A.Das Navis Amirtharaj vs The Management Of Bharat Heavy ... on 21 March, 2025

[Cites 9, Cited by 0]

Madras High Court

A.Das Navis Amirtharaj vs The Management Of Bharat Heavy ... on 21 March, 2025

These are batch of Writ Appeals in sequel of earlier round of litigation between ITI Certificate holders in various trades like Welders, Fitters etc., who have undergone the apprentice trainintg at BHEl,Trichy/Respondents herein.

2.Earlier, a batch of Writ Petitions filed in the year 2005 and thereafter in W.P(MD)Nos.8675 and 11160 of 2005 and 2655 of 2007 etc., in which the learned Single Judge of this Court by common order, dated 12.10.2007 allowed those Writ Petitions directing the BHEL to induct the Apprentices trained under them into the employment as per the old Rule of Recruitment Policy. Whileso, 3/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) the left over trainess seeking (i) employment against the sanctioned vacancies without resorting to recruitment process from open market filed Writ Petitions about 100 in numbers covering about 1400 persons. In this round of litigation, the learned Single Judge dismissed all the Writ Petitions in the common order, dated 04.08.2014. The said order is challenged in these Writ Appeals.

3.To understand the cause for the litigation, it is necessary to trace the history of the litigation between the management of BHEL and the persons who have completed apprentice training in BHEL. Earlier when certain Petitioners approached this Court seeking appointment in BHEl for the post of Welder Grade-IV and Fitters Grade-IV on the strength of their successful completion of apprentice training in the BHEL, Trichy, taking into consideration the existing recruitment policy at the time of their completion of training and the provisions of Apprentices Act, the learned Single Judge allowed the Writ Petitions with following observations:

‘’11.The judgment (cited supra) rendered by this Court has reviwed all the relevant cases relating to apprentices and amde a distinction between category of apprentices covered by Section 22(1) of the Apprenetices Act, who were merely 4/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) trained by any industry without promise of future employment and with refernence to apprentices who were trained by a relevant industry under Section 22(2) o the Apprenetices Act, 1957 with a promise to absorb them.

12.In the present case, the policy for recruitment makes the Departmental candidate possessing specific requirements as a source of recruitment and also paragraphs 4.4 and 4.5 provide for induction to candidates having satisfactorily completed their apprenticeship training. Further, in the Ranipet Unit, similarly placed apprentices have been taken for employment. The respondents, heing the same company, cannot make a distinction between the two units. Some of the Petitioners have also been employed as casuals after their apprenticeship training. Therefore the decision rendered to by the learned counsle for the respondents has no application to the facts of the cases on hand. On the other hand, the issue raised in these Petitions has been squarely answered by this Court in G.Ravikumar’s case(cites supra)’’.

4.The order of the learned Single Judge was challenged before the Division Bench of this Court by the management of BHEl and the same was dismissed by the Division Bench upholding the judgment of the learned Single Judge. The Division Bench reiterated the interpretation of Section 22(2) of the Apprentices Act as under:

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https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) ‘’19.For the aforesaid purpose, the Writ Petitioners have referred to the employment policy of the BHEL which has been extracted by the learned Single Judge in the Judgment under challenge. In paragraph 6 of the Judgment, learned Single Judge has extracted para 4.4 and 4.5 indicate that ‘’ Induction in Grade B-III is normally by absorbtion of Commercial Apprentices on satisfactory completition of their apprenticeship under the Apprentices Act’’.

19.1.The above, to some extent, indicates that Section 22(2) of the Apprentices Act would be applicable rather than Section 22(1). If one reads the reply of the Management regarding the representation made by the temporary workmen for regularization of their services, it is apparent that hitherto(by the date of such reply) the apprentices of 26th batch had been absorbed and the apprentices in 27th batch had to wait for their turn. It is also apparent that some apprentices of 27th batch had also been employed on regular basis. These materials also go to a large extent to support the claim of the Petitioners. From the policy of employment as well as the procedure hitherto followed, it is apparent that the employment was being given to those apprentices who had obtained their apprentices certificate under BHEL.

20.In addition to the above, the importance of the settlement under Section 12 of the Industrial Disputes Act between BHEL and the workmen at Ranipet, which supports the conclusion that the apprentices had a right of being employed against the vacancies occurring, cannot be minimized. It is of course true, as contended by the learned counsel for the appellants, that the 6/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) establishment at Ranipet is different from the establishment at Tiruchirappalli.

However, the very fact that the very same public sector organization had entered into a settlement in respect of similarly situated persons at Ranipet is clearly indicative of the fact that after completion of the apprenticeship, such persons had a right of getting employment or at least legitimate expectation of employment.

21.Apparently to contradict the contents of the employment policy regarding the employment of apprentices, the Management has produced in the typed set of papers a new recruitment policy, which indicates that as per the mode of recruitmentas contained in paragraph 5, advertisement has to be made. This document containing such policy, which was issujed only on 14.8.2007, much after the impugned employment notice was issued in June 2006, cannot have effect of denying the right of apprentices.’’

5.It is stated across the bar that further appeal to the Honourable Supreme Court was withdrawn in view of the fact that, the Management of BHEL and apprentices have arrived at a settlement . After the first round of litigation reached its logical end, the second round of litigation inititiated by the left over apprentices and persons who have got apprentices training subsequently. 7/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm )

6.Distinguishing the earlier batch of cases, the Management contested the Writ Petitions filed subsequently, which is identified as second round of litigation. It was successfully contended by BHEL that in view of the New Recruitment Policy and explicit terms of the contract between the trainers(BHEL) and trainees(Apprentices) that providing training will not ensure any preferential treatment in employment.

7.The learned Single Judge vide common judgment, dated 04.08.2014, dismissed the Writ Petitions(totally 116 in numbers) holding that the Writ Petitioners /apprentices are not entitled to any relief and the claim for employment under Section 22(2) of the Apprentices Act is not sustainable.

8.Mr.N.G.R.Prasad, learned counsel, who lead the arugment on behalf of the appellants referring to the judgment of the learned Single Judge and Division Bench in the earlier round of litigation submitted that the Writ Petitioners who were recruited as apprentices based on the Employment Exchange seniority have a legitimate expectation for a preferential treatment in the appointment in view of Section 22(2) of the Apprentices Act. In view of the ban on recruitment persons, 8/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) the trained Apprentices were not provided with employment in due course.

Thereafter, citing the change in the recruitment policy, the management want to deprive the trained apprentices, their lawful entitlement and employment in BHEL.

9.Referring to the judgment of the learned single Judge and Division Bench which is extracted above, Mr.N.G.R.Prasad, learned counsel would submit that the above observations holds good even after the change in the recruitment policy. The persons, who have completed apprentices before the change of retruitment policy should be considered for employment only under the old recruitment policy. The Game Rule cannot be changed after the commencement of the game. Referring to Clause 4.4 and 4.6 of the old Recruitment Policy and 6.1 which speaks about the statement of company and the recruitment policy be emphatically argued that the new rule which came into force on 12.08.2007, cannot be put against the Writ Petitioners to deny their legitimte expectation. He would further submit that the learned Single Judge in the earlier round of litigation had considered the change in the recruitment policy and held that new recruitment policy will not be applicable to the apprentices who have completed 9/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) their training successfully prior to the amendment to the recruitment (i.e,) on 14.08.2007 and the amendment to the Apprentices Act on 22.12.2014.

10.The learned counsels for the appellants submitted that the purpose of Apprentices Act is to train qualified persons and to recruit them after giving training. Section 8 of the Apprentices Act mandates the industry to provide apprentice training proportionate to their regular work force. While a set of apprentices have been given the employment on regular basis as a result of the first round of litigation, therefore, similarly placed persons cannot be deprived of their employment.

11.The learned counsel for the appellants submitted that the appellants were selected for apprentices training through Employment Exchange, a process recognized under Law. They are not back door entrants. Therefore, there is an obligation on the part of the respondents to offer employment to the apprentices who were trained under them and also the corresponding right for apprenctices to seek employment when there is vacancy.

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12.It is averred that the learned Single Judge neither applied the provisions of Law as it intended nor followed the precedent. Making out illusionary differences between the Writ Petitioners in the earlier round and the present Writ Petitioners, had rejected the lawful claim of the Writ Petitioners. It is contended on behalf of the appellants that Rule 4.4 of the old Recruitment Policy will apply to the vacancies arose before 14.8.2007.The appellants herein have fully satisfied the requirement of Seciton 22(2) to seek preferential treatment in the employment without submitting to the normal recruitment process as contemplated under the New Recruitment Policy. The learned Single Judge had erred in applying the Doctrine of Merger which has no application to the facts of the case. The order passed by the Honourable Supreme Court based on the settlement between the litigants is not an order on merits to apply the Doctrine of Merger. Hence the dictum laid down by the Division Bench of this Court in a batch of Writ Petitions in W.P(MD)Nos.685 to 687 of 2007 still holds the field.

13.Per contra, the learned Standing Counsel for the Management of BHEl submitted that the old recruitment policy in Rule 4.2 and 4.4 provided induction of trained apprentices in A-III SA-I Grade by absorbtion to artison trainees and 11/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) supervisory trainees on satisfactory completiton of their apprentices, who have been trained under the Apprentices Act, 1961. The Management of BHEL has been scrupuluously following the Rule till ban on recruitment to the regular vacancy imposed in the year 1985 and continued till 2005. By that time, the Honourable Supreme Court in the case of Viswesvara Rao .vs. The Union of India reported in 1996(6)SCC 216 came down heavily on the back door recruitment without following the due process of law and mandated that in case of employment in public sector, all eligible citizens should be given equal opportunity by giving wide publications through newspapers, besides, calling for list from the Employment Exchange. Following the spirit of the Honourable Supreme Court that there can no more be in house recruitment without wide publication and in view of the Office Memorandum by the Government of India, dated 24.11.1998 issued in tune with the direction of the Honourable Supreme Court in Viswesvara Rao’s case cited supra, the respondents/Management of BHEL ameneded its Recriutment Policy and started recruitment through vide paper publication in addition to inviting eligible candidates from Employment Exchange.

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14. As per the New Recruitment Policy, apprentices who are trained under the BHEL has to participate in the recuitment process like any other persons and if all the other criteria is equal, then preferential treatment will be given for the apprentices who have successfully completed the training. The law does not permit for an automatic recruitment without undergoing the process.Merely because, the Writ Petitioners were trained by BHEL, the Petitioners cannot calim employment in a Public Sector, in violation of the Law.

15.The learned counsel appearing for the BHEl would submit that the training of eligible diploma holders under Apprentices Act is a statuory obligation on the part of BHEL. The trainees on successful completion of apprentice cannot have a claim in the employment to march over the other eligible citizens available in the open market.

16. A detailed written submissions filed on behalf of the appellants as well as the respondents.

17.Regarding the plea of parity with the successful Writ Petitioners with 13/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) earlier round of litigation, the learned counsel for the management, BHEL submits that in the earlier occasion, apprentices at BHEL, Ranipet, had the advantage of 12(3) Settlement. As far as apprentices of BHEL Tiruchy, the contract between the BHEl and the Trainees were omitted to be filed. Under Section 22(2) of the Apprentices Act, either prior to the amendment of Recruitment Policy or thereafter. The right to claim induction shall be only if the contracts provide for any preferential treatment. The learned counsel therefore submitted that in the contract of training between BHEL and the appellants herein, there is a specific clause in the contract that the trainees shall have no preference in employment arising out of vacancy. Contrarily, the learned counsel for the appellants want the old rule of recruitment policy to telescope into Section 22(2) of the Apprentices Act and read down with the aid of the judgments of this Court and the judgments rendered in earlier round of litigation.

18.Section 22 of the Apprentices Act reads as under

’22.Offer and accpetance of employment.--((1) Every employer shall 14/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) formulate its own policy for recruiting any apprentice who has completed the period of apprenticeship training in his establishment.) (2)Notwithstanding anything in subsection (1), where there is a condition in a contract of apprenticeship that the apprentice shall, after the successful completion o the apprenticesship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, any the apprentice shall be bound to serve the emplyer in that capacity for such period nd on such remuneration as may be speciried 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.’’

19.The relevant portion of the old recruitment policy are:

‘’4.4.Induction levels for Non-Executive categories in ‘A’ group salary grades (Techincal) are as under:

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https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) unskilled group : A1 Skilled group : A-III Supervisory/ Technical group : SA1/AVII Induction in A-II and SA-1 is normally by absoribtion of Artisan and Supervisory Trainees on satisfactory completion of their apprenticeship/training under the Apprentices Act, 1961.

4.6.Any departure from the abve principles should be made with (the prior approval of Corporate Officer in each case).

6.1.Unskilled , semiskilled, skilled and Supervisory Groups All posts in this group required to be filled by outside recruitment are notified to the appropriate Employment Exchante in the manner as provided in the relevant Act and orders from time to time. Simultaneously an internal advertisement is issued for information of such of the employees, who may wish to be considered in the section. Other sources of recruitment are drawn upon only when the Employment Exchane(s) indicate their inability to sponsor candidates satisfying the prescribed requirements, through issue of a non availability certificate in such an extent, an advertisement is issued in the leading daily newspapers in the State in which the Unis/Divisions ar located. Copies of such advertisements are also sent to the sources mentioned at 5(g) for necessary Action.

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https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) As mentioned in Paras 4.4 and 4.6 recruitment to the induction levels in the skilled and Supervisory Groups is from amongst the Apprentices and Trainees under the Apprentices Act.’’

20.It is clear from Section 22 of the Apprentices Act, sub-section (1) of Section 22 makes induction into service an optional on the part of the employer. Sub-section (2) of Section 22 of the above Act makes induction into service as mandatory on the part of the employer vesting reciprocal obligation on the part of the Apprentice to accept the employment. The pre-condition to apply sub- section (2) of Section 22 of the above Act, there must be clause in the contract to that effect.

21.As far as the case in hand, records discloses that in the notification to the Employment Exchange to sponsor names for Apprentice Training, the offer leters to the selected candidates selected for Apprentice Training and the terms of the contract entered between BHEL and the Apprentices it is specifically and explicitly mentions that the post offered is only a training posts and there is no guarantee of appointment after training.

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22.Therefore, we are of the considered view that in the light of the explicit terms in the contract that offer to trained apprentices is not an automatic guarantee for appointment, the observation made by the learned Single Judge and the Division Bench based on the materials placed in the earlier cases is not applicable to the factual matrix available in the cases under consideration. When the documents connected to the selection for apprentice training explicitly say no guarantee for appointment, the prayer in the Writ Petitions to consider their candidature for appointment in permanent regular service without resorting to the recruitment process from open market is unsustainable.

23.In the light of the terms of the contract read with Section 22(2) of the Apprentices Act and in view of the dictum laid by the Honourable Supreme Court in Vishweswara Rao .vs. The Union of India reported in 1996(6)SCC 216 and in the State of Orissa .vs. Mamata Mohanty reported in 2011(3) SCC 436, We hold that the learned Single Judge after careful analysis of the law and the facts, had rightly concluded that, the relief claimed by the Writ Petitioners are not sustainable. The grounds of appeals does not carry any merit to interfere with the order of the learned Single Judge passed in the common order, dated 04.08.2014. 18/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm )

23.As a result, W.A(MD)Nos.1459 of 2017 and batch of cases etc., stands dismissed. No costs. Consequently, connected Civil Miscellaneous Petitions are closed.

[G.J.,J.] [R.P.,J.] 21.03.2025 NCS : Yes Index : Yes Internet : Yes / No vsn W.A(MD)No.1459 of 2017 To

1.The Chairman and Managing Director, Management of Bharat Heavy Electricals Limited, BHEL Corporate Office, Siri Fort, New Delhi -110049.

2.The Executive Officer, Bharat Heavy Electricals Limited, Tiruchirappalli-14.

3.The Senior Manager, (Recruitment and Systems), Building 24, Bharat Heavy Electricals Limited, BHEL, Trichy 620 014.

19/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm ) DR.G.JAYACHANDRAN, J.

and R.POORNIMA ,J.

vsn COMMON JUDGMENT MADE IN W.A(MD)Nos.1459 of 2017, 695 of 2015, 639, 780,779 of 2018, 1251,1252, 136,179,180 of 2015, 647 of 2018, 1243, 183,187,188 of 2015, 637,636 of 2018, 690 of 2021, 174 of 2015, 643, 641,650, 1246,1247,1248,1249,1250,197,270 of 2015, 1321 of 2016, 697, 698 and 699 of 2015, 1322 of 2016, 1245, 173,175, 176,177 and 178 of 2015, 638 and 642 of 2018,191,192, and 696 of 2015, 644, 646, ,648, 640, 649, and 645 of 2018, 190, 193,271,194,195,196,272,273,692,693, 694, 1244, 181,182,189, 58, 59,61,60, 62,63 of 2015,778,777, of 2018, 764 of 2017, 184,185,186,1071,119,1241 and 1242 of 2015 and C.M.P(MD)Nos.3532,3239,9077,3541,3538,3542,3533,3536,3540,3534, 3537,3535,3543,3544,3545 of 2018 21.03.2025 20/20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/04/2025 04:05:22 pm )

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