Madras High Court
M.Sabarinathan vs The General Manager on 14 December, 2007
Author: S.Palanivelu
Bench: F.M.Ibrahim Kalifulla, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14/12/2007 CORAM THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA AND THE HONOURABLE MR.JUSTICE S.PALANIVELU WRIT APPEAL (MD) No.316 OF 2007 M.Sabarinathan ... Appellant vs 1.The General Manager, Ordnance Factory, Ministry of Defence, Trichy - 620 016. 2.The Chairman and D.G.O.F., Ordnance Factory, 10/A, S.K.Bose Road, Kolkata - 700 001. 3.The Employment Officer, The District Employment Office, Employment and Training Department, Trichy - 1. 4.P.Vijay Anand ... Respondents Appeal under Clause 15 of the Letters Patent. !For appellant ... Mr.G.R.Swaminathan ^For respondents 1 & 2 ... Mr.B.Rajendran, Central Govt.Standing Counsel. :JUDGMENT
S.PALANIVELU,J.
This Writ Appeal is filed against the order, dated 04.07.2007, passed in W.P.(MD) No.4500 of 2007, whereunder the prayer of the appellant for a direction to the first respondent to make appointments with respect to the vacancies in the post of 'Machinist - Semi Skilled' in accordance with the Official Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), New Delhi, bearing No.14024/1/2004 (Estt (D), dated December 2004, was rejected by a learned single Judge, following an earlier decision of this Court, in an identical matter.
2. According to the appellant, he, after passing S.S.L.C.examination in the year 1997, joined the Government Industrial Training Institute, Trichy, completed the course of training as "Machinist" and passed the test in the year 2000; he underwent Nationalised Apprenticeship Training between October,2001, and October,2002, in Bharat Heavy Electricals Limited (BHEL), Trichy; he also passed the prescribed test, conducted by National Council for Vocational Training, in November,2002, and got certificate; he has good experience in operating Milling Machines, Drilling Machines and other related machines and tools at BHEL, Trichy, and at Rasab Engineering Works, Trichy; he belongs to Other Backward Class Community and registered his name with third respondent under Registration No.10891/97 and, hence, he is fully qualified to be appointed as "Machinist - Semi Skilled Workman".
3. It is is the further case of the appellant that first respondent has been appointing several candidates, who are junior to him, as Machinists, for the past several years; as per the settled legal principles, the Government owned institutions should cause proper advertisements in newspapers, calling for applications from the eligible candidates, besides inviting the eligible candidates from District Employment Exchange purely on seniority basis and, further, appointments should be made as per the Office Memorandum No.14024/2/96/Estt.(D), dated 18.05.1998, which came to be issued as per the directions of the Supreme Court, but the first respondent, violating the said Memorandum, has made more than 500 appointments, without effecting proper notifications in newspapers nor inviting eligible candidates from third respondent.
4. Aggrieved over the same, the appellant had filed the Writ Petition, for the relief stated supra, which suffered dismissal and, consequently, resulted in filing of this appeal.
5. Mr.G.R.Swaminathan, learned counsel for the appellant, would strenuously contend that merely because a class of persons got training in a particular institution, it cannot be stated that they shall be given preference in the matter of appointment, than the eligible persons, whose names are available in the record of Employment Exchange, which, according to him, is supported by the judicial pronouncements.
6. Conversely, Mr.B.Rajendan, learned Central Government Standing Counsel for respondents 1 and 2, would argue that the apprentices, who are imparted training by the institutions, shall be preferable to those who are in the list of Employment Exchange and only if the establishment is not equipped with adequate number of apprentices to fill up the available positions, then, it may resort to calling for the list of eligible candidates from Employment Exchange, for which, he relies upon Section 22 of The Apprentices Act,1961, which reads as follows :
"22. Offer and acceptance of employment.- (1) It shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer.
(2) Notwithstanding anything in sub-section (1), where there is a condition in a contract of apprenticeship that the apprentice shall, after the successful completion of the apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract."
7. Adverting to the legal background of the subject in issue, there is a catena of decisions, holding the field.
8. In support of his contention, learned counsel for the appellant would cite the following decisions :
(i) Union of India v. N.Hargopal, 1987 (3) Supreme Court Cases 308 :
"6. It is, therefore, clear that the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment. We are, therefore, firmly of the view that the Act does not oblige any employer to employ those persons only who have been sponsored by the Employment Exchanges."
(ii) V.Ramaswamy v. State of Tamil Nadu and others, 1990 (1) L.W.263 :
In this decision, the principle in Hargopal's case, referred above, was followed. The relevant portion of the Supreme Court judgment is as under :
"8....In the absence of any statutory prescription, the statutory authority may however adopt and follow such instructions if it thinks fit. Otherwise, the Government may not compel statutory bodies to make appointments of persons from among candidates sponsored by employment exchange only. The question, of course, does not arise in the case of private employers which cannot be compelled by any instructions issued by the Government."
(iii) Excise Superintendent, Malkapatnam, v. K.B.N.Visweswara Rao, 1996 (6) Supreme Court Cases 216 :
"6....Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the apprentice department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
It shall be stated, that, in this decision, the decision in Hargopal's case has been impliedly overruled.
(iv) Mitrangshu Roy Choudhary v. Union of India, 1999 (3) Supreme Court Cases 649 :
"9.There is no dispute at the Bar that there was no guarantee or promise for employment while sending the present appellants to undergo the apprenticeship course. Therefore, the appellants do not have the right to be appointed under the Act in view of the specific legal provision under Section 22 of the Act.
10. In view of the settled position of law, though under Rule 159 of the Rules and Recruitment and Training, 25% of the posts are to be selected from the course-completed Apprentices like the appellants, the appellants and similarly situated persons cannot claim appointment as a matter of right for this post. The Railways may consider their cases for selection which was done in the present case."
(v) U.P.Rajya Vidyut Parishad Apprentice Welfare Association v. State of Uttar Pradesh, 2000 (4) Supreme 703 :
"3. A question had arisen before the Allahabad High Court in a later case as to whether the direction that the trainees need not undertake examination was applicable only to the petitioners in the case before this Court or whether para 13 laid down any general principle that apprentices need not take the examination. This question went before a Full Bench of the Allahabad High Court in Arvind Gautam v. State of U.P. & Ors., 1999 (2) U.P.CBEL 1397. The Full Bench held that what was mentioned in para 13 was in the specific factual background of the "cases on hand" and that the apprentices are to go through the examination as also the interview, as provided in the Recruitment Rules. The Full Bench had also approved the judgment in the case of Manoj Kumar Mishra v. State of U.P. & Ors., 1997 (2) UP LFBC 1374, which took a similar in regard to the interpretation of para 13 of the judgment of this Court mentioned above.
4. We are, therefore, of the opinion that the view taken in Manoj Kumar Misra's case as also the view taken by the Full Bench in Arvind Gautam's case (supra), is a correct one and that apprentices have to go through the procedure of examination/interview and that they are however entitled to the benefits of entries (i) to (iv) laid down in Transport Corporation case 1995 (2) SCC 1."
(vi) S.Ravichandran v. Tamilnadu Electricity Board & Another, 2002 Writ L.R.211 :
"2....That apart, the Apex Court, in Civil Appeal Nos.5255 to 5328 of 1996, held that the Apprentices have no right to be appointed in preference to other applicants and that all the applicants including the Apprentices are, therefore, required to go through the process of selection provided under the Regulations."
9. Learned counsel for the appellant also refers the relevant provision, namely, Section 4 (1) of The Employment Exchanges (Compulsory Notification of Vacancies) Act,1959, which reads as follows :
"4.Notification of vacancies to employment exchanges.- (1) After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or area shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed."
10. On the other hand, learned Central Government Standing Counsel counsel, appearing for respondents 1 and 2, would place reliance upon the following decisions :
(i) Narendrakumar and Others v. State of Punjab and Others, 1985 (1) L.L.J.337 :
"9.We are also of the opinion that, apart from the implications arising out of S.22(2) of the Apprentices Act, paragraph 2 of the letters of appointment creates a binding obligation upon the employer to absorb the apprentices in the department on the successful completion of the training period, provided there is a vacancy in which the apprentices can be appointed.... Such a reading of the assurance continued in paragraph 2 will also frustrate the very object of the provision made by the legislature in S.22 (2) of the Act. The object of that provision is to guarantee to the extent of the existence of vacancies, that the apprentices will not be rendered jobless after they complete their training."
(ii) U.P.State Road Transport Corporation and another v. U.P.Parivahan Nigam Shishukhs Berozgar Sangh and others , 1995 (2) Supreme Court Cases 1 :
"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.
N.Hargopal, 1987 (3) SCC 308 : 1987 SCC (L&S) 227 : 1987 (4) ATC 51 : 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 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."
11. As already stated, a Full Bench of the Apex Court in K.B.N.Visweswara Rao's case, cited supra, has impliedly overruled the decision in Hargopal's case. In both the cases, facts and circumstances were available under the provisions of The Employment Exchanges Act. But, the case on hand involves a question relatable to the provisions of The Apprentices Act,1961, for which another Full Bench decision in U.P.State Road Transport Corporation and another v. U.P.Parivahan Nigam Shishukhs Berozgar Sangh and others, referred above, would also be applicable. In the said case, the Supreme Court, while discussing the facts of the case and formulating a principle with regard to the claim of trainees to get employment after successful completion of their training, proceeds to hold that other things being equal, trained apprentices should be given preference over direct recruits. This is clause (1) in para 12 of the said decision. Clause (2) goes to the effect, that, for the above said procedure, a trainee would not be required to get his name sponsored by any employment exchange and the decision of this Court (Apex Court) in Hargopal's case would permit the same. In the said case, the Supreme Court has remarkably distinguished the cases of direct recruits and trained apprentices and held that trained apprentices should be given preference over direct recruits.
12. The Ministry of Defence, Government of India, vide proceedings No.570/A/1/(III), dated 15/20 October,1999, issued a circular to the General Managers of all the factories, stating that in compliance with the Supreme Court judgment, efforts will be made to meet the requirements by appointing ex-Trained Apprentices of the factory as far as possible and only when the ex-Trained Apprentices are not available, recruitment from other sources will be resorted to.
13. On a careful reading of the decisions of the Apex Court, cited by both the counsel, and also the records, we deem it appropriate to follow the principles laid down in U.P.State Road Transport Corporation and another v. U.P.Parivahan Nigam Shishukhs Berozgar Sangh and others, 1995 (2) SCC 1, and Excise Superintendent, Malkapatnam, v. K.B.N.Visweswara Rao, 1996 (6) Supreme Court Cases 216, and hold that the requisitioning department should call for the list of eligible candidates from employment exchange and the apprentice department or undertaking or establishment shall invite candidates by publication in newspapers and other media, and then consider the cases of all the candidates, who have applied, and, in the selection process, other things being equal, trained apprentices shall be given preference. The said procedure shall be adopted on future occasions and the appointments made hitherto shall stand unchanged.
14. Writ Appeal is disposed of, as above. No costs. Consequently, the connected M.P.(MD) No.1 of 2007 is closed.
dixit To
1.The General Manager, Ordnance Factory, Ministry of Defence, Trichy - 620 016.
2.The Chairman and D.G.O.F., Ordnance Factory, 10/A, S.K.Bose Road, Kolkata - 700 001.
3.The Employment Officer, The District Employment Office, Employment and Training Department, Trichy - 1.