Madras High Court
M.Ravi vs The Management on 13 December, 2017
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :13.12.2017 CORAM THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN W.P(MD)No.5560 of 2014 1.M.Ravi 2.K.A.Jesuraj 3.S.Natarajan 4.P.Renganathan ... Petitioners Vs. 1.The Management, Bharat Heavy Electricals Limited, BHEL, Corporate Office, Siri Fort, New Delhi-110 049. 2.The General Manager, Bharat Heavy Electricals Limited, Trichy-620 014. 3.The Senior Manager/HR, (Recruitment & Systems) Bharat Heavy Electricals Limited, Trichy-620 014. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, directing the respondents to consider the case of the petitioners for appointment in permanent regular services in the respondents company for the posts of Artisans, as per the provisions of the Apprentices Act, 1961, based on the Principles laid down by this Court made in W.A.Nos.685 to 687 of 2007 and W.P.Nos.7657, 9711 to 9715 of 2006 and 9639 of 2007, dated 14.05.2007. !For Petitioners : Mr.AR.Nambunaygam For Respondents : No Appearance :ORDER
This writ petition has been filed, seeking to issue a direction to the respondents to consider the case of the petitioners, for appointment in permanent regular services in the respondents company for the posts of Artisans, as per the provisions of the Apprentices Act, 1961.
2.The petitioners have completed their course of Fitters, Turner, Mechanist, respectively in various Government Indian Technical Institutes and successfully got their certificates and enrolled their qualifications in their native District Employment Exchanges. Thereafter, the petitioners 1 to 4 have been called by the respondent company through the concerned Employment Exchanges, where they have been enrolled their technical qualification for selection for apprenticeship and they undergone one year apprenticeship training and obtained course completion certificate from the respondent's company and National Apprenticeship Certificate from National Council for Vocational Training, Ministry of Labour, and Government of India. After obtaining the said certificates, the petitioners were waiting with a fond hope that the respondent company will give first preference to them while making recruitment for the post of Artisans as they were fully qualified for the said posts. It is further stated that the first respondent used to call for applications through Employment Exchange for recruiting apprentices. The apprentices were selected and appointed only after successfully clearing the written test, practical test, psychology test and interview. The apprentices had successfully qualified themselves by passing I.T.I in various trades. The apprenticeship training was for a period of one year. The respondent had a clear copy of recruitment and absorption of such apprentices. In fact some of them were even called for a personal interview in this regard for formal absorption. A number of trained apprentices had attained permanency status also. Some of them filed applications, before the competent authority and earned awards in their favour. This Hon'ble Court also dismissed a batch of writ petitions filed by the Management, questioning the said awards conferring status of permanency in favour of some of the workmen who worked as N.M.R after completion of the apprenticeship training. Even though trained apprentices were very much available, the respondent follows a discriminatory policy in the Trichy Unit. As a result, the petitioners were being excluded from the selection process. The petitioners were disqualified on the ground that they were over aged and as a result, they were not sponsored by the Employments Exchange for the recruitment.
3.The learned counsel for the petitioners submitted that this Hon'ble Court by order dated 12.10.2007 allowed the W.P(MD)No.8675 and 11160 of 2006, directing the management to grant appointment to the former apprentices in the permanent regular service of the respondent company in the Grade -4 post in various trades. This Hon'ble Court specifically took note of the settlement entered into between the Ranipet Unit of the respondent company and its workers and consequently held that there could not be a distinction between the Ranipet Unit and Trichy Unit. After elaborate consideration of the various aspects, the claim of the apprentices were upheld. The learned counsel for the petitioner submits that the said order squarely applies to the facts of the case on hand.
4.It is further submitted that the respondent company issued an Employment Notice No.283, calling for applications from candidates for appointment to the post of artisans. There were 315 vacancies for the post of fitters, 65 in the post of welders, 10 in the post of electricians, 40 in the post of crane operators, 20 in the post of riggers. The notification has been published in the Daily Thanthi dated 03.11.2007, wherein the last date for the receipt of the application was set as 24.11.2007. Immediately thereafter apprentices, similarly placed, approached this Hon'ble Court, challenging the notification by way of writ petitions and this Court was pleased to allow them with a direction to the respondents herein to give preference to the apprentices over the direct recruits. The petitioners sent a representation separately to the respondents to consider for the post of Artisans based upon the Principles laid by the Hon'ble High Court order dated 14.05.2008 made in W.A.Nos.685 to 687 of 2007 and W.P.Nos.7657, 9711 to 9715 of 2006 and 9639 of 2007, but till date there was no reply from the respondents. Now the respondents calling for application for the posts of Artisans and the said notification has been published in the Daily Thanthi, dated 16.09.2013 and the last date for the receipt of the application was on 05.10.2013. Hence, this Writ Petition.
5.Heard the learned counsel for the petitioners.
6.It is brought to the notice of this Court that a batch of Writ Petitions were filed by the apprentices, who have completed apprenticeship training in Bharat Heavy Electrical Limited (BHEL), claiming appointment in permanent regular service in Bharat Heavy Electrical Limited for various posts. The very same prayer is also sought for in this Writ Petition.
7.In the batch of Writ Petitions mentioned above, namely in W.P(MD)Nos.6656 of 2005 etc., batch, (R.Subbiah Vs. The Management of BHEL Rep. by its Chairman and Managing Director), this Court by an order, dated 04.08.2014, after considering the issue involved in those Writ Petitions in detail, has held that the conduct of the respondent/Management in not providing employment to the petitioners are based on factual and legal basis. It was further held that the respondent/Management cannot be said to have adopted different yardstick insofar as the petitioners are concerned and the petitioners cannot get any preference in employment as claimed by them.
8.In this context, reference can be made to paragraph Nos.24 and 25 of the order, dated 04.08.2014, and the same reads as follows:-
?24.As the conduct of the respondent management in not providing employment to the petitioners is thus based on factual and legal basis as explained above, the respondent Management cannot be said to have adopted different yard stick insofar as the petitioners are concerned and the present set of petitioners cannot get any preference in employment. At this juncture, the learned counsel for the petitioners has by relying on the following Judgments, contended that when the similarly placed apprentices were already given employment either under Section 12(3) Settlement or on the strength of the consent order passed by the Hon'ble Apex Court, there is absolutely no reason to deny the same to the present set of petitioners: (i) 1991 Supp (2) SCC 294 (Ashish Mathur Vs. Oil and Natural Gas Commission and others); and
(ii) 2011 (4) LLN 354 (DB) (Mad) (The Chairman, Tamil Nadu Electricity Board and another Vs. D.Venkatesan and another). However, the same are not applicable to the facts of the present case. As the grounds on which other set of workers were absorbed are no longer available to the present petitioners and as there was ban on recruitment during the relevant period and as the recruitment policy was also changed due to the guidelines issued by the judiciary as well as executive, the question of extending the same benefit to the petitioners herein does not arise. Considering the then prevailing circumstances, the petitioners herein cannot be now permitted to say that they have the right of legitimate expectation of employment in the respondent BHEL.
25.One more ground on which the learned Senior Counsel for the respondent BHEL opposed the petitioners' claim for employment is that they are over aged. The learned Senior Counsel for the respondent BHEL management has, by relying on the following Judgments reiterated that the management cannot be called upon to violate its own Rules and Regulations in the matter of recruitment: (i) (2006) 8 SCC 671 (Kendriya Vidyalaya Sangathan Vs. Sajal Kumar Roy); and (ii) (2011) 3 SCC 436 State of Orissa Vs. Mamata Mohanty. In both the cases, the Hon'ble Apex Court following the earlier decisions, is of the view that ?the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations and it is intended to be used in marginal cases where exceptionally qualified candidates are available and it is not intended as an 'open sesame' for all and sundry.....?. ?In the absence of an enabling provision for grant of relaxation, no relaxation can be made. Even if such a power is provided under the statute, it cannot be exercised arbitrarily and such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the statute.?
9.It is further held in the order, dated 04.08.2014, that the claim of the petitioners were factually and legally unsustainable and they were not entitled to claim any relief and the Writ Petitions were dismissed.
10.In the light of the above decision rendered by this Court, while dismissing the identical prayer sought for by the petitioner, the relief sought for in this Writ Petition cannot be granted. Accordingly, the Writ Petition is dismissed. No costs.
To
1.The Management, Bharat Heavy Electricals Limited, BHEL, Corporate Office, Siri Fort, New Delhi-110 049.
2.The General Manager, Bharat Heavy Electricals Limited, Trichy-620 014.
3.The Senior Manager/ HR, (Recruitment & Systems) Bharat Heavy Electricals Limited, Trichy-620 014.
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