Gujarat High Court
Katara Somabhai Chandubhai & vs Madhya Gujarat Vij Company Ltdthrou. ... on 14 February, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/LPA/1138/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1138 of 2004
In SPECIAL CIVIL APPLICATION NO. 41 of 2003
With
LETTERS PATENT APPEAL NO. 1139 of 2004
In
SPECIAL CIVIL APPLICATION NO. 37 of 2003
With
LETTERS PATENT APPEAL NO. 1140 of 2004
In
SPECIAL CIVIL APPLICATION NO. 8714 of 2003
With
LETTERS PATENT APPEAL NO. 2681 of 2010
In
SPECIAL CIVIL APPLICATION NO. 37 of 2003
With
LETTERS PATENT APPEAL NO. 851 of 2013
In
SPECIAL CIVIL APPLICATION NO. 41 of 2003
With
CIVIL APPLICATION NO. 6798 of 2013
In
LETTERS PATENT APPEAL NO. 851 of 2013
With
SPECIAL CIVIL APPLICATION NO. 9172 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9173 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9232 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9233 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9234 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9235 of 2004
With
Page 1 of 43
C/LPA/1138/2004 JUDGMENT
SPECIAL CIVIL APPLICATION NO. 6199 of 2004
With
SPECIAL CIVIL APPLICATION NO. 6303 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8478 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8479 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8480 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8481 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8482 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8483 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8736 of 2004
With
SPECIAL CIVIL APPLICATION NO. 2015 of 2004
With
SPECIAL CIVIL APPLICATION NO. 2030 of 2004
With
SPECIAL CIVIL APPLICATION NO. 2405 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8338 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8072 of 2004
With
SPECIAL CIVIL APPLICATION NO. 1812 of 2004
With
SPECIAL CIVIL APPLICATION NO. 6306 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8735 of 2004
With
SPECIAL CIVIL APPLICATION NO. 2118 of 2004
With
Page 2 of 43
C/LPA/1138/2004 JUDGMENT
SPECIAL CIVIL APPLICATION NO. 2116 of 2004
With
SPECIAL CIVIL APPLICATION NO. 13162 of 2004
With
SPECIAL CIVIL APPLICATION NO. 14112 of 2010
With
SPECIAL CIVIL APPLICATION NO. 14428 of 2010
With
SPECIAL CIVIL APPLICATION NO. 4809 of 2008
With
SPECIAL CIVIL APPLICATION NO. 3200 of 2005
with
SPECIAL CIVIL APPLICATION NO. 846 of 2001
With
SPECIAL CIVIL APPLICATION NO. 9869 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9870 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9873 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9874 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9875 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9876 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9877 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9878 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9879 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9864 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9865 of 2002
With
Page 3 of 43
C/LPA/1138/2004 JUDGMENT
SPECIAL CIVIL APPLICATION NO. 9866 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9867 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9868 of 2002
With
SPECIAL CIVIL APPLICATION NO. 12399 of 2006
With
SPECIAL CIVIL APPLICATION NO. 12400 of 2006
With
SPECIAL CIVIL APPLICATION NO. 12401 of 2006
With
SPECIAL CIVIL APPLICATION NO. 12402 of 2006
With
SPECIAL CIVIL APPLICATION NO. 12403 of 2006
With
SPECIAL CIVIL APPLICATION NO. 12404 of 2006
With
SPECIAL CIVIL APPLICATION NO. 6085 of 2008
With
SPECIAL CIVIL APPLICATION NO. 6086 of 2008
With
SPECIAL CIVIL APPLICATION NO. 6087 of 2008
With
SPECIAL CIVIL APPLICATION NO. 6088 of 2008
With
SPECIAL CIVIL APPLICATION NO. 6089 of 2008
With
SPECIAL CIVIL APPLICATION NO. 6090 of 2008
With
SPECIAL CIVIL APPLICATION NO. 8737 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8738 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9171 of 2004
With
CIVIL APPLICATION NO. 5985 of 2004
In
Page 4 of 43
C/LPA/1138/2004 JUDGMENT
LETTERS PATENT APPEAL NO. 1138 of 2004
With
SPECIAL CIVIL APPLICATION NO. 11176 of 2012
With
SPECIAL CIVIL APPLICATION NO. 2440 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8801 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8803 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8810 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8815 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8828 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9170 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9174 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9231 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9236 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9811 of 2004
With
SPECIAL CIVIL APPLICATION NO. 10522 of 2004
With
SPECIAL CIVIL APPLICATION NO. 10526 of 2004
With
SPECIAL CIVIL APPLICATION NO. 10842 of 2004
With
SPECIAL CIVIL APPLICATION NO. 16153 of 2004
With
SPECIAL CIVIL APPLICATION NO. 16224 of 2004
With
SPECIAL CIVIL APPLICATION NO. 16627 of 2004
With
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SPECIAL CIVIL APPLICATION NO. 13608 of 2005
With
SPECIAL CIVIL APPLICATION NO. 13622 of 2005
With
SPECIAL CIVIL APPLICATION NO. 14951 of 2005
With
SPECIAL CIVIL APPLICATION NO. 13920 of 2003
With
SPECIAL CIVIL APPLICATION NO. 10488 of 2002
With
SPECIAL CIVIL APPLICATION NO. 2869 of 2001
With
SPECIAL CIVIL APPLICATION NO. 2086 of 2001
With
SPECIAL CIVIL APPLICATION NO. 10641 of 2010
With
SPECIAL CIVIL APPLICATION NO. 2387 of 2008
With
SPECIAL CIVIL APPLICATION NO. 5285 of 2010
With
SPECIAL CIVIL APPLICATION NO. 6091 of 2008
With
SPECIAL CIVIL APPLICATION NO. 750 of 2009
With
SPECIAL CIVIL APPLICATION NO. 6084 of 2008
With
SPECIAL CIVIL APPLICATION NO. 11779 of 2008
With
SPECIAL CIVIL APPLICATION NO. 10818 of 2008
With
SPECIAL CIVIL APPLICATION NO. 3472 of 2010
With
SPECIAL CIVIL APPLICATION NO. 3355 of 2010
With
SPECIAL CIVIL APPLICATION NO. 7401 of 2008
With
SPECIAL CIVIL APPLICATION NO. 9018 of 2008
With
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SPECIAL CIVIL APPLICATION NO. 9019 of 2008
With
SPECIAL CIVIL APPLICATION NO. 2120 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8867 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9338 of 2010
With
SPECIAL CIVIL APPLICATION NO. 8330 of 2008
With
SPECIAL CIVIL APPLICATION NO. 8471 of 2008
With
SPECIAL CIVIL APPLICATION NO. 17641 of 2005
With
SPECIAL CIVIL APPLICATION NO. 4799 of 2010
With
SPECIAL CIVIL APPLICATION NO. 9872 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9880 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9863 of 2002
With
SPECIAL CIVIL APPLICATION NO. 9871 of 2002
With
SPECIAL CIVIL APPLICATION NO. 4635 of 2010
With
SPECIAL CIVIL APPLICATION NO. 4732 of 2010
With
SPECIAL CIVIL APPLICATION NO. 4733 of 2010
With
SPECIAL CIVIL APPLICATION NO. 8739 of 2004
With
SPECIAL CIVIL APPLICATION NO. 12398 of 2006
With
SPECIAL CIVIL APPLICATION NO. 16247 of 2006
With
SPECIAL CIVIL APPLICATION NO. 25014 of 2006
With
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C/LPA/1138/2004 JUDGMENT
SPECIAL CIVIL APPLICATION NO. 30906 of 2007
With
SPECIAL CIVIL APPLICATION NO. 30907 of 2007
With
SPECIAL CIVIL APPLICATION NO. 30908 of 2007
With
SPECIAL CIVIL APPLICATION NO. 30909 of 2007
With
SPECIAL CIVIL APPLICATION NO. 30910 of 2007
With
SPECIAL CIVIL APPLICATION NO. 15861 of 2003
With
SPECIAL CIVIL APPLICATION NO. 4808 of 2008
With
SPECIAL CIVIL APPLICATION NO. 8477 of 2004
With
SPECIAL CIVIL APPLICATION NO. 8484 of 2004
With
SPECIAL CIVIL APPLICATION NO. 9862 of 2002
With
SPECIAL CIVIL APPLICATION NO. 4812 of 2008
TO
SPECIAL CIVIL APPLICATION NO. 4815 of 2008
With
SPECIAL CIVIL APPLICATION NO. 15900 of 2008
With
SPECIAL CIVIL APPLICATION NO. 15902 of 2008
With
SPECIAL CIVIL APPLICATION NO. 8189 of 2006
TO
SPECIAL CIVIL APPLICATION NO. 8192 of 2006
With
SPECIAL CIVIL APPLICATION NO. 25085 of 2007
TO
SPECIAL CIVIL APPLICATION NO. 25093 of 2007
With
SPECIAL CIVIL APPLICATION NO. 4811 of 2008
With
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SPECIAL CIVIL APPLICATION NO. 4810 of 2008
With
SPECIAL CIVIL APPLICATION NO. 2545 of 2004
With
LETTERS PATENT APPEAL NO. 282 of 2009
In
SPECIAL CIVIL APPLICATION NO. 3073 of 2003
TO
LETTERS PATENT APPEAL NO. 295 of 2009
In
SPECIAL CIVIL APPLICATION NO. 2753 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
KATARA SOMABHAI CHANDUBHAI & 1....Appellant(s)
Versus
MADHYA GUJARAT VIJ COMPANY LTDTHROU. CHAIRMAN &
4....Respondent(s)
================================================================
Appearance:
Page 9 of 43
C/LPA/1138/2004 JUDGMENT
MR GIRISH PATEL with MR MANOJ SHRIMALI, MR BB OZA, MR ZUBIN F
BHARDA, MR UM SHASTRI, MR KN SHASTRI, MR TR MISHRA, MR NIRZAR
DESAI, MR MTM HAKIM, MR SHIVANG SHAH, MR MURALI DEVNANI,
ADVOCATES for the candidates.
MR MD PANDYA AND MR SP HASURKAR for the Electricity Companies.
MR JAIMIN GANDHI, AGP for the State Government
MR SHAKEEL A QURESHI, ADVOCATE for Director General of Employment
and Training - NCVT.
===========================================================
CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 14 & 17/02/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. In this group of matters, common question involved is of the requirement of apprentice trainees to pass vocational trade test conducted by the National Council for Vocational Training, popularly referred to as NCVT before they can be absorbed in the regular establishment of the respondents in the cadre of Helpers. The issue has reached before this Court through slightly different routes in different sets of petitions/appeals. We would broadly classify such proceedings in following categories:
Category A
2. In this category, Special Civil Application No.10488 of 2002 is treated as lead matter and would include, besides others, following writ petitions:
Page 10 of 43C/LPA/1138/2004 JUDGMENT
1. Special Civil Application No.8072 of 2004
2. Special Civil Application No.1812 of 2004
3. Special Civil Application No.2015 of 2004
4. Special Civil Application No.2030 of 2004
5. Special Civil Application No.2116 of 2004
6. Special Civil Application No.2118 of 2004
7. Special Civil Application No.2120 of 2004
8. Special Civil Application No.2440 of 2004
9. Special Civil Application No.2545 of 2004
10.Special Civil Application No.8735 of 2004
11.Special Civil Application No.8736 of 2004
12.Special Civil Application No.8737 of 2004
13.Special Civil Application No.8738 of 2004
14.Special Civil Application No.8739 of 2004
15.Special Civil Application No.8477 of 2004
16.Special Civil Application No.8478 of 2004
17.Special Civil Application No.8479 of 2004
18.Special Civil Application No.8480 of 2004
19.Special Civil Application No.8481 of 2004
20.Special Civil Application No.8482 of 2004
21.Special Civil Application No.8483 of 2004
22.Special Civil Application No.8484 of 2004
23.Special Civil Application No.8801 of 2004
24.Special Civil Application No.8803 of 2004
25.Special Civil Application No.8810 of 2004
26.Special Civil Application No.8815 of 2004
27.Special Civil Application No.8828 of 2004
28.Special Civil Application No.8338 of 2004
29.Special Civil Application No.9170 of 2004 Page 11 of 43 C/LPA/1138/2004 JUDGMENT
30.Special Civil Application No.9171 of 2004
31.Special Civil Application No.9172 of 2004
32.Special Civil Application No.9173 of 2004
33.Special Civil Application No.9174 of 2004
34.Special Civil Application No.9231 of 2004
35.Special Civil Application No.9232 of 2004
36.Special Civil Application No.9233 of 2004
37.Special Civil Application No.9234 of 2004
38.Special Civil Application No.9235 of 2004
39.Special Civil Application No.9236 of 2004
40.Special Civil Application No.9811 of 2004
41.Special Civil Application No.10842 of 2004
42.Special Civil Application No.10522 of 2004
43.Special Civil Application No.10526 of 2004
44.Special Civil Application No.16153 of 2004
45.Special Civil Application No.16224 of 2004
46.Special Civil Application No.16627 of 2004
47.Special Civil Application No.6303 of 2004
48.Special Civil Application No.6306 of 2004
49.Special Civil Application No.6199 of 2004
50.Special Civil Application No.13608 of 2005
51.Special Civil Application No.13622 of 2005
52.Special Civil Application No.14951 of 2005
53.Special Civil Application No.17641 of 2005
54.Special Civil Application No.15861 of 2003
55.Special Civil Application No.8189 of 2006
56.Special Civil Application No.8190 of 2006
57.Special Civil Application No.8191 of 2006
58.Special Civil Application No.8192 of 2006 Page 12 of 43 C/LPA/1138/2004 JUDGMENT
59.Special Civil Application No.12398 of 2006
60.Special Civil Application No.12399 of 2006
61.Special Civil Application No.12400 of 2006
62.Special Civil Application No.12401 of 2006
63.Special Civil Application No.12402 of 2006
64.Special Civil Application No.12403 of 2006
65.Special Civil Application No.12404 of 2006
66.Special Civil Application No.25014 of 2006
67.Special Civil Application No.16247 of 2006
68.Special Civil Application No.30909 of 2007
69.Special Civil Application No.30906 of 2007
70.Special Civil Application No.30907 of 2007
71.Special Civil Application No.30908 of 2007
72.Special Civil Application No.30910 of 2007
73.Special Civil Application No.2387 of 2008
74.Special Civil Application No.10641 of 2010
75.Special Civil Application No.11176 of 2012
76.Special Civil Application No.7401 of 2008
77.Special Civil Application No.13920 of 2003
78.Special Civil Application No.3472 of 2010
79.Special Civil Application No.10488 of 2002
80.Special Civil Application No.846 of 2001
81.Special Civil Application No.2869 of 2001
82.Special Civil Application No.2086 of o2001
83.Special Civil Application No.8330 of 2008
84.Special Civil Application No.14428 of 2010
85.Special Civil Application No.3355 of 2010
86.Special Civil Application No.4635 of 2010
87.Special Civil Application No.8867 of 2002 Page 13 of 43 C/LPA/1138/2004 JUDGMENT
3. Facts as emerging from the said petition are as under:
3.1 The petition was filed by 10 petitioners. The petitioners were selected for apprentice training to be imparted by the erstwhile Gujarat Electricity Board ('GEB' for short). They were sent for such training during the periods ranging from April 1994 to April 1997. The training was for apprentice lineman. The training period ranged between two to three years. All the petitioners completed their training with the Gujarat Electricity Board.
3.2 During the pendency of the petition, petitioners Nos.2, 4, 6, 8 and 10 having passed the trade test were appointed in the cadre of Helper. Their grievance, therefore, would not survive. However, petitioner Nos.1, 3, 5, 7 and 9 did not pass the trade test and they have not been appointed to the post of Helper. Case of these petitioners is that for being appointed to the post of Helper in Gujarat Electricity Board, at the relevant time, the only requirement was successful completion of apprentice training. Additional requirement of passing the NCVT examination was never followed by the GEB. The petitioners were placed in a list of candidates who had successfully completed the training and who would be appointed to the post of Helper in their turn.
3.3 When the respondents started appointing persons junior to the petitioners, i.e. the persons who appeared at serial numbers below those of the petitioners and which the petitioners came to know about, they represented to the GEB on 3.10.02. On 17.3.2002, the petitioners Page 14 of 43 C/LPA/1138/2004 JUDGMENT personally met the Chairman of the GEB and handed over a representation. Since the respondents did not respond to the representation of the petitioners, the present petition came to be filed. In such petition, the petitioners have prayed for a declaration that any appointment made to the said post of Helper without following the seniority is illegal and further to issue a direction appointing the petitioners to the said post of Helper on the basis of their seniority.
3.4 The stand of the GEB is that mere completion of the training period in the apprentice would not qualify a candidate for the post of Helper unless he also passes the trade test. Such requirement always existed right from the year 1983 and also flows from the statutory provisions contained in the Apprentices Act, 1961 ('the Act' for short).
Those petitioners who have therefore not passed trade test cannot claim any right of appointment. Being placed in the list of trainees who have completed their training period gives no vested right to a candidate for being appointed. The GEB contends that passing of the test is one of the essential requirements without which a candidate cannot be appointed even on the post of Helper.
Category B
4. Special Civil Application Nos.9862 to 9880 of 2002 form this group. This group contains following besides other writ petitions:
1. Special Civil Application No.9338 of 2010
2. Special Civil Application No.10641 of 2010
3. Special Civil Application No.25085 of 2007
4. Special Civil Application No.25093 of 2007 Page 15 of 43 C/LPA/1138/2004 JUDGMENT These petitions were filed by the candidates who had completed the apprentice training under GEB in the years between 1997 and 1998.
They had not passed the trade test. Nevertheless, GEB issued appointment orders to them on or around 2.4.2002 to the post of Helper (Wireman/Lineman). However, pursuant to such appointment orders, they were not allowed to report for duty on the ground that they had not passed the trade test. These petitioners, therefore, approached this Court. Such petitions were at one stage disposed of by a common judgment dated 29.10.2002 by the learned Single Judge granting opportunity to the petitioners to appear in the trade test to be conducted by the National Council for Vocational Training. It was provided that those petitioners who do not pass the examination at the first attempt shall be given further opportunities upto six maximum attempts and those who pass the examination would be appointed.
4.1 When such petitioners approached NCVT, it refused to conduct the tests on the ground that maximum period of three years provided for clearing the test after completion of the training having passed, no such test now can be held. These petitioners, therefore, filed review petitions being Misc. Civil Application Nos.360 to 378 of 2003. All these review petitions were allowed by a common order dated 22.8.2003. The learned Single Judge recalled his earlier judgment dated 29.10.2002 and revived the petitions. Here also, the central question is with regard to the prayer of the petitioners for being appointed to the post of Helper without passing the NCVT test.
Category C
Page 16 of 43
C/LPA/1138/2004 JUDGMENT
5. In this group, Letters Patent Appeal No.1138 of 2004 is treated as lead appeal. This group contains the following besides other appeals.
1. LPA No.1139 of 2004
2. LPA No.1140 of 2004
3. LPA No.2681 of 2010
4. LPA No.851 of 2013 5.1 Appellants of LPA No.1138 of 2004 were the original petitioners of Special Civil Application No.41 of 2003. These petitioners had also completed two/three years of training as apprentice in the period from 1993 to 1998 with GEB. They were also accordingly placed in the list of candidates who had completed such training. They had not passed the NCVT examination. They, therefore, initially filed Special Civil Application No.10098 of 2001. Such petition came to be disposed of by the learned Single Judge along with other petitions by order dated 1.4.2002. The petitioners were asked to make representations to the authorities. When the representations of such petitioners were not accepted, they filed fresh writ petitions being Special Civil Application No.37 of 2003 along with other petitions. Their petitions came to be dismissed by the learned Single Judge by a common judgment dated 10.12.2003. The learned Single Judge held that merely being placed in the list, the petitioners had no right to be appointed. She further held that passing the trade test was one of the requirements. Since the petitioners had not passed such test, they could not seek appointment. It is this judgment of the learned Single Judge that the appellants have challenged in LPA No.1138 of 2004.
Page 17 of 43C/LPA/1138/2004 JUDGMENT Category D
6. In this group, Letters Patent Appeal No.282 of 2009 shall be treated as the lead matter. This category contains following besides other appeals:
1. Letters Patent Appeal Nos.283 to 295 of 2009 6.1 LPA No.282 of 2009 is filed by the Gujarat Electricity Board now bifurcated and represented by Paschim Gujarat Vij Company Ltd ('PGVCL' for short). The respondents, the petitioners of Special Civil Application No.3073 of 2003 had undergone apprentice training with GEB in the trade of lineman and completed the same in the year 1997.
They had not passed the trade test, but were actually appointed to the post of Helper by the GEB by different orders according to their seniority. GEB, however, sought to terminate their services for which show cause notice dated 4th March 2003 was issued. In the show cause notice, it was stated that not having passed the trade test, they were not eligible for being appointed on the post of Helper. Since their appointments were ab initio wrong, GEB decided to cancel the same relying on clause 16 of GSO 7 which provided as under:
"Any candidate who is found to have knowingly furnished any particulars which are false or to have suppressed material information of a character, which if known, would ordinarily have debarred him from obtaining employment in the service of the Board is liable to be disqualified and if appointed to remove from service".Page 18 of 43
C/LPA/1138/2004 JUDGMENT These petitioners approached this Court by filing writ petition
challenging the show cause notice. The learned Single Judge by a common order dated 23rd August 2004 passed in Special Civil Application No.3073 of 2003 and similar other petitions allowed all the petitions. The learned Single Judge quashed the show cause notices holding that the requirement of passing of trade test did not apply to the post of Helper and such requirement was prescribed only for the post of lineman. It was, therefore, provided that the petitioners shall not be absorbed as linemen, but would be continued as Helper till the time they clear such test. It is this judgment of the learned Single Judge which the Board has challenged in the said Letters Patent Appeal.
7. It can thus be seen that though through different routes and slightly different factual background, all the proceedings before us involve one single central controversy, viz. whether for the post of Helper, requirement of passing the trade test was necessary and the Board could enforce such requirement and deny appointments to the apprentice trainees who though might have completed the training period had not passed the trade test.
8. Before taking note of the rival contentions and adverting to the legal controversy, few peripheral aspects may be cleared. Firstly, the Gujarat Electricity Board has now been bifurcated into different Electricity Companies in different geographical regions. In most of the petitions, GEB is substituted by successor Vij Company. In the petitions where such substitutions have not been carried out, all the petitioners are permitted and directed to do so forthwith.
9. The Act makes detailed provisions for apprentice training and for Page 19 of 43 C/LPA/1138/2004 JUDGMENT conduct of trade tests in designated trades. The Act envisages imparting training to the skilled workman in the designated trades. Section 21 of the Act provides for holding the tests and grant of certificate upon completion of the training. It is not in dispute that since long, GEB had been imparting such training to apprentices as sponsored by NCVT in the trade of lineman. Upon successful completion of the training by a candidate, he would be placed in a list referred to as data bank. Such list would be used for making appointments to the post of Helper as and when the vacancy arises, according to the seniority position of a candidate in such list.
10. We may notice that Schedule I to the Apprentice Rules 1992 which gives the list of designated trades does not include post of Helper though it includes the post of lineman and wireman. We may also record that under General Standing Order No.315 dated 10.7.90, the Electricity Board approved the qualification and experience for different posts in the Board as per Annexure A to the said GSO. For the post of lineman/wireman, for an outsider, the minimum requirement is "should have minimum five years experience in the HT/LT lines. This may be relaxed in case of who have undergone apprentice training as lineman"
whereas in case of Helper, the minimum qualification is second class WM certificate or ITI certificate and should have studied upto 9 th standard and should be physically strong and capable to climb poles. Significantly, in such circular for the post of Helper, no requirement of apprentice training or passing of the trade test is prescribed.
11. In letter dated 22nd July 1999, addressed by the Additional Chief Engineer, Mehsana of the Gujarat Electricity Board to the Superintending Engineer, Surendranagar, it was conveyed that the question of Page 20 of 43 C/LPA/1138/2004 JUDGMENT appointment of Shri M.M.Turi to the post of Helper was examined. The same was discussed with the Deputy General Manager, Shri DR Gupta, Head Office, Baroda who informed that the concerned candidate is not required to pass the examination. It is sufficient that he had satisfactorily completed the apprenticeship with the Board.
17.02.2014
12. At this stage, we may take note of the contents of various office orders and circulars issued by the Board from time to time.
12.1 In an office order dated 26.10.83, the Board issued instructions to standardize the method of recruitment to various technical posts and set out procedure for such recruitment. Relevant portion the said instructions reads as under:
"1. Instead of making direct recruitment to such technical post apprentices will first be engaged and such of them as complete apprenticeship satisfactorily will alone be considered for appointment to vacancies in the technical side.
2. (i) For the purpose of engaging apprentices, advertisement for technical trade apprentices as prescribed under Apprenticeship Act and rules will be issued in various local news papers giving details of qualification required period of apprenticeship training and stipend payable to them. Names may also be called for, for the purpose from various I.T.Is. under the State. Copies of advertisement issued should also be sent to concerned Employment Exchanges asking them to send particulars of suitable candidates from their live registers.
(ii) Copies of advertisement should also be sent to the social welfare officers indicating the number of reserved seats and asking them for lists of qualified SC/ST/BC persons to fill in the revised vacancies.Page 21 of 43
C/LPA/1138/2004 JUDGMENT
3. The advertisement may be issued in the month of June every year in various news papers taking in the account seats allotted by the Apprenticeship Adviser from time to time as well as future and present requirement of technical personnel under various offices.
4. Selection Committee will interview candidates and prepare a merit list based on X + Y marks where X is the mark, out of 30, obtained by each candidate in the interview and Y is the mark reduced into percentage, obtained by the candidates in the qualifying examination prescribed for the post in question.
Selection committee will consist of:
1. SE of the Circle/Power station chief.
2. Ex. Engineer
3. Account Officer
4. Assistant Secretary in Circles/IRO in power station.
xxxx xxxx
10. The candidate must have attained the age of 18 years and must not have completed the age of 25 years (relaxable upto 5 years for SC/ST).
11. It may be emphasized that the select list prepared in the above manner will be applicable for engaging apprentices and will expire expire at the end of each year. This may be called select list 'A'.
12. After a candidate completes his apprenticeship satisfactorily he may be brought on select list 'B' which will remain operative perpetually and will have names of satisfactory apprentices arranged in seniority.
xxxxxx"
12.2 Under circular dated 31.7.86, it was further provided as under:
"Of late we are receiving letters seeking clarifications from Field Page 22 of 43 C/LPA/1138/2004 JUDGMENT Officer as regards filling in the posts of Helper. There are various circulars for recruitment of Helpers on regular establishment and Field offices are finding it difficult in implementing these circulars specifically in regard to which category should be given preference over the others.
In order to streamline the procedure of filling in the post of Helper on regular establishment the following instructions are hereby issued and the same may be strictly implemented.
1. First preference should be given to compassionate appointment in terms of G.S.O.295. If at all a dependent of a deceased employee is having requisite qualification i.e. 2 nd class Wireman Certificate etc. then such person may be given first preference against the available vacancy of Helper subject to condition prescribed in GSO 295.
2. The Helpers working on Supernumerary posts in terms of Establishment Circular No.446 is required to be absorbed first against available vacancies and as such this category may be given second preference.
3. Vacancies remaining thereafter be filled in strictly from the priority list of Apprentice prepared and maintained at Circle level. It may be seen that all these Apprentices must have completed 3 years of satisfactory training and are possessing requisite qualification as prescribed for the post from time to time. The persons though might have recruited as Apprentice but not possessing the minimum qualification prescribed need not be considered.
The above circular is issued as a guidelines and be implemented strictly while filling in the posts of Helper under your control."
12.3 Under circular dated 26.2.90, the Board decided to grant relaxation in the upper age limit to the candidates who had completed the training as apprentice, as under:
"With a view to utilize the training imparted to such apprentices, it Page 23 of 43 C/LPA/1138/2004 JUDGMENT has been decided that the upper age limit be relaxed upto 35 years in case of Apprentice Linemen and upto 29 years in case of Commercial Trade Apprentices. This relaxation will be applicable to those who have completed their apprenticeship and who are on the wait list as on 31.12.1989. Age relaxation prescribed for reserved candidates will be applicable in addition to the above relaxation."
12.4 Under GSO 315, dated 10.7.1990, the GEB accepted the recommendations made by a Committee for finalizing the qualification and experience required for various technical posts as per Annexure A to the said GSO. The qualification and experience for the post of lineman/wireman and Helper respectively read as under:
Post Qualification for Qualification for Experience for Experience for Outsiders Departmental Outsiders Dept. candidate candidate Lineman/ 2nd Class WM The qualification may Should have As in col.3 Wireman certificate or ITI be relaxed in case of minimum 5 years certificate. The those who have experience in HT candidate should have acquired very good & LT lines. This passed IXth Std. and experience of not less may be relaxed in should be able to write than 10 years and who case of those who reports independently. are physically strong have undergone and able to climb apprentice training poles/ towers. "They as Lineman.
should be lable to read
and write in Gujarati
and must obtain 2nd
Cl.W/M certificate
within a year.
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Helper IInd Cl.W.M. -- One years Those who
Certificate or ITI experience of the have put in at
certificate should have type of work he is least 3 years
studied upto IX std. expected to service in the
Should be physically perform. Board and has
strong and capable to acquired
climb the poles. requisite
practical
experience may
be considered
subject to his
passing the IInd
Cl. WM exam
within two
years. He
should be able
to read and
write Gujarati
correctly
12.5 On 13.11.2000, the GEB issued a circular which is of
considerable importance to this litigation. In the said circular, it was clarified that the list of candidates who have successfully completed apprentice training is prepared on zonal level. Such list is a data bank for filling up the post of Helper falling vacant in future. Being placed in the data bank does not give an automatic right to a candidate for being appointed. It was, therefore, clarified that "separate data banks should be prepared for the reserved category candidates out of the list prepared by the different zones of the candidates imparted training in different trades after they obtained national apprentice certificate given by the National Council for Vocational Training. From such data bank, appointment to the post of Helper shall be made". It was further clarified that the regional offices should intimate the candidates of their position of seniority in such data bank after they successfully complete their training and obtain the national apprenticeship certificate.
12.6 On 27.2.2004, the GEB issued yet another circular modifying
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its earlier circular dated 13.11.2000 to the extent of doing away with the requirement of preparing separate lists for different reserved categories of candidates.
13. On the basis of such materials on record, learned Senior Counsel Shri Girish Patel leading the charge on behalf of the candidates raised following contentions:
(1) The petitioners do not seek appointment to the post of lineman/wireman. It is only for these posts that the Board had prescribed the requirement of passing the trade test. For the post of Helper, even as per the Board's requirement, there was no such minimum qualification prescribed.
(2) The petitioners are not seeking appointment on mere completion of the apprenticeship training period. They are not even claiming such appointments under the Apprentices Act. They base their rights on the policy framed by the GEB and followed consistently. As per such policy, the candidates completing their apprenticeship training with the GEB would be offered appointment to the future vacancies to the post of Helper.
(3) The petitioners may not have an indefeasible right to be appointed to the post merely on being included in the list. Nevertheless, they have a right to be considered for such appointment according to their seniority. In other words, when a person junior to them in the said list is offered appointment, his right to get similar treatment cannot be denied.
(4) The requirement of passing the trade test for the post of Helper is
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not a statutory requirement. The recruitment rules adopted by the GEB also do not provide for any such minimum qualification. When the petitioners were included in the data bank and the list was operated by offering appointment to several candidates through such list, the GEB itself never followed the requirement of passing the test. Till the clarificatory circular was issued by the GEB on 13.11.2000, such requirement was never in force. Even after the circular dated
13.11.2000, large number of candidates were appointed to the post of Helper without passing the trade test. The counsel, therefore, would contend that the GEB itself had never implemented this requirement. Circular dated 13.11.2000 cannot be applied to those candidates who were included in the data bank before the said date and since the GEB itself appointed large number of such candidates even after 13.11.2000, who had not passed the trade test, rejecting the candidature of the petitioners on this ground would amount to hostile discrimination.
14. On the other hand, learned counsel Shri Mayur Pandya appearing with Shri Hasurkar for the GEB and its successor Vij Companies raised the following contentions:
(1) Mere completion of the apprenticeship training gives no indefeasible right to any candidate to the post.
(2) Apprenticeship training can be said to have been completed only upon passing the trade test and not otherwise.
(3) The Board as per its resolution dated 26.10.83, had provided for completion of the apprenticeship by a candidate before he could be included in the data bank. Such completion would necessarily include Page 27 of 43 C/LPA/1138/2004 JUDGMENT passing of the trade test. Those candidates who did not pass the trade test, therefore, cannot be offered appointments.
(4) In any case, the position was made amply clear in circular dated 13.11.2000. After the said date, the Board insisted on the candidate passing such test before he could be appointed to the post of Helper. The candidates who were merely placed in the data bank and whose turn had yet not arrived cannot insist that the policy so framed should not be implemented.
(5) Even if a few candidates may have been appointed without passing the trade test after 13.11.2000, the same would not give any right to the petitioners to claim parity since such appointments were contrary to the GEB resolutions.
15. In support of his contentions, counsel relied on the following decisions:
(1) In the case of U.P.Rajya Vidyut Parishad Apprentice Welfare Association & Another v. State of Uttar Pradesh & ors., 2000 LLR 869 was cited wherein the Apex court observed even apprentices have to go through the procedure of examination and interview. They can only be given preference.
(2) For the same purpose, the counsel also relied on in the case of U.P.S.R.T. Cpron. U.P.Parivahan N.S.B.Sangh, AIR 1995 SC 1119.
16. From the material on record, we gather that the GEB was following the pattern of preparing select list for sending the candidates for Page 28 of 43 C/LPA/1138/2004 JUDGMENT apprenticeship training. Upon completion of the training period, the GEB would draw a list referred to as the data bank out of those candidates who successfully completed such training. From time to time, GEB resolved to draw separate lists for general and reserved category candidates, but later on decided to merge all such lists. We are, however, not concerned with this aspect of the matter. The modality of preparation of such list and using such list for the purpose of making appointment to the post of Helper flows from the office order dated 26.10.83. The office order dated 26.10.83 refers to such of the candidates who "complete apprenticeship satisfactorily will alone be considered for appointment to the vacancies in the technical side". What would be the true interpretation of the term "of the candidates who complete apprenticeship satisfactorily" shall be discussed a while later. At this stage, we may record that the candidates who were called for apprenticeship training under the Apprentices Act 1961 would be appointed only to the post of Helper and not on other posts. It is the firm stand of the GEB and with which the petitioners raise no dispute that the posts of Wireman/Lineman is the promotional posts, the post of Helper being the feeder cadre to the said posts.
17. The Apprentices Act, 1961, and the Rules made thereunder do not recognize the trade of Helper as a designated trade, but recognize the trade of wireman/lineman belonging to such category. The recruitment rules adopted by the GEB under its resolution dated 10.7.1990 also do not insist on a person having passed the trade test for being appointed to the post of Helper. Such rules prescribe 2nd Cl. W.M. certificate or ITI certificate, should have passed 9th standard and physical strength and capability to climb poles as minimum qualifications. In contrast, for the post of wireman/lineman, the minimum prescribed qualification is of 2 nd Page 29 of 43 C/LPA/1138/2004 JUDGMENT class WM certificate or ITI certificate and the candidate should have passed 9th standard and should be able to write reports independently. Under the minimum experience, it is provided that the candidate should have minimum 5 years of experience in HT and LT lines which may be relaxed in case of those who have undergone apprentice training as lineman.
18. Despite such rules and regulations, the GEB in its office order dated 26.10.83 had prescribed the modalities for making recruitment to the technical posts. In respect of direct recruitment, an apprentice will first be engaged and those who complete the apprenticeship satisfactorily alone be considered for appointment on the vacancies in the technical side.
19. Section 8 of the Apprentices Act, 1961, as noted, pertains to number of apprentices for a designated trade. Section 9 covers the area of practical and basic training of apprentices. Section 21 pertains to holding of test and grant of certificate and conclusion of training and reads as under:
"21. Holding of test and grant of certificate and conclusion of training. (1) Every trade apprentice who has completed the period of training shall appear for a test to be conducted by the National Council to determine his proficiency in the designated trade in which he has undergone his apprenticeship training.
(2) Every trade apprentice who passed the test referred to in sub-
section (1) shall be granted a certificate of proficiency in the trade by the National Council.
(3) The progress in apprenticeship training of every graduate or technician apprentice, technician (vocational) apprentice shall be assessed by the employer from time to time.
Page 30 of 43C/LPA/1138/2004 JUDGMENT (4) Every graduate or technician apprentice or technician (vocational) apprentice, who completes his apprenticeship training to the satisfaction of the concerned Regional Board, shall be granted a certificate of proficiency by the Board."
Sub-section (1) of section 22 provides, inter alia, that 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 apprenticeship to accept an employment under the employer.
20. It can thus be seen that upon completion of the training period an apprentice, as provided under section 21(1) of the Apprentices Act, 1961 has to appear for a test to be conducted by the National Council for determining his proficiency in the designated trade. As per sub-section (2) of section 21, every apprentice who passes the test as provided in sub-section (1) thereof shall be granted a certificate of proficiency in the trade by the National Council. It can thus be seen that upon completion of the training period, an apprentice has to appear in the trade test to be conducted by the National Council and only upon passing the test, certificate of proficiency in the trade would be granted. Combined reading of sub-sections (1) and (2) of section 21 leaves no manner of doubt that it is only after passing the trade test an apprentice can be said to have completed his apprenticeship training successfully. Mere completion of the training period with the employer would not amount to completion of apprenticeship. The additional requirement is that the candidate should have appeared and passed the trade test conducted by the National Council.
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21. In that view of the matter, our reading of the Board circular/office order dated 26.10.83 is that even in such office order, requirement was not only of completion of the training period of apprenticeship, but also of passing the trade test that may be conducted by the National Council. This is the only manner in which the expression "complete apprenticeship satisfactorily" can be read. In our opinion, therefore, the intention of the GEB even in its office order dated 26.10.83 was clear and to appoint only those apprentice trainees who not only complete the training period but also pass the trade test to be included in the Data Bank which would be utilized for the purpose of making appointments for future vacancies on the post of Helper.
22. This requirement, however, did not arise out of any statutory provisions. As noted, neither the Apprentices Act 1961 included the trade of Helper as a designated trade nor the recruitment rules adopted by the GEB through GSO 315 dated 10.7.90, make any such prescription. As a matter of fact, the methodology of utilizing apprenticeship training for the appointment of Helper was evolved by the Board through this office order dated 26.10.83. In such office order, it was also provided that only upon successful and satisfactory completion of the apprentice training a candidate would be included in the data bank. Such requirement, therefore, arises out of a policy decision of the GEB. Since such decision was neither contrary to the statutory requirement nor in conflict with its own recruitment rules, in our opinion, such executive instructions could as well survive. Such additional requirement could always be prescribed by the Board if so desired in the interest of efficiency of the service.
23. This, in our opinion, is crucial since despite its clear decision Page 32 of 43 C/LPA/1138/2004 JUDGMENT dated 26.10.83, the Board never insisted on the candidate passing the trade test before he was appointed to the post of Helper. Whatever be the misconception, relaxation or interpretation of the recruitment rules, the Board followed a pattern of drawing the list of all those apprentice trainees who completed their training period and placed them in a common data bank. Such data bank was operated for making appointment to the post of Helper regardless of the fact whether the candidate had or had not passed the trade test. It appears that large number of candidates did appear in the said trade test and many of them did also pass the test within three years and six chances permitted by the National Council. However, many candidates either did not appear at all or failed to pass the test. The Board, however, made no distinction between these two categories of candidates and continued to offer appointment to all apprentice trainees who had completed the training period irrespective of their status of the trade test passed, failed or not appeared.
24. This pattern changed dramatically with the issuance of notification dated 13.11.2000. In such circular, the Board reiterated that the data bank should be prepared only of those apprentice trainees who had not only completed the training period but also passed the trade test. From this date onwards in majority of the cases, the GEB insisted on the candidate passing the trade test before he was offered appointment. It is true that in several cases, despite such circular, the GEB appointed candidates who had not passed the trade test. The data given to us by the respondents shows that post 13.11.2000, till the year 2011, the Board appointed as many as 10125 candidates who had passed the trade test as against 117 candidates who had not passed such test.
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25. As observed hereinabove, the requirement of passing the trade test for the post of Helper neither flows from the provisions of any statute nor from the recruitment rules framed by the Board. Such requirement, however, was part of the GEB circular dated 26.10.83. Right upto 13.11.2000, the GEB itself did not interpret its office order dated 26.10.83 as to prescribe the requirement of passing of the trade test by a candidate seeking appointment to the post of Helper. Had this requirement been a part of the statutory provisions or even the minimum qualification prescribed by the GEB in its rule making authority, any deviation by the GEB from such requirement would be of no avail and the candidate seeking appointment to the said post could not have maintained his position de horse such statutory requirement. The requirement flows from an executive instruction issued by the GEB. It does flow from the above discussion that upto 13.11.2000, the GEB never implemented the requirement of insisting on a candidate passing the trade test before he could be appointed to the post of Helper. We are prepared to accept as we are bound to that whatever the mistake in the past, the Board was always authorized to correct it. It was pointed out that the promotional post of wireman/lineman requires the minimum qualification of trade test pass. If, therefore, majority of the candidates in the feeder cadre of Helper were without such qualification, the administration of the Board would seriously suffer since the candidates qualified for promotional post would not be available.
26. The question, however is, can the GEB change this position vis-a- vis those candidates who were already placed in the data bank. Here also, if a candidate was merely placed in the data bank and his turn for appointment had not yet arrived, there was nothing preventing the GEB from correcting its position and insisting that only those candidates who Page 34 of 43 C/LPA/1138/2004 JUDGMENT had passed the trade test would be offered appointment. The situation, however, is far more complex than that. Number of candidates were placed in the data bank right from the year 1993 onwards. All along, by convention and successive appointments made by the Board from such lists, they were made to believe in no unclear terms that the Board's policy is to offer appointment to all candidates who had completed the apprenticeship training period without having regard to the fact whether the candidate had passed the trade test or not. As noted earlier, from the letter dated 22.7.1999 of the Board it emerges that even as per the Dy. General Manager, HO, Baroda, there was no requirement of passing the trade test for the post of Helper. Those candidates who were waiting for being considered for appointment to the post in question in their turn, therefore, cannot be left without any remedy by a sudden change of the policy of the GEB and correction of its interpretation of its earlier circular bringing about a situation where the entire period of three years maximum granted by the National Council for passing the trade test would have passed and the candidate's chances of being absorbed in the establishment would disappear for all times to come.
27. If we accept the stand of the GEB and also of the National Council, a situation would arise where a candidate would be waiting for several years to be considered in his turn for appointment to the post of Helper on the premise that mere completion of training period would be sufficient and passing of the trade test was not necessary. He would have, therefore, not taken the examination for such purpose and many years later, he would be told that the GEB having now correctly interpreted its circular, he would not either get a chance of being considered even if his turn arrived nor would he be given a chance to appear because of the period of three years had passed. In our opinion, the same would lead to Page 35 of 43 C/LPA/1138/2004 JUDGMENT injustice which was not of his creation and which must be remedied.
28. In the conclusion, we recognize the right of the GEB to prescribe the minimum qualification of passing of the trade test to the post of Helper also. In fact, we are of the opinion that such requirement flows even from its earlier circular dated 26.10.83. It is only the Board's own action of not reading and implementing its circular correctly between 26.10.83 and 13.11.2000, appointments were made to the post of Helper of the candidates who had not passed the trade test. This, however, not being a statutory requirement but only a requirement created by the GEB in its executive instruction, it was open for the GEB to relax the same by its own accord. It was equally open for the Board to correct its interpretation of the policy. In doing so, such requirement could also be applied to the candidates who were till then not appointed. Merely being placed in the data bank list gives no vested right to be appointed to the post even if a candidate is qualified. Such change in policy after nearly 17 years however cannot be made in such a away that the candidates who were waiting for years for their appointment and who had been given to understand by the Board that no such requirement existed, would be left with no remedy at all.
29. We notice that neither the Apprentices Act nor the Rules made thereunder lay down the period during which the trade test must be passed nor provide for a maximum number of chances. Rule 7 of the Apprentices Rules,1992 pertains to the period of apprenticeship training. It does not provide for the period during which the trade test would be passed or the maximum number of chances to be offered to a candidate. Sub-rule (1) of rule 7 provides that the period of apprenticeship in the case of trade apprentices referred to in clause (b) of section 6 of the Act Page 36 of 43 C/LPA/1138/2004 JUDGMENT shall be as specified in Schedule I. Schedule I provides for the period of training for different trades. The number of chances and maximum attempt permitted for passing the trade test is provided in different circulars issued by the Director General of Employment and Training (DGET). Such circulars provide, inter alia, that the All India trade test will be held once in every six months generally April/May and October/November every year. Under the letter dated 22.8.83 from the DGET, it is provided that an apprentice who has failed six times within a period of three years including the 1st trade test irrespective of his attendance/absence after the completion of training will not be allowed to appear for any subsequent trade. The requirement of passing the trade test within three years and maximum six chances thus flows from executive instructions. In the facts of the present case, in our opinion, such requirement of minimum period of 3 years when it is found that a candidate was already placed in data bank before clarificatory circular dated 13.11.2000 was issued by the GEB and who had never appeared in the trade test earlier, is required to be relaxed.
30. Such facility, however, cannot be offered to those candidates who appeared but failed in the trade test. Even if they had not exhausted of all the six chances, mere fact that they did appear at one stage and thereafter on their own chose not to appear for years together, in our opinion, should disentitle them from seeking another chance at this belated stage. On the other hand, we also cannot accept the suggestion of Shri Pandya for the respondents that some of the candidates having crossed the maximum age limit, no fresh chance should be made available to them. These candidates, it is not pointed out to us that committed any delay in approaching the Board as soon as they learnt about the juniors having been offered appointment without offering Page 37 of 43 C/LPA/1138/2004 JUDGMENT appointments to them. When the GEB did not redress their grievance, they filed the writ petitions. If in the meantime, they crossed the age limit, that cannot result in destroying their right to seek appointment on the date when the cause arose. Learned counsel Shri Pandya would, however, join issue that none of the juniors of these candidates were appointed. Insofar as these candidates are concerned, we do not draw a distinction between those who had passed the test and those who had not passed the test for the limited extent of their turn having arrived for being considered for appointment since passing or not passing the test itself is at the center of the legal controversy.
31. Coming to the judgment of the learned Single Judge which is the subject matter of Letters Patent Appeal No.1138 of 2004 and connected appeals, the learned Single Judge placed considerable importance on the candidates failing to produce certificate of passing the trade test and under section 22 of the Apprentices Act, 1961, an employer is not under an obligation to appoint an apprentice. As noted above, those of the candidates who were already included in the data bank without passing the trade test and were waiting for their turn to be appointed to the post of Helper, as was done by the GEB for years together in the past cannot be skittled out merely on the basis that they did not appear and pass the trade test. It is true that section 22 does not oblige an employer to engage an apprentice trainee even after successful completion of the training. Nevertheless, when an employer is a State within the meaning of Article 12 of the Constitution, combined force of Articles 14 and 16 ensures that the Board cannot adopt any discriminatory or arbitrary procedure in offering employment to the candidates who are already drawn in a list for such purpose. In essence, to the limited extent of being considered for appointment to the post in question along with their Page 38 of 43 C/LPA/1138/2004 JUDGMENT juniors as per the policy of the GEB was certainly their right.
32. Coming to the Letters Patent Appeal filed by the GEB, we may recall that the writ petitions were filed by those candidates who are already appointed, in majority of the cases, even before the clarificatory circular dated 13.11.2000. Their appointments were sought to be canceled on the ground that they had obtained such employment by making false declarations. The learned Single Judge allowed their petitions and quashed the notices issued by the Board. This of course was done on the premise that the petitioners were not appointed to the post of lineman but as Helpers and the recruitment rules for the posts of Helper did not prescribe the requirement of passing the trade test. In our opinion, this would not be an accurate interpretation of the rules and the executive instructions issued by the GEB from time to time. Though the recruitment rules did not insist on the qualification of passing trade test for the post of Helper, by virtue of the office order dated 26.10.83, the Board did prescribe such requirement. However, when the GEB itself did not implement such requirement in large number of cases for the entire period between 1983 and 2000, it could not have picked a few isolated candidates for termination on the ground that they had not passed such tests. To put it differently, all along, the GEB itself never insisted on such additional requirement for the entire period from 1983 till 2000 in case of appointment to the post of Helper. There may be some cases of appointments even after 2000. But the show cause notice proceeded on an entirely erroneous premise, namely, that the candidates had supplied wrong information for seeking employment which admittedly is not even the case of the Board. On such grounds, the decision of the learned Single Judge must be upheld.
Page 39 of 43C/LPA/1138/2004 JUDGMENT 33. In the result, all the proceedings are disposed of with the following directions:
(1) All those candidates whose names were included in the data bank upon successful completion of the apprenticeship training period and who had never appeared in trade test and therefore not offered appointment shall be given one chance for appearing in the trade test and if they pass the trade test, the concerned authorities shall issue necessary certificate of completion of apprentice training.
(2) In their cases, the Board shall offer appointment to the post of Helper as and when vacancies so arise which shall be after verification that by that time such candidates' turn for being considered to the post in question (keeping the question of not passing trade test aside) had arrived the candidates should not have crossed the maximum upper age limit prescribed including the relaxation for apprentice trainee if any under the Rules and Regulations.
(3) Such appointment shall be a fresh appointment without any benefit of past service, monetary or otherwise.
(4) Writ petitions of these petitioners shall stand allowed to the above extent.
(5) All those candidates who had previously appeared (whether 6 times or less) and failed in the trade test shall have no further chance for appearing in the trade test. Their writ petitions stand dismissed.
(6) Letters Patent Appeal No.1138 of 2004 and connected appeals Page 40 of 43 C/LPA/1138/2004 JUDGMENT shall be governed by the same directions and terms. Writ petitions of the such original petitioners-appellants shall stand allowed/dismissed as mentioned above.
(7) Letters Patent Appeal No.282 of 2009 and all connected appeals filed by the Board shall stand dismissed. Judgment of the learned Single Judge is confirmed.
(8) All those candidates who had never appeared in the trade test and therefore would be governed by the above directions shall file a declaration on oath before the respective Vij Companies to this effect within one month from today. It is clarified that if it is found that there is misdeclaration of material aspects in such statement, it would be open for the Vij Companies to take appropriate steps against such declarant.
(9) For the purpose of giving one opportunity of appearing in the trade test as directed above, the respondents shall verify the details of the candidates and prepare a list and forward the same in the prescribed proforma to NCVT of those candidates who qualified for chance as provided hereinabove. This shall be done within a period of four months from the date of receipt of a copy of this order.
(10) NCVT, thereupon, shall include these candidates in the next ensuing trade test and permit them to appear in the trade test.
34. At this stage, learned counsel Shri Pandya for the respondents stated under instructions that the Vij Companies now have a policy of conducting tests, including physical tests, of all the candidates before offering appointment and in the present case also, the Company would Page 41 of 43 C/LPA/1138/2004 JUDGMENT like to conduct such tests. We are informed that such candidates have filed writ petitions before the High Court challenging the legality thereof. Without prejudice to the rights and contentions of either side in such pending litigation, in our opinion, in the facts of the present proceedings, the issue can be resolved. At our request, learned counsel Shri Shakeel Qureshi appearing for NCVT took telephonic instructions from the authorities regarding the nature of trade test to be conducted. He stated that such trade test would include five subjects, namely, Practical including sessional, Trade theory, inducing sessional work done, Workshop calculation and science, including sessional work, Engineering Drawing, including sessions work and Social Studies/Employability Skill. He further stated that the practicals in case of wireman include pole climbing, ladder climbing, etc. In that view of the matter, when such candidates are now going to be subjected to such rigourous test before they would be cleared, it would not be necessary to subject them to fresh tests at the hands of the Vij Companies for the very same purpose. In all these cases, therefore, it would not be open for the Vij Companies to subject them to such additional tests. We, however, accept the suggestion of the counsel for the Vij Companies that in order to enable NCVT to design and conduct proper tests, requirement of the Board should be borne in mind. It would be open for the said companies to supply necessary literature and materials to NCVT in this regard while forwarding such lists of candidates for the test. We are sure, the NCVT shall also bear in mind these parameters while framing tests.
35. In view of disposal of the main matters, Civil Applications also stand disposed of accordingly.
(AKIL KURESHI, J.)
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(MS SONIA GOKANI, J.)
(vjn)
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