Manoj Kumar Mishra vs State of U.P. and Others

G.P. Mathur, J.—The controversy involved in both the writ petitions are identical, therefore, they are being disposed of by a common order.

In Writ Petition No. 5068 (S/S) of 1996, the Petitioner prays that the advertisement issued on 27.5.1995 by U.P. Subordinate Services Selection Commission for holding Junior Engineers'' Combined Competitive Examination for purpose of making appointment on the post of Junior Engineer (Civil) be quashed and a writ of mandamus be issued commanding the Respondents to give appointment to the Petitioner on the aforesaid post. The case of the Petitioner is that he passed diploma course in Civil Engineering from Government Polytechnic, Gorakhpur in the year 1987 and he was awarded a certificate by the Board of Technical Education, U.P. He applied for apprenticeship training under the Apprentices Act, 1961 (hereinafter referred as the Act) before the Board of Apprenticeship Training, Northern Region, Kanpur, which arranged an interview and as a result whereof he was selected for being engaged as apprentice junior engineer as provided u/s 8 of the Act. By the order dated 28.11.88 of the Engineer-in-chief of the Department of Irrigation, he was posted as an Apprentice Junior Engineer under the Executive Engineer, (Irrigation) Division-I, Deoria. He completed apprenticeship training on 15.12.89 and during the period of his training, he was paid Rs. 500 as stipend. The Petitioner claims that as he has completed apprenticeship training successfully, he is entitled to get appointment as Junior Engineer (Civil) in the Irrigation Department straightaway and he is not required to appear in the Junior Engineers'' Combined Competitive Examination being conducted by the U.P. Subordinate Services Selection Commission for selecting candidates for the aforesaid post. In Writ Petition No. 5076 (S/S) of 1996, the case of the Petitioner is that he has been awarded a certificate in ''Wireman'' trade by the State Board of Technical Education after completion of his studies in I.T.I. , Aliganj, Lucknow. Thereafter he was engaged as apprentice under the Executive Engineer, Lucknow Electric Supply Undertaking from 21.9.1992 to 20.9.1994 and after completion of training he was awarded a certificate on 20.2.95. The Petitioner claims that as he has successfully completed apprenticeship training, he is entitled to be appointed straightaway on a suitable post in the State Electricity Board without being required to appear in any competitive examination.

The principal question which requires consideration is, whether an apprentice, who has successfully completed apprenticeship training under the Apprentices Act, gets a right to be appointed on a post straightaway without appearing in any competitive examination or test through which selection is made for making appointment on the said post under the relevant service rules or Government Order.

The Apprentices Act was enacted in the year 1961 and as the preamble shows that it is an Act to provide for the regulation and control of training of apprentices and for matters connected therewith. Section 2(aa) defines an ''Apprentices'' and it means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship. Section 2(aaa) defines ''Apprenticeship training'' and it means a course of training in any industry or establishment undergone in pursuance of a contract of apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices. Section 4 provides that no, person shall be engaged as an apprentice to undergo apprenticeship training unless he has entered into a contract of apprenticeship with the employer and the training shall be deemed to have commenced on the date on which the contract of apprenticeship has been entered into. It further provides that every such contract shall be sent by the employer to the Apprenticeship Adviser for registration. Sections 6 and 7 lay down that the period of apprenticeship training shall be specified in the contract of apprenticeship and the same shall terminate on the expiry of the period of apprenticeship. Rule 6 of Apprenticeship Rules, 1991 (hereinafter referred as the Rules) mandates that the contract shall be sent by the employer for registration within three months of the date on which it was signed. Sub-rule (3) of Rule 6 provides that the obligation of the employer and that of the trade apprentices shall be as specified in Schedule V or VI. as the case may be. Clause 10 of Schedule V which relates to the obligation of the employer reads as follows:

(10) It shall not be obligatory on the part of the employer to offer any employment to the apprentice on completion of period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer.

There is exactly a similar clause, namely. Clause 2 in Schedule VI which deals with the terms and conditions of the contract of apprenticeship for Graduate Technician and Technician (Vocational) apprentices. Rule 11 lays down the minimum rate of stipend which is payable to a trade apprentice. These provisions show that apprentice is a person who is undergoing a training in pursuance of a contract of apprenticeship duly registered with the Apprenticeship Adviser and the employer who is imparting training is under no obligation to offer any employment to such a person. The Legislature has made the aforesaid position clear by making a specific provision in this regard, namely, Section 22 in the Act and Sub-section (1) thereof lays down 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. Sub-section (2), however, provides that notwithstanding anything in Sub-section (1), where there is a condition in a contract of apprenticeship that apprentice shall, after successful completion of the apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer, in that capacity for such period and on such remuneration as may be specified in the contract. Thus the provisions of the Act and the Rules made thereunder show that in absence of any condition in the contract which is entered into between the employer and the apprentice at the time of commencement of his apprenticeship training and which is registered with the Apprenticeship Adviser to the effect that the apprentice shall serve the employer, an apprentice cannot claim any legal right to get an employment on successful completion of his training. It is not the case of the Petitioners that in the contract of apprenticeship, there was any condition that after completion of training, they would serve the employer and in absence of such a condition, the employer, namely, Respondents in the two writ petitions are not bound to offer any employment to them.

The aforesaid position emerges out of from the provisions of the Act and the Rules made thereunder. However, the Supreme Court in Uttar Pradesh State Road Transport Corporation and another Vs. Uttar Pradesh Parivahan Nigam Shishukhs Berozgar Sangh and others, , in order to ensure proper utilisation of public money and that the nation gets the benefit of time, money and energy spent on trainees and further to meet the legitimate expectations of the trainees, observed that it would not be proper to act merely by what has been stated in Section 22 of the Act and the model contract forms. The Court, therefore, issued the following directions which have to be kept in mind while dealing with the claim of trainees to get employment after successful completion of training:

(1) Other things being equal, a trained apprentice should be given preference over direct recruits.

(2) For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India (UOI) and Others Vs. N. Hargopal and Others, , would permit this.

(3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the concerned service rule. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given.

(4) The concerned training institute would maintain a list of the persons trained yearwise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices'' preference shall be given to those who are senior.

The claim of the Petitioners that they are not required to appear in any competitive examination or test which is held for making selection on the post on which they want to be appointed, cannot be sustained as no such direction has been given by Supreme Court. If the relevant service rules or Government Orders issued in this regard provide for holding of a competitive examination or test, the Petitioners have to appear in the said examination or test and compete with other candidates. The Apex Court has no where ruled that the relevant provisions for holding an examination for making selection with regard to direct recruits is ultra vires or the same would not apply to a person who has completed apprenticeship training. In fact, the very first direction which provides that other things being equal, a trained apprentice should be given preference to other direct recruits, shows that he has to appear in the competitive examination or test otherwise his comparative merit cannot be judged. Learned Counsel for the Petitioners has, however, placed reliance on two decisions, namely, Mohd. Waseem v. State 1996 (14) LCD 82 , and in Writ Petition No. 1489 of 1991 Bhartiya Mazdoor Sangh v. I.T.I. Ltd. decided on 4.7.96 wherein a direction has been issued to consider the case of the Petitioners in the light of the aforesaid observation made by the Supreme Court and a further direction has been issued that they will not be required to appear in any written examination, if any, provided under the Rules governing the conditions of service of regular employees. With profound respects and utmost humility. I am unable to agree with the aforesaid direction of the learned single Judge that the Petitioners would not be required to appear in any examination. A careful reading of the judgment of the Supreme Court would show that no such observation was made while dealing with the claim of trainees to get employment. No doubt there is such an observation in paragraph 13 of the reports but that paragraph specifically dealt with the cases in which U.P. State Road Transport Corporation had preferred appeals against the judgment dated 6.10.89 of Allahabad High Court. Paragraph 13 of the judgment as in Uttar Pradesh State Road Transport Corporation and another Vs. Uttar Pradesh Parivahan Nigam Shishukhs Berozgar Sangh and others, begins as follows:

In so far as the cases at hand are concerned, we find that the Corporation filed additional affidavit in....

The facts of the cases which went in appeal to the Supreme Court were entirely different. The Corporation (U.P.S.R.T.C.) in its meeting dated 27.8.1977 had resolved that those apprentices who had been given training by it will get preference in the matter of appointment. On the basis of the aforesaid resolution, the Joint General Manager (Administration and Personnel) issued a circular dated 21.9.1977 laying down the procedure for selection of apprentices as general clerk/working clerk/junior clerk in the Corporation and mentioning that these apprentices will not be required to appear at the written test and at the time of interview, ten marks will be given to every trained apprentice towards his experience. On 10.1.1978 the Joint General Manager wrote to all the Regional Managers to consider the apprentices in the light of the circular dated 21.9.77 by giving them preference. Thereafter, the persons who were trained as apprentices were appointed as and when vacancies occurred and many appointments were made without holding written test. However, subsequently some of the apprentices who had been imparted training by the Corporation were not given appointments and they filed writ petitions on the ground that the Corporation having given assurance to appoint them after completion of apprenticeship training and they having acted upon the said assurance and completed the training, the Corporation could not resile from its assurance, and was consequently bound to give them employment. The plea based on promissory estoppel was accepted and the writ petitions were allowed. These facts would be clear from the judgment of this Court which is reported in 1990 (1) UPLBEC 326. In appeal the Supreme Court took the view that the doctrine of promissory estoppel could not be applied and the judgment of the High Court was modified accordingly. The observation that the trainees would not be required to appear in any written examination was made only with regard to those whose matter was up for consideration in appeal before the Court and has to be confined to the facts of that case alone in view of the resolution of the Corporation dated 22.8.77 and the circular issued by the Joint General Manager on 21.9.77. This observation cannot have any general application. It may be pointed out here that in Special Appeal No. 77 (S/S) of 1995 Gangaram v. State of U.P., decided on 23.5.1995, a Division Bench (Hon''ble Brijesh Kumar and A. P. Singh, JJ.) did not issue any such direction that a person who has completed apprenticeship training will not be required to appear in any examination.

In the result, the prayer made by the Petitioners that they should not be required to appear in any examination which is being held for making selection is rejected. Respondents are, however, directed to consider the case of the Petitioners in the light of observations made in paragraph 5(5). The writ petitions are disposed of finally.