstances of the case, the candidates of the first respondent-institute are entitled to National Trade Certificates. This question came up for consideration before the Division Bench of this Court in W.A.Nos.735 to 737 of 2006 (between The Director of Employment and Training, Chennai, vs. The Correspondent, Indira Gandhi Industrial Training Institute, Mannargudi and another). In the said case, the Division Bench has relied upon the earlier Division Bench judgment of this Court reported in 1997 (3) L.W. Page 1 (St. Stephens Teacher Training Institute, Velayutha Nagar, Kanyakumari Dist. Rep. By its Manager/Correspondent, V.Thangaraj vs. The Director of Government Examinations, Chennai-6 and another), wherein it has been observed as follows:-

"7. Concedingly the application was made within the stipulated period and has not been decided. It is categorically discernible from reading of Section 14, that it provided for a deemed recognition i.e., in case of the institutions which were already recognised before the coming into force of the Act, it would continue as such for six months, during which one is required to apply for recognition till the disposal of the application by the Regional Committee if applied within the period provided by the Act. Thus it provides a statutorily deemed recognition of the institution during the pendency of the application before the Regional Committee. It is the recognised principle of interpretation of statutes that provision of legislation are to be read in consonance with each other so that they may be operative in their respective field and will not render any statutory provision as obsolete. Deemed recognition has to be given its logical meaning. Consequently in our view the only interpretation which is comprehensible is, that for the purposes of Section 16 the deemed recognition provided by Section 14 shall have to be taken as recognised institution till it is either refused or any other order passed by the Regional Committee. In case interpretatively it is held that during the pendency of application, it would be deemed to be 'refused', it would run contrary to the express provisions of Section 14. Protection provided for six months or till the date of the decision of the application by the Regional Committee by the proviso to Section 14 would be rendered as obsolete. The students having already studied in a recognised school would be left high and dry, and this time spent in studies would go waste which cannot be said to be either the object of the Act or could be intention of legislation. In ordinary course legislature does not denude a person of what one has already acquired, which is not the object of the Act. The institution as well as recognition is meant for the students. It cannot be said that the institution may go on gathering benefits like aid etc., and the students for whose benefit such benefits are conferred by the State on the institution would not be there, to reap its fruits. It is incomprehensible. In view of the observations made above, the respondents are directed to permit the students to take the examination and would continue treating the petitioner institution as recognised till this application for recognition is finally disposed of by the Regional Committee."

Ultimately, the Division Bench by judgment dated 23.04.2009 has observed that for the default committed by the officers, who are otherwise obligated to consider the application in time, the students should not be affected since they could not be made permanent by their respective employers for want of National Trade Certificates and accordingly, directed issuance of National Trade Certificates.

12.Coming to the case on hand, as already stated, the first respondent-institute had applied for affiliation as early in the year 1991 and also obtained provisional permission from the State Director. In fact, the Standing Committee inspected the institute and recommended for grant of permanent affiliation as early as on 28.8.1991. This was communicated to the Director of Training and Secretary to NCVT by the State Director on 31.12.1991. A further reminder has also been sent on 9.9.1993 and as no response was received, further communication was also made by the State Director to the Director of Training and Secretary to NCVT on 19.6.1997. There has been total failure on the part of the Director of Training and Secretary to NCVT in disposing of the applications. It is not as if that the institute did lack of any infrastructural facilities and instructors as well. The candidates had been admitted on the strength of provisional affiliation granted by the State Director and in fact, those candidates have also been issued with Provisional National Trade Certificates. By virtue of those certificates, the candidates have also secured employment.

13.The procedure for complying with the disposal of affiliation application is time bound and in the event such application is made and the Standing Committee also recommends such an application, it is expected from the National Council for Vocational Training to consider and dispose of the application in time, as otherwise the candidates who are admitted on the strength of the provisional affiliation would be certainly deprived of. It is seen that the application for affiliation made in the year 1991 was considered by the DGE&T only in the year 1997 and the same was not recommended. In our view, certainly such an attitude of the officers who are obligated to dispose of the application in time keeping the interest of the candidates admitted in the institute cannot be a ground for later on denying the benefit of the course by the candidates. The candidates, who were admitted, would certainly have legitimate expectation that they would be issued with National Trade Certificate. It is in these peculiar facts and circumstances of the case, equity requires to make the candidates entitled for National Trade Certificate, particularly when they have been issued with a provisional National Trade Certificate and on the strength of such certificate, they were also given employment. In this context, we may also refer to the observations of the Division Bench made in W.A.Nos.735 to 737 of 2006 that the candidates are not from any effluent background and they had come from downtrodden status and they should not be deprived of at this stage.

14.For our foregoing conclusion, we confirm the order of the learned Judge made in W.P.No.6209 of 2007 dated 13.12.2007 and dismiss the writ appeals. No costs. Consequently, connected M.Ps. are also dismissed.

sra To

1. The Director of Employment & Training, Guindy, Chennai.

2. The Director General, Directorate of Employment & Training, Government of India, Ministry of Labour & Employment, Sharam Shakthi Bavan, New Delhi

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