Central Administrative Tribunal - Kolkata
Tapas Pal vs O F B on 8 May, 2018
RL),A r OA/350/00499/2012
CENTRAL ADMINISTRATIVE TRiBUNAL
CALCUTtA BENCH, KOLKATA
O.A./350/00499/20 12
Orders Reserved on: 07" Feb., 2018
Date of orders : Sfi May, 2018
CORAM
HON'BLE MRs. BIDISHA BANERJEE, MEMBER (J)
HON'BLE Dr. NANDITA CHATI'ERJEE, MEMBER (A)
Tapas Pal, son of Sri Shakti Pada Aal, Village & Post - Krishnanagar,
P.S. - Kharagpur, Dist. - Midnapore West, Pin - 721149.
Amalesh Sheet, of Village Jalaghata, Police Station and Post Office -
Singur, District - Hooghly, Pin 712407.
Khakan Saha, of Village Paharirchak, P0 - Narghat, Police Station
Nandakumar, District Purba Medinipore, Pin 721669.
Debabrata Dhara, of Village and P0 Diara, Police Station Singur,
District - Hooghly, Pin 7212 223.
Samirul Middya, C/o. Abdul Kader, of Village Mondarbuni, Post
Office f-Iatasuria, Police Station Barjora, District Bankura, Pin
722204.
Kartick Dey, Son of Narayan Chandra Dey, of Haldarbagan, P0 and
Police Station Chinsurah, District Hooghly, Pin 712101.
SK. Sekendar Ali, Son of SK. Mofijuddin AR, of Villae Barisha, Post
Office Kolaghat, District Purba Medinipore, Pin 721134.
Srimanta Biswas, son of Susanta Biswas, of B.D.O. Office Para, of
Village Mahishbathan, Post Office Rahamatpur, Police station
Karimpur, District Nadia, Pin 741165.
Debjit Das, Son of Dilip Kumar Das, of Chaldhowanipara, Post Office
Rampurhat, District - Birbhum.
10.Sudipta Mukherjee, son of Susanta Kumar Mukherjee of Village and
Post Office Paraj, near Laximitala, Police Station Galsi [House
No.153 ViaBud Bud], District Burdwan, Pin 713403.
11 .Rajkumar Laha, son of Asok Kumar Laha, of Baltikuri, Naskarpara,
Sastitola, P.O. Baltikuri, District Howrah, Pin 711402.
2ff OA/350/00499/2012
1 2.Arunagshu Bhattacharjee, son of Adhir Kumar Bhattacherjee, of 28
No. Olabibitala, P0 Makhla, Post Office Uttarpara, District Hooghly,
Pin 712245,
13 .Pinku Sarkar, son of Late Monoronjon Sarkar 51 Dhirendranath
Ghosh Road, Kolkata 700025.
Ayan Bhattacharya, son, of Late Anit Bhattacharya, Changirally, P0 -
Maja P.S.- Jagatballabpur, Distrcit - Howrah.
Ganesh Jana, son of Shri Rajbehari Jana, Village - Chitra, P0 -
Ramtarakhat, P.S. - Kolkghat, Dist - Purba Madinipur.
applicants
By Advobate : Mr. N.P.Biswas
Versus
Union of India, represented through the Secretary, Ministry of
Defence, 101 South Block, New Delhi.
Gun & Shell Factory, Service through Senior Genetal Manager,
having its office at Cossipore, Kolata - 700 002.
The General Manager, Gun & Shell Factor, Cossipore, Ministry of
Defence, Government of India, Kolkata-- 700 002.
Director, Ordinance Factory Board, Ministry of Defence, Government
of India, Ayudh Bhawan, bA, Sahid Khudiram Bose Road, Kolkata-
700 001.
Secretary, State Council for Vocational Training, Kolkata Karigari
Bhaban [3' Floor], 110, S.N. Banerjee Road, Kolkata --700 013.
Respondents.
By Advocates: Mr. B.P.Manna with Mr. S.Paul.
ORDER
Per Bidisha Banerlee, Member (J):- The applicants, 15 in numbers, have filed this application to seek the following reliefs "8[i] Let the Respondent authorities be directed to strictly follow the guidelines issued by Ordinance Factory Board, Ministry of 5th Defence, Government of India dated I October, 1999 regarding the recruitment of Ex-Trade Apprentice.
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3. OA/350/00499/2012 Let the Respondent authorities be directed to strictly follow the selection process based on fitness cum seniority and selection be done on the basis of batch wise seniority and the same batch seniority.
Let the respondent authorities should call all the Ex-trade Apprentices who are trained in its own factory without restoring to recruitment through open advertisements whereby the external candidates are given preference over the factory trained own trade apprentices.
Let the Respondent authorities being restrained from giving appointment letters to any of the candidates whose name has been published by the respondents on the basis of the selection test held on 251h March, 2012 and without giving and/or issuing appointment letters to the applicants first. Direct the Respondent authorities certi' and produce all documents and records in original relating to his case so that conscionable justice may be done in the instant application. Directing the respondent authorities not to initiate any recruitment process in terms of the list of the successfi.il candidates which has been published basis ., the written examination held on 25th March, 2012 and subsequent interview and practical test.
Costs and incidental expenses relating to the instant application. Ad interim injunction on the respondent authorities in terms of prayer [vi] above any order as the Hon'ble Tribunal deem fit and proper."
2. The applicants have specifically pleaded as under
They successfully completed training in 451746th147th148ih Batches, during the period from 2006 to 2008. The respondent Factory initiated recruitment of its ex-trade apprentices for 396 vacancies in Semi-skilled grades of workmen. The applicants along with other ex-TAs were called for Interview/Skilled Test on different dates from 23" July, 2010 to
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4. OA/350/00499/2012 51h August, 2010.
The applicants appeared for the said Interview/Skill Test and were declared 'FIT' by a duly constituted Board of three Officers.
The recruitment process was carried out in terms of instructions contained in OFB letter dated 15/20.10.1999. According to the provisions of the said letter, the Factories were required to. maintain seniority lists of its Ex-Trade Apprentices and as and when vacancies • would arise factories were permitted to make direct induction, at the first instance from ex-trade apprentices of their own factory and if the factory failed to meet the requirement of candidates for recruitment from the list of their ex trade, apprentices maintained either because of exhausting the list or because of unsuitability/ineligibility of the ex-TAs. The factory could noti' such number of vacancies as required by them to the Employment Exchange. Simultaneously the factory had to notify vacancies in the Newspaper/Employment News. Thus, the rules and guidelines made it deaf that the ex-Trade 1 Apprentices of the factory concerned would have the right to be considered first for appointment before candidates from outside were considered for recruitment.
The applicants were interviewedJskill tested against total 279 posts of Machinist, Fitter and Turner during 23td July 2010 and 51h August, 2010 and were duly found 'fit' by the Board. The respondents without giving appointment to the applicants, published an advertisement on 06.07.2011 in the Newspaper for OA/350/00499/2012 direct recruitment to 175 posts consisting of Maéhinist - 165, Welder -06 and Electrician -04.
Hence, the instant OA No. 499 of 2012.
3. The admitted facts that could be culled out from the pleadings of the respondents , are as under -
The applicants are Ex Trade Apprentices of Gun & Shell Factory, Cossipore, and completed their Apprenticeship Training in the various Trades.
As per the provision of Apprenticeship Act, 1961, the Management of the Establishment, where the apprentice undergoes training, is neither bound to offer employment on completion of Training nor the trainee is obliged to accept the offer of appointment, if so made. The relationship in between a trainee and the Management ceases to exist on completion of training. An agreement/contract to this effect is also made at the beginning of training.
Gun & Shell Factory, Cossipore started recruitment process to fill up 296 vacancies in various Trades of Semi Skilled Grade [Industrial Establishment] in the year 2010 in terms of the then prevailing instruction and guideline. In this process, 370 Ex. Trade Apprentice in the Trade of .?. Machinist, Turner & Fitter and 39 Ex Trade Apprentices in the Trade: of., Electrician of the Factory were called for an Interview/Skill Test for appointment in the required trades. p The applicants too were called for Interview/Skill Test. According to the respondents, they were called as Extra Zone candidates.
After completion of said Interview/Skill Test and before preparation of final Selection List, as per existing practice in vogue, a close scrutiny was made. During the said scrutiny, it was observed that as per AITT Batch I
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6. OA/350/00499/2012
seniori, 43 numbers of Ex Trade Apprentices in the Trade of Welder were senior to the candidates who were called for interview/Skilled test in the Extra Zone. The call letters in favour of the Ex Trade Apprentices in the Trade of Welder could no be issued since at that time there was no functional requirement of Welder in the Factory.
Since the Extra Zone Candidates including the applicants were junior to the Ex Trade Apprentices belonging to Welder Trade in accordance with ALIT Batch, as a model employer it was considered that it would not be proper to select the Extra Zone candidates being junior to the Welders, depriving the Welders being senior to them. Accordingly, it w as decided that Selection List in respect of those candidates who were senior to the Ex Trade Apprentices of the Welder Trade may be prepared and the selection of those Extra Zone candidates could be made as they were batch junior to the Welders [as per AliT Batch seniority]. Their case may be considered when the remaining unfilled vacancies would be filled up.
Since at that time there was no fUnctional requirements in the Trade of Welder in Gun & Shell Factory, it was also decided that to maintain the Batch Seniority, the Ex Trade Apprentices belonging to Welder Trade may be provided in other Trades like Machinist, Trade by way of imparting training for reasonable period and after obtaining their fitness by a Trade Test Board within the aforesaid remaining unfilled vacancies.
After the above exercise, if deficiency still remained to be filled up posts, the same could be filled up from the Extra Zone candidates who were declared 'FIT' earlier.
Accordingly, the Select List of 221 candidates, who were senior to most [as per AlIT Batch] to the Welders, was published and 175 vacancies were lying.
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7. OA/350/00499/2012 [10] Such actions were ithtiated towards remaining 175 vacancies. By doing so, on completion of training for one month, call letters dated 22.11.2010 were issued to the Welders for an Interview/Skill Test/Fitness in the post of Machinist which was scheduled to be held on 06.12.2010. [II] A writ Appeal bearing no. 316/2007 filed before the Madurai Bench of the Hon'ble Madras High Court, was disposed of with Judgement & Order dated 14.12.2007. It was held therein that the requisitioning department should call for the list of eligible candidates from Employment Exchange and the apprentice department and shall invite candidates by publication in Newspapers and other media and then consider the cases of all the candidates who have applied.
An SLP was preferred by U.O.J. &Ors. before the Hon'ble Apex Court challenging he said judgement and order dated 14.12.2007. The Hon'ble Apex Court under judgment and order dated 15.11.2010, did no F intervene with the impugned judgement dated 14.12.2007 and dismissed the SLP [Annexure-R/l and R/21.
In the light of the Hon'ble Supreme Court's judgment and order dated 15.11.2010, the Ordinance Factory Board issued the instructions dated 06.01.2011 to all the Ordinance & Ordinance Equipments Factories in India, stating that the selection made and select list published before the date of F order of the Hon'ble Apex court i.e. 15.11.2010, can be proceeded further for appointment. However, the select list not finalized and published before F this date should be abandoned and requirement in such case may be made as per the order of the Hon'ble Apex Court.
In terms of the directions given by the Madurai Bench of the Hon'ble Madras High Court and the Hon'ble Apex Court, the revised guidelines/procedures for direct requirement of Ex Trade Apprentices in I
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8. OA/350/00499/2012 Ordinance Factories, superseding the earlier policy/practice/guidelines, was also issued by the Ordinance Factory Board under the letter dated 06.01.2011.
[151 Accordingly, the recruitment actions towards unfilled 175 vacancies which was initiated just before the pronouncement of the judgment and order of the Hon'ble Supreme court, was finally discontinued.
Since the final selection in favour of the applicants was not completed before pronouncement of judgment and order dated 15.11.2010 of the Hn'ble Supreme Court, their case had to be governed under the ratio of the Hon'ble Supreme Court's order, In terms of the revised guidelines framed by the Ordinance Factory Board under letter dated 06.01.2011 [in compliance with Hon'ble Apex Court's order dated 15.10.2010], the action for filling up 175 unfilled vacancies were taken. A notification in this regard was published in the Employment News on 06.08.2011 and a list of eligible candidates was called for from the Employment Exchange.
[I ] After following all the procedure of law, the selection process has already been completed and the final selection list on the basis of merit has already been published. The actions towards PVR in respect of selected ci candidates have already been made.
[19] When the final selection in favour of the applicants was not made . 1• before the pronouncement of the judgment and order dated 15,11 .2010, in terms of the Hdn'ble Apex Court's order, they had to face the competitive examination for seeking employment along with others.
4. The applicants claimed that their selection was over long before pronouncement of the Hon'ble Apex Court's judgement and therefore, they deserved fitment as per selection wherein they were already declared fit. 9/ 91 OA/350/00499/2012 They ought not to be subjected to fresh selection process.
Per contra, the respondents averred that their selection being not yet over, they had to be subjected to fresh recruitment process.
Therefore, the issue that fell for considerations were two folds - [I] Whether the selection of the applicants was completed before the Hon'ble Apex Court's judgment.
[ii] And in the event it was, whether they deserved relief as sought for.
We discerned as under :-
[i] The present applicants were selected in terms of the guidelines of 15/20.10.1999 [Annexure6] which stipulated as under:
"Sub. Recruitment of Ex-trade Apprentices in OFs. It has been represented in JCM III Level Council meeting that factories are not following uniform procedure in recruiting Ex- trade Apprentices of the factories. It was mentioned that factories follow d(fferent methods in selectihg Ex-Trade Apprentices for recruitment. He matter has been under examination in this Hqrs. For quite some time and it has been decided that a common uniform method/procedure of recruitment should be followed by all factories keeping in view various Govt. instructions and judicial pronouncements on the subject.
Instructions have been issued vide Circular No. 520/All dated 14.05.06 that cc-trade apprentices should be given preference in recruitment in pursuance of the directives of Mm. of Labour which were based on the Supreme Court Judgment in UPSRTC Yrs. UP Parivahan Nigam Shishukh Berozgar Sangh on the subject. DOP&T has also issued instructions in pursuance of another Apex Court judgment on the necessity of not ffring the vacancies in Newspapers while approaching Employment Exchanges for sponsoring of candidates for recruitment. Th6e has also been judicial pronouncement on subjecting the ex-trade apprentices to tests/interviews etc. In compliance with the Supreme Court judgment effort will be made to meet the requirements by appointing ex TAs of the factory as far as possible. Only when cc Tas of the factory are not available recruitment from other sources will be resorted to.
Keeping in view the above, instructions and functional If
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10. OA/350/00499/2012 requirement of factories, the following procedures will be adopted for direct recruitment of industrial employees: Phase:1 The factories shall maintain the seniority list of ex-trade apprentices of their own factory Apprentices trained in the earlier batch will be en-bloc senior to the apprentices of the subsequent batches. While maintaining the batch-wise seniority, marks/grading obtained on NCTYT examination will be the criterion for determining the intra-batch seniority of the apprentices.
As and when vacancies arise, factories are permitted to make direct induction on the first instance, ex-trade apprentices of their own factory will be considered for recruitment as already explained in the preceding para.
Selection process is based on fitness cum seniority. Only trade test will be conducted to ascertain whether the ex-trade apprentice is fit for the job or not. If he is unfit [Lg. he failed in trade test] he is to be inducted Amongst the candidates who pass the trade test, and are therefore fit, the selection will be done strictly on seniority. That is why it is very important that the factories maintain accurately batch-wise and in he same batch seniority list. The trade test should be same as in the trade test conducted for promotions of industrial employees by the selection board in the test.
Factories should normally testing the call of a trade apprentices ... the test one and half times the number of vacancies intended to be filled up. This is to provide necessary cushion to meet the eventuality of some of the candidates so called not tuning up for the test or failing in test. Once the number of candidates selected/passed reaches the number required, the test is to be stopped. This is necessary as maintaining a waiting list of selected candidates has its problems, leading o litigation later.
Phase -- Il [i] If the factory fails to meet the requirement of candidates for recruitment from the list of their ex-trade apprentices, maintaining either because of exhausting the list or because of the unsuitability/ineligibility of the ex-Tas in the list, the factory may not j5' such number of vacancies as required by them to the Emjloyment Exchange. Simultaneously, the factory will have to no4fy the vacancies in Newspapers/Employment News as provided in DOP&T letter No. 14024/2/96-Estt. Dated 18.05.2008 circulated vide OFU letter No. 039161/A/A dated 24.08.1998. While not(i5iing the vacancies to the Employment Exchange or in the Newspapers a mention may be made to the effect that [ex-TAs of Ofs would be given preference or they
11. oA/350/00499/2012 v are conversant with jobs in Oft and have been trained by Ofs incurring expenditure. While giving preference in recruitment through advertisement to the Ex-TAs of other fqctories, the criterion of seniority-cum-suitability may be adopted in determining their relative merit in the selection test [ii] xxx xxx xxx [ii] The applicants were permitted to appear at interview/skill test for semi-skilled grades with stipulation as under "Sub : IE - Interview/Skill Test for considering appointment in the Semi-Skilled Grade.
You are heieby directed to call on this factory on August 2010 at 9.00 A.M. for an Interview/Skill Test for considering your eligibility for appointment in the,: Semi-Skilled Grade in the pay Band-I with a Grade pay of R±. 1800/- p.m ;and other allowances as admissible under the existing Government orders.
It may please be borne in mind that you will be interviewed subject to non-availability of seniority Ex-TAs."
On 06.01.2011 [Annexure-S/1], the Ordinance Factory Board issued the following guidelines "[a] Re4ruitment action involving only outside candidates through open advertisement/Employment Exchange may be processed and finalized by carrying out selection strictly on relative merit. [b] Cases [in which recruitment action is yet to be initiated or selection is yet to be completedi will be processed in accordance with revised procedure pursuant to Hon'ble Supreme Court Judgement on the subject annexed herewith. [ci In case of recruitment process for which selection has been completed before the date of Hon'ble SUpreme Court judgement further necessary action may be taken." The date of interview as evident from Annexur-S-7, wherein the applicants were declared "FIT, was held between 23.07.2010 and 05.08.2010, i.e. long before issuance of the order supra and the result thereof were signed. Therefore, their selection was over long before the guidelines dated 06.01.2011 was introduced. Admittedly, no Ex- T.As. were available for appointment.
A' 1
12. OA/350/00499/2012 [v] The respondents have either deliberately or out of sheer ignorance misconstrued "in which recruitment actièn is yet to be initiatd or selection is yet to be completed", of the said guidelines/ circular as "seleci list not finaliztd and published" before that date had to be abandoned and therefore abandoned the selection list dated 04.08.2010 where the applicants were upon interviek' found "FIT" The respondents in order to give benefit to a group ofj Welders, could not be' allowed to deprive the applicants, [viJ The respondents are conspicuous by their silence about the selection procedure/recmient process, whether aftdr the interview and declaration of candidates as "FIT" the candidAtes had to be subjected to some other rigours before finalization of tile panel.
8. In view of the revelations supra, we find sufficient force in the arguments advanced by the applicants that recruitment process being initiated in 2010 and applicants being declared "FIT" ' for election as on 04.08.2010, the respondents were bound to appoint them a per erstwhile guidelines of :1 999 keeping in view the Hon'ble Apex Courds decision and the guidelines of 06.01.2011 extracted supra.
9. Accordingly, we direct the respondent authorities to, act upon the result dated 04.08.2010, 23.07.2010 and 05.08.2010 as: contained in Annexure-s7 of supplementai'y affidavit for filling up thd vacancies of 2010 selectiop and then to resort to selection in terms of impugned notification dated 06.07.2011 by three months from the date bf receipt of a copy of this order.
[BidishaJiIncrjee] Member [Admn.
Memb& [Judicial] 'nps/-
II