Central Administrative Tribunal - Ernakulam
Mohammed Hashim A.C vs Union Of India Represented By on 7 August, 2013
Central Administrative Tribunal
Ernakulam Bench
OA No.177/2013
Wednesday, this the 7th day of August, 2013.
CORAM
Hon'ble Dr.K.B.S.Rajan, Member (J)
Hon'ble Mr.K.George Joseph, Member (A)
Mohammed Hashim A.C., age 25 years
S/o Ahammed, T.
Working as Oilman, Electrical Sub Division
Union Territory of Lakshadweep, Amini-682 552.
Residing at Ayshechetta, UT of Lakshadweep
Kadamath-682 556. Applicant
(By Advocate: Mr.N.Unnikrishnan)
Versus
1. Union of India represented by
the Secretary to the Govt of India
Ministry of Personnel & Public Grievances
Department of Personnel & Training
New Delhi-110 001.
2. The Administrator
UT of Lakshadweep, Kavaratti-682 555
3. The Executive Engineer (Electrical)
UT of Lakshadweep, Kavaratti-682 555
4. The Director (Services)
Union Territory of Lakshadweep
Kavaratti-682 555
5. The Departmental Promotion Committee represented by
the Chairman, Secretariat
UT of Lakshadweep, Kavaratti-682 555.
6. Shemmone T
S/o Mohammed P.,
Tharakal House
Kadamath, Lakshadweep-682 556. Respondents
(By Advocate: Mr.Varghese P.Thomas, ACGSC (R1)
Mr.S.Radhakrishnan (R2-5)
Mr.M.R.Hariraj (R6)
This application having been heard on 2nd August, 2013, the Tribunal
on 07.08.2013 delivered the following order:-
O R D E R
Hon'ble Dr.K.B.S.Rajan, Member (J) Whether apprenticeship training could be treated as 'experience' or 'service' as per the notification issued by the official respondents in respect of appointment as Junior Engineer (Elec) vide Annexure A-1 as also Annexure A-11.
2. Brief facts: The Lakshadweep Administration has published a notice dated 03.09.2011 vide Annexure A-1, inviting applications for appointment to the post of Junior Engineer (Elec) on regular basis in the pay scale of Rs.9300-34800 plus G.P. of Rs.4,200/-. The educational qualification prescribed in the said notice which is on the basis of the stipulations vide Recruitment Rules, at Annexure A-12, is as under:-
"Essential: Degree in Electrical Engineering/Electrical and Electronics Engineering/Mechanical Engineering of a recognized University or equivalent or Diploma in Electrical Engineering/Electrical and Electronics Engineering/Mechanical Engineering of a recognized Institution or equivalent with 2 years experience in any one of the following field under Central Government/State Government/Government undertaking:
1. Running and maintenance of DG sets.
2. Generation, Transmission and Distribution of Electricity.
3. Internal Electrification of buildings.
Desirable: Preference will be given to those who have satisfactorily completed apprenticeship training in Lakshadweep Electricity Department"
3. Similarly, yet another notification was issued on 20.06.2012 for a different post of the same grade and designation, and not the one for which the earlier notification was issued. Annexure A-11 refers.
4. The applicant is one of the aspirants to the said post and accordingly he had applied in response to the said two notifications. He possesses the following qualifications:-
(a) S.S.L.C.
(b) Diploma in Electrical and Electronics Engineering from State Board of Technical education, Chennai in FIRST CLASS.
(c) Awarded Certificate of competency Wireman (Exemption) by the Govt of Kerala.
(d) Possesses Electrical Wireman permit.
(e) Unpaid Apprenticeship in the Electrical Sub Division, Kadmat w.e.f. 22-07-2009 till 30-06-2010.
(f) Functioned as Oilman on contract basis from 01-07-2010 till 22-
06-2011 in the Electrical Sub Division, Kadmat.
(g) Functioning as Oilman in the Electrical Sub Division, Amini Island from 23-06-2011 till now.
5. It appears that there was a checklist published on 07-11-2012 in which the applicant has been reflected with certain remarks. And, the applicant has filed his representation, referring to the said notice dated 07- 11-2012 and has pointed out certain alleged errors in the checklist and requested for reconsideration of his case. Annexure A-7 refers. The respondents issued a revised checklist vide Annexure A-8 dated 31-01.2013 in which the remarks contained that the applicant has not fulfilled the requisite two years experience.
6. As the applicant could not get any order relating to his appointment in respect of the two notifications, the applicant caused a legal notice issued on 18-12-2012 inviting the attention of the respondents to the two applications filed by the applicant and stating that the applicant who has been working right from 01-07-2010 till date (18-12-2012), the date of issue of the legal notice, preceded by unpaid apprentice in the Electrical Department of Lakshadweep Administration from 14-07-2009 to 30-06-2010 (for which preference shall be given as per the notices referred to above) and as such, he fulfills the requisite qualification of two years and also has at his credit the said apprenticeship training. Annexure A-9 refers. In response to the same, the respondents have stated that the applicant's apprenticeship could fall under the preferred qualification and not as experience. The applicant has filed this OA challenging the aforesaid Annexure A-8 and A-10 communication seeking the following reliefs:-
a) Call for the original records leading to the issuance of Annexures A8 and A10.
b) Declare that the denial of selection and appointment to the post of Junior Engineer (Electrical) as evidenced in Annexure A8 and A10 is bad in law.
c) Issue appropriate order quashing Annexures A8 and A10 in so far as it denies selection and appointment to the post of Junior Engineer (Electrical)
d) Declare that the applicant is entitled to be considered for selection and appointment to the post of Junior Engineer (Electrical) pursuant to Annexure A1 notification.
e) Issue appropriate order or direction to the respondents to issue necessary orders appointing the applicant as Junior Engineer (Electrical) within a reasonable time.
f) To issue such other appropriate orders or directions as this Hon'ble Tribunal may deem fit, just and necessary.
7. At the time of initial hearing, the Tribunal by its order dated 04-03- 2013 directed the respondents that pending further consideration of the matter, actual appointment pursuant to Annexure A-1 and A-11 shall be kept in abeyance.
8. The above clamp imposed affected one Shri T.Shemmone, the person who has secured the highest marks compared to all those who could fulfill all the conditions of appointment. As such, he has filed a miscellaneous application for impleadment as respondent and the same having been allowed, reply was filed by the said private respondent. The official respondents have also filed their reply.
9. In their reply, the official respondents 2 to 5, have stated that the applicant does not fulfill the conditions of two years in respect of Annexure A-1 application whereas he is eligible as per the second notification dated 26-06.2012 (Annexure A-11). In so far as the first notification is concerned, as per the cut off date, the applicant's unpaid apprenticeship has been taken as desirable qualification but since he lacked the requisite two years' experience, he was not eligible for being considered against the said notification. It has also been stated in the reply to the legal notice that the applicant does fulfill the qualification requirement including preference, as per the later notification dated 26-04-2012.
10. In his reply, the private respondent submitted that in so far as his case is concerned, he had responded to the first notification of 03-09-2011 (Annexure A-1) read with A-12 Recruitment Rules. The private respondent has submitted that in the wake of the first notification (in response to which he had filed his application), the official respondents have published a checklist, vide Annexure A-6(d) dated 02-04-2012 and therein, in respect of the applicant it was indicated that he has not fulfilled the requisite experience, though he had scored 66.90 marks. In so far as the private respondent is concerned, he had fulfilled all the conditions and amongst those who fulfilled all the conditions, he is the first candidate having scored 78.04% marks; however, without notice to him in the revised checklist his marks have been shown as 74.97%.
11. Counsel for the applicant emphatically argued that the unpaid apprenticeship training is a part of experience, in addition to preference being given to such persons who have undergone the apprenticeship training. The detailed functions or works undertaken during apprenticeship have been given in such apprenticeship certificate. These are the indexes to manifest that while undergoing training the individual gets adequate experience.
12. Counsel for the private respondent stated that first of all, there were two notifications, one published in September, 2011 and another in April, 2012. The applicant has applied for both. In so far as the first notification is concerned, when checklist was prepared, and the applicant could find some deficiency in eligibility conditions, against which he had caused legal notice issued. In so far as the second notification is concerned, the applicant has preferred his representation vide Annexure A-7, which refers to notice dated 07-11-2012, which relates to the second notification. However, the impugned checklist vide Annexure A-1 is termed as Revised Checklist, the earlier checklist being one published on 02-04-2012. It is this notification that has been annexed as Annexure 6(d) by the private respondent. The applicant, as per the official respondents, has not fulfilled the conditions of experience in respect of the notification issued in September, 2011, vide Annexure A-1. It is in both the checklists that the private respondent has been shown as the first candidate amongst those who had fulfilled all the conditions. Since there was a restraint order in filling up of the post either under the first notification of September, 2011 or the later notification of April, 2012, that the private respondent who had topped the list amongst those eligible candidates, had to implead himself in this OA. In so far as the contention of the applicant's counsel that apprenticeship means experience too, is concerned, the counsel referred to the definition of the term apprentice as per the Apprentice Act, 1961. The counsel submitted that an apprentice cannot be equated to a worker, as per the very definition of the term, 'apprentice'.
13. Counsel for the official respondents submitted that the applicant is not eligible under the first notification whereas he fulfills the requisite conditions of experience in so far as the second notification is concerned about which no further action has taken place. In so far as the first notification is concerned, the applicant does not fulfill the experience part since, the so called experience claimed by him as earned while undergoing apprenticeship, cannot under any terms be included as experience. He may fulfill the preferred qualification, but unless the basic qualification of diploma in Engineering with two years of service is fulfilled, the question of taking into account the preferential qualification does not arise.
14. Arguments were heard and documents perused. It is to be clarified that the applicant has applied in response to two notifications and the second notification is meant for a different post. In respect of this notification, there has been no further progress. The applicant does fulfill the requisite qualifications and also has preferential qualification with reference to the second notification. This is fully admitted by the official respondents. The applicant has to wait for the result thereof.
15. In so far as the first notification is concerned, the question is whether the apprenticeship training period could be included as a part of experience. Since the same has been provided for as preferential qualification, the same cannot be included as a part of experience. For, there cannot be overlapping in respect of essential and preferential qualifications. Again, apprenticeship is nothing but a process of learning and there is no master-servant relationship between the master and the apprentice. The following decisions of the Apex Court are apt to be referred to here in this regard:-
(a) In ESI Corpn. v. TELCO, (1975) 2 SCC 835, the Apex Court has stated as under:-
We are unable to hold that in ordinary acceptation of the term apprentice a relationship of master and servant is established under the law. Even etymologically, as a matter of pure English, "to serve apprenticeship means to undergo the training of an apprentice" (Chamber's Dictionary). According to the Shorter Oxford English Dictionary, apprentice is "a learner of a craft; one who is bound by legal agreement to serve an employer for a period of years, with a view to learn some handicraft, trade, etc. in which the employer is reciprocally bound to instruct him".
Stroud's Judicial Dictionary puts it thus:
"In legal acceptation, an apprentice is a person bound to another for the purpose of learning his trade, or calling; the contract being of that nature that the master teaches and the other serves the master with the intention of learning."
While dealing with the nature of the relationship of master and servant in comparison with other relationships in Halsbury's Laws of England, 3rd Edn., Vol. 25, the following passage appears at para 877, pp. 451-52:
"By a contract of apprenticeship a person is bound to another for the purpose of learning a trade or calling, the apprentice undertaking to serve the master for the purpose of being taught, and the master undertaking to teach the apprentice. Where teaching on the part of the master or learning on the part of the other person is not the primary but only an incidental object, the contract is one of service rather than of apprenticeship; but, if the right of receiving instruction exists, a contract does not become one of service because, to some extent, the person to whom it refers does the kind of work, that is done by a servant, or because he receives pecuniary remuneration for his work."
6. The heart of the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms.
That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer. Such a person remains a learner and is not an employee. An examination of the provisions of the entire agreement leads us to the conclusion that the principal object with which the parties enter into an agreement of apprenticeship was offering by the employer an opportunity to learn the trade or craft and the other person to acquire such theoretical or practical knowledge that may be obtained in the course of the training. This is the primary feature that is obvious in the agreement.
11. From the terms of the agreement it is clear that apprentices are mere trainees for a particular period for a distinct purpose and the employer is not bound to employ them in their works after the period of training is over. During the apprenticeship they cannot be said to be employed in the work of the company or in connection with the work of the company. That would have been so if they were employed in a regular way by the company. On the other hand the purpose of the engagement under the particular scheme is only to offer training under certain terms and conditions. Besides, the apprentices are not given wages within the meaning of that term under the Act. If they were regular employees under the Act, they would have been entitled to additional remuneration such as daily allowance and other allowances which are available to the regular employees. We are, therefore, unable to hold that an apprentice is an employee within the meaning of Section 2(9) of the Act.
12. Incidentally we may note that Section 18 of the Apprentices Act, 1961, provides that--
"save as otherwise provided in this Act, every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker...."
13. The concept of apprenticeship is, therefore, fairly known and has now been clearly recognized in the Apprentices Act. Apart from that, as we have noticed earlier, the terms and conditions under which these apprentices are engaged do not give any scope for holding that they are employed in the work of the company or in connection with its work for wages within the meaning of Section 2(9) of the Act.
(b) In a very recent decision in Haryana Power Generation Corpn. Ltd. v. Harkesh Chand, (2013) 2 SCC 29, the Apex Court has held as under:-:
Before we advert to the quintessential tenor of the said communications, it is necessitous to understand the nature of appointment, the concept of an apprentice, his rights under the law and the basic ingredients of regular satisfactory service.
20. As has been stated earlier, the respondents were appointed as apprentices ITI trainee for a period of two years. Each of them were paid a fixed salary of Rs
350. After completion of the training, it was mentioned in the letter of appointment that they may be appointed to the post of officiating Technician Grade II in the pay scale of Rs 400/700 on temporary basis.
21. Section 2(aa) of the Apprentices Act, 1961 (for short "the 1961 Act") defines "apprentice" which means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship.
22. Section 2(aaa) defines "apprenticeship training"
which means a course of training in any industry or establishment undergone in pursuance of a contract of apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices. Section 18 clearly states that apprentices are trainees and not workers.
23. In U.P. SEB v. Shiv Mohan Singh, A.K. Mathur, J., speaking for Hegde, J. and himself, while dealing with the status of apprentice, has stated thus: (SCC p.
416, para 43) "43. Therefore a combined reading of the sections as well as Rules makes it clear that apprentices are only persons undergoing training and during that training they are entitled to get a particular stipend, they have to work for fixed hours and at the end of period of training they have to appear in the test and a certificate is issued to them. There is no obligation on the part of the employer to give them any employment whatsoever. The position of the apprentice remains as an apprentice trainee and during the period of training they will not be treated as workmen. Only obligation on the part of the employer is to impart them training as per provisions of the Act and the Rules and to pay them stipend as required under Rule 11 and beyond that there is no obligation on the part of the employer to accept them as his employees and give them the status of workmen. There is no relation of master and servant or employer and employee."
24. Be it noted, in Shiv Mohan Singh case, in para 51, it has been laid down that the 1961 Act is a complete code in itself and it lays down the conditions of the apprentices, their tenure, their terms and conditions and their obligations and what are the obligations of the employer. It also lays down that the apprentices are trainees and not workmen and if any dispute arises, then the settlement has to be made by the Apprenticeship Adviser as per Section 20 of the Apprentices Act, 1961 and his decision thereof is final. The nature and character of the apprentice is nothing but that of a trainee and he is supposed to enter into a contract and by virtue of that contract, he is to serve for a fixed period on a fixed stipend and that does not change the character of the apprentice to that of a workman under the employer where he is undergoing the apprenticeship training. Sub-section (4) of Section 4 only lays down that such contract should be registered with the Apprenticeship Adviser, but by non-registration of the contract, the position of the apprentice is not changed to that of a workman. From the scheme of the Act, the apprentice is recruited for the purpose of training as defined in Section 2(aa) of the Apprentices Act, 1961 and from the language employed in Sections 6 and 7, it is more than clear that the nature and character of the apprentice is that of a trainee only and on the expiry of the training, there is no corresponding obligation on the part of the employer to employ him.
16. It would be a different aspect if such training is notified in the very recruitment rules itself as a part of essential qualifications/experience, in which event, the same should be included as held by the Apex Court in the case of Krishan Lal vs State of Haryana (2009) 14 SCC 745 wherein one of the national Trade Certificate and Craft Instructor Training Course in trade was one of the essential qualifications, and the said course also included a training for a period of two years. As regards experience, the requirement was five years' practical/teaching experience including the period mentioned in the aforesaid National Trade Certificate. The Apex Court accordingly held that the said training period would be treated as a part of experience.
17. From the above decisions of the Apex Court, we have no modicum of doubt that the apprenticeship training cannot be termed as experience. Independent of such apprenticeship when the applicant has at his credit two years experience, he not only possesses the prescribed experience but also possesses the preferential qualification and the same is with reference to the second notification dated 26-04-2012. In so far as first notification is concerned, he does not fulfill the qualifications. Respondents may thus go ahead in respect of appointment of the suitable candidate on the basis of the applications submitted by various aspirants and if the private respondent happens to be one who stands first in merit amongst the eligible candidates, his case may be processed accordingly. In respect of the second notification, as the applicant fulfills the requisite qualification, experience and also has at his credit the preferred qualification of apprenticeship, his case should be considered in respect of the other appointment for which the second notification vide Annexure A-11 has been issued. In case the applicant comes in merit in the same in comparison with other aspirants who had applied in response to the said notification, action to fill up the said post may be taken to appoint the applicant.
18. The OA is disposed of accordingly. The stay imposed vide order dated 04.03.2013 has been removed. As the stay lasted for about five months, respondents are expected to take immediate action in filling up of the posts. No costs.
(K.GEORGE JOSEPH) (Dr.K.B.S.RAJAN) Member (A) Member (J) aa.