Allahabad High Court
Rajendra Singh And 49 Others vs U.P. State Electricity Board, Lucknow ... on 1 April, 1999
Equivalent citations: 1999(2)AWC1497, (1999)2UPLBEC1074
Author: D. K. Seth
Bench: D.K. Seth
JUDGMENT D. K. Seth, J.
1. The petitioners who are claiming to be apprentice trainee under the U. P. State Electricity Board, have challenged the advertisement contained in Annexure-10 to the writ petition issued by the U. P. State Electricity Board, providing that even apprentice would be required to be sponsored through employment exchange and that they would also be required to appear in the written examination.
2. Dr. R. G. Padia, learned counsel for the petitioners appearing along with Shri Prakash Padia submits that in view of the decree in the case of U. P. State Electricity Board v. Hari Om Sharma in Civil Appeal No. 764 of 1993, dated 12.1.1995, it is not open to the State Electricity Board to require the apprentice to be sponsored through employment exchange or to appear in the written test.
3. He draws my attention to the text of the said decree which specifically provides that while considering the question of recruitment, the Board shall follow its service regulation except that the trainees would not be required to appear in the written examination if not provided in the regulation.
4. He further contends that Similar direction was given by this Court in respect of another group of persons in Civil Misc. Writ Petition No. 13072 of 1998 between Rqjendra Singh and 134 others v. V. P. State Electricity Board and others, decided on 16.4.1998, which is Annexure-102 to the writ petition by Hon'ble Sudhir Narain. J. Therefore, he claims that the petitioners should be given the same benefit as has been provided in the said judgment. He further contends that the respondents cannot make out a different case deviating from the judgment of the Apex Court read with judgment of this Court referred to above. Despite specific direction contained in the Apex Court judgment and that of this Court, it was unwarranted on the part of the State Electricity Board to incorporate the condition of sponsoring through employment exchange and appearance in the written test so far as the apprentices are concerned.
Unless the decree as contained in Annexure-104 is modified, it is not open to the respondent Board to take a different stand which is binding on it, Even though it may be contended by Mr. S. P. Mehrotra, learned counsel for respondents that the Board had not issued any circular as was issued by the U. P. State Roadways Corporation, so long the decree stands, it is binding and cannot be deviated from. Therefore, the decision cited by Mr. Mehrotra, according to him. in the case of Askand Kumar Srivastava v. State oj V. P. and others, decided on 4.2.1999 in Civil Misc. Writ Petition No. 3177 of 1999, which did not take into account the decision in the Civil Appeal No. 764 of 1993 contained in Annexure-104 to the writ petition, cannot be relied upon and be attracted since the said decision was rendered without considering the specific decree being placed before this Court in Civil Appeal No. 764 of 1993 passed by the Apex Court on 12.1.1995. On account of non-consideration of law which is otherwise binding on the Board, the said judgment cannot be said to have laid down a good law so far as the Board is concerned.
5. Dr. Padia, led me through various annexures, pleadings and the judgments cited and had argued that in this case, the petitioners should be permitted to appear in the selection without being compelled to be sponsored through employment exchange and without being subjected to the written test.
6. Mr. S. P. Mehrotra, learned counsel for respondents on the other hand, contends that the judgment in the case of Askand Kumar Srivatava (supra), had relied on the decision in the case of U. P. State Transport Corporation and another v. U. P. Parivahan Nigam Shikshukhs Berozgar Sangh and others, AIR 1996 SC 1115, which was decided along with Civil Appeal No. 764 of 1993 which is relied upon in the said decision in the case of Askand Kumar Srivastava (supra) and, therefore, there cannot be any question of deviation from the said judgment. He further contends that It is open to the petitioner to assail the same in a different forum but not in this Court. Even this Judgment is of a single Judge, is binding on this Court, particularly when it was a judgment delivered by me. He further contends that the decree contained in Annexure-104 to the writ petition is only a ministerial act and is not a judgment. The decree has to conform to the judgment and the judgment is not required to conform to the decree, If there is any deviation from the Judgment, in that event, the decree so far as the deviation is concerned cannot be binding to that extent even if it is not modified. The decree has been prepared by the Department which is purely a ministerial act and not in discharge of Judicial function and as such the decree cannot override the Judgment. Therefore, the Judgment that has been distinguished in the case of Askand Kumar Srivastava (supra) is very much attracted in the facts and circumstances of the case and cannot be deviated from. On these grounds, he contends that the petitioner cannot be in any better position than what has been laid down in the case of Askand Kumar Srlvastava (supra). According to him, in the said decision, the petitioners were exempted from being sponsored through employment exchange and relaxation of age but they cannot be exempted from appearing in the written examination as has been held in the said Judgment which was against the U. P. State Electricity Board itself, even though the decree in Appeal No. 764 of 1993 was not considered to that extent.
7. I have heard Dr. R. G. Padia, learned counsel for the petitioners and Shri S. P. Mehrotra, learned counsel for respondents at length.
8. In fact the decision in the case of U. P. State Road Transport Corporation and another u. U. P. Parivahan Nigam Shikshukhs Berozgar Sangh and others in Civil Appeal Nos. 4347-54 of 1990 since been reported in 1995 (1) UPLBEC 320, a copy whereof is Annexure-102 to the writ petition, shows that the said Civil Appeal Nos. 4347-54 of 1990 was decided along with many other similar appeals including Civil Appeal No. 764 of 1993 between the U. P. State Electricity Board and Hari Om Sharma, relied on by Dr. Padia. This Judgment was dealt with in the decision in the case of Askand Kumar Srivastava (supra) and a distinction has been made on the basis of paragraphs 8 and 9 of the said judgment in respect of U. P. State Road Transport Corporation holding that the said exception incorporated in paragraph 13 of the Judgment does not apply to the State Electricity Board, in order to appreciate the situation, it is necessary to quote paragraphs 8 and 9 of the said judgment. Accordingly, paragraphs 8 and 9 of the judgment in the case of U. P. State Road Transport Corporation and another v. U. P. Parivahan Shikshukhs Berozgar Sangh and others (supra) is quoted below :
"8. On the strength of these provisions, the contention advanced is that the High Court could not have directed to give employment to the trainees. Reference to the Impugned judgment, however, shows that while giving the direction, the Court was conscious of what has been provided in Section 22 of the Act ; even so. the direction was given on the basis principally of doctrine of promissory estoppel as already noted. As to this view taken by the High Court, we state that, according to us, the direction in question could not have been given because of this principle, despite what was given out by the Joint General Manager of the Corporation in his Circular letter dated 1977 referred in the judgment.
9. We have said so as reference to that Circular shows that all ft has done is to lay down the procedure for the selection of the apprentices, which did not require the apprentices to undergo any written examination for selection and their routing through employment exchange was done away with. Something was said about the age also. No promise of employment can be read in this Circular which is of 21.12.1977. We would say the same about the memo of the Directorate of Training and Employment of State of U. P. dated 21.9.1977 as it falls short of any promise of employment, because what it says is that full efforts should be made to provide the trainees with service, in this memo, what had been stated in para 2 of the Government of india's letter dated 31.8.1978 had been quoted in which it was mentioned that the scheme of training had been introduced to promote chances of employment of educated unemployed persons : and that if employers would provide employment to the qualified apprentices the same would amount to destruction of developed human resources. It is because of this that the Government of india expressed the desire that "other things being equal trained apprentices should be given preference in case of employment."
9. Now on the basis of these facts referred to in paragraphs 8 and 9 of the said judgment after having laid down the guidelines in paragraph 12, paragraph 13 has been incorporated. The text of paragraph Nos. 12 and 13 are quoted as hereunder.
"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. Hargopal, 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 concerned service rule. 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 concerned training institute would maintain a list of the persons trained year-wise. 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. In so far as the cases at hand are concerned, we find that the Corporation filed an additional affidavit in C.A. 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, in so far as the age requirement is concerned, the same shall be relaxed as indicated above."
10. A plain reading of paragraphs 8 and 9 and paragraphs 12 and 13 of the said judgment supports the view which I have taken in the case of Askand Kumar Srivastava (supra), inasmuch as having considered the situation as referred to in paragraphs 8 and 9, the Apex Court had laid down the guidelines in paragraph 12 providing for exemption for sponsoring through Employment Exchange and relaxation of age. But it did not incorporate the exemption of appearance from written test in paragraph 12. Paragraph 12 has been laid down as the general principle as a ratio of said decision. Whereas in paragraph 13, it has been specifically mentioned that in Civil Appeal Nos. 4347-4354 of 1990 the Corporation, viz., the U. P. State Road Transport Corporation filed an additional affidavit which is referred to in paragraphs 8 and 9 and on the basis thereof, an exception has been made that the trainees should not be required to appear in any written test even if it is so provided in the regulation. Though it was held that the circular referred to in paragraphs 8 and 9 would not operate as promissory estoppel but still on the basis of such situation, such an exception was carved out in respect of the Corporation. Admittedly, no such circular or scheme was ever issued by the State Electricity Board. Admittedly para 13 does not mention Civil Appeal No. 764 of 1993 nor it says that it will have a general application in respect of all the connected cases. On the other hand, paragraph 13 mentions Civil Appeal Nos. 4347-4354 of 1990 specifically that this case was decided along with all other cases, in the absence of any express indication that other connected cases decided along with Civil Appeal Nos. 4347-4354 of 1990 would also be treated equally with that of the U. P. State Road Transport Corporation in respect of the exception carved out in paragraph 13 while laying down general principle in paragraph 12.
11. But then the decree contained in Annexure-104 as it appears is a decree prepared on the basis of the judgment delivered on 12.1.1995 in the case of U. P. State Road Transport Corporation along with Civil Appeal No. 764 of 1993 and other connected appeals. The preparation of the decree is purely a ministerial Job which is prepared by the Department on the basis of the judgment, in case there is any deviation from the judgment, the same cannot be said to be binding. The decree has to conform to the judgment. The judgment is not required to conform to the decree. It is always open to the Court to interpret the judgment according tc the ratio laid down therein. No advantage can be taken from the decree if there is a deviation in between the judgment and the decree for the purpose of interpretation of judgment. The Court has liberty to interpret the decree in conformity with the judgment and Ignore that part of the decree which does not conform to the Judgment.
12. A perusal of the said decree shows that It has merely quoted the paragraphs 12 and 13 of the said decision overlooking the question as discussed in the decision in the case of Askand Kumar Srivastava (supra) or as has been observed hereinbefore. The paragraph 13 having held to be an exception of paragraph 12, it cannot be said to be applicable in respect of Civil Appeal No. 764 of 1993 where the fact is little distinguishable from the facts in Civil Appeal Nos. 4347-4354 of 1990. Therefore, the exception mentioned in the decree cannot prevail. However, it would be open to the respondents to apply for correction of the decree because I am of view that it appears to be a clerical mistake which can be corrected under Section 152 of C.P.C, while preparing the decree through ministerial action.
13. In that view of the matter, 1 am unable to accede to the contention of Dr. R. G. Padia, learned counsel for the petitioners though argued with great ability which had almost led me to decide in his favour.
14. In the circumstances, this writ petition is disposed of in the light of the observation made in the case of Askand Kumar Srivastava (supra) and the Board is hereby directed to follow the principle laid down and the direction given in the decision in the case of Askand Kumar Srivastava (supra) in the case of recruitment pursuant to the advertisement so far as the petitioners are concerned, provided the petitioners are able to prove that they were apprentices, in terms of said decisions.
15. With the aforesaid observation/direction this writ petition is disposed of.
However, there will be no order as to cost.