Manoj Kumar Mishra v. State Of U P

G.P. Mathur, J.-

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

2. In writ petition No. 5068 (S/S) of 1996 the petitioner prays that the advertise­ment issued on 27-5-95 by U.P. Subordinate Service Selection Commission for holding Junior Engineers' Combined Competative 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 (here in after 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 under Section 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 riot re­quired to appear in the Junior Engineers' Combined Competative 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 21-9-92 to 20-9-94 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 competative examination.

3, 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 competative examination or test through which selection is made for making appoint­ment on the said post under the relevant service rules or Government order.

4. 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) defiens an Apprentice' 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 under gone 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. section 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 (here in after referred as the Rules) mandates that the contract shall be sent by the employer for registration with in 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 an 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 this 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 apprentices. These provisions show that appren­tices is person who is undergoing a training in pursuance of a contract of apprenticeship 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 S. 22 in the Act and Sub-section (1) there of 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 there­-under 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.

5. The aforesaid position emerges out of from the provisions of the Act and the Rules made thereunder. However the Supreme Court in U.P. State Road Transport Corporation v. U.P. Parivahan Nigam Shishitkhs Berozgar Sangh 1995 (2) JT 26, 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 S. 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 v. Hargopal AIR 1987 SC 1227, would permit this;

(3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with that is stated in this regard, if any, in the concerned service rule. If the services 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 year-wise. 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.

6. 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 nowhere rule 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 82and in writ petition No. 1489 of 1991 Bhar-tiya Mazdoor Sangh v. I.T.I. Lid. 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 Judges 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 reported in 1995 (2) JT 26 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 (UPSRTC) 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/Funior 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 10-1-78 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 dt. 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 UP.) 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.

7. 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(five). The writ petitions are disposed of finally.

Order accordingly.