U. O. I. , Thru Secretary M. O. D. New Delhi vs Central Administrative Tribunal Allahabad

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 1332

IN THE HIGH COURT OF ALLAHABAD
SURYA PRAKASH KESARWANI, RAJENDRA KUMAR-IV, JJ.
The U.O.I., Thru Secretary M.O.D. New Delhi and Another - Petitioners
Versus
Central Administrative Tribunal Allahabad and Another - Respondents
Writ - A Nos. 11776, 4315, 9563, 10250, 11792, 17851 of 2017
Decided On : 08-12-2022

Advocates Appeared:
For the Petitioner: Shekhar Kumar Yadav, Krishna Agarawal.
For the Respondent: Shyamal Narain.

Headnote:
APPRENTICES ACT, 1961 - SECTION 22 - ORDNANCE FACTORIES GROUP C & D INDUSTRIAL POSTS RECRUITMENT RULES, 1994 - SRO 185 OF 1994 - DIRECT RECRUITMENT - PREFERENCE TO EX-TRADE APPRENTICES - VALIDITY - HELD, EX-TRADE APPRENTICES DO NOT HAVE ANY STATUTORY RIGHT TO BE RECRUITED ON SEMI-SKILLED POSTS MERELY ON THE BASIS OF NCVT, WITHOUT ANY COMPETITIVE TEST.
Fact of the Case:

THE PETITIONERS, UNION OF INDIA, HAVE FILED THE PRESENT WRIT PETITIONS CHALLENGING THE IMPUGNED COMMON ORDER DATED 06.10.2016, PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD IN OA NO.330/00801 OF 2016, ADITYA KUMAR VS UNION OF INDIA AND OTHERS, WHEREBY THE TRIBUNAL HAS QUASHED THE ADVERTISEMENT ISSUED BY THE ORDNANCE FACTORIES OF THE MINISTRY OF DEFENCE, WHICH ARE SIMILAR TO THE ADVERTISEMENT NOTED ABOVE. THE RESPONDENTS/CANDIDATES HAD COMPLETED APPRENTICESHIP IN DIFFERENT TRADES UNDER THE APPRENTICES ACT, 1961 (HEREINAFTER REFERRED TO AS ACT, 1961).
Finding of the Court:

THE COURT HELD THAT THE EX-TRADE APPRENTICES DO NOT HAVE ANY STATUTORY RIGHT TO BE RECRUITED ON SEMI-SKILLED POSTS MERELY ON THE BASIS OF NCVT, WITHOUT ANY COMPETITIVE TEST. THE COURT FURTHER HELD THAT THE IMPUGNED ORDER OF THE TRIBUNAL IS NOT VALID.
Issues: 1. WHETHER THE RECRUITMENT ON THE POST IN QUESTION I.E. "SEMI-SKILLED WORKMAN" IS GOVERNED BY THE PROVISIONS OF THE ORDNANCE FACTORIES GROUP C & D INDUSTRIAL POSTS RECRUITMENT RULES, 1994 NOTIFIED BY S.R.O. 185 OF 1994 DATED 01.11.1994 IN EXERCISE OF POWERS CONFERRED BY PROVISO OF ARTICLE 309 OF THE CONSTITUTION OF INDIA? 2. WHETHER POSTS TERMED AS "NON-SELECTION POST" IN CLAUSE (5) OF THE ORDNANCE FACTORIES GROUP C & D INDUSTRIAL POSTS RECRUITMENT RULES, 1994 INCLUDES VACANCIES TO BE FILLED BY DIRECT RECRUITMENT AND WHETHER FOR DIRECT RECRUITMENT, TRADE TEST IS MANDATORY? 3. WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE RESPONDENT-CANDIDATES HAVE ANY STATUTORY RIGHT TO BE RECRUITED ON "SEMI-SKILLED POSTS" MERELY ON THE BASIS OF NCVT, WITHOUT ANY COMPETITIVE TEST? 4. WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE IMPUGNED ORDER OF THE TRIBUNAL IS VALID?
Ratio Decidendi: THE COURT RELIED ON THE FOLLOWING PRINCIPLES: 1. AN APPRENTICE DOES NOT HAVE A STATUTORY RIGHT TO CLAIM AN APPOINTMENT AND THE EMPLOYER IS NOT UNDER ANY STATUTORY OBLIGATION TO GIVE HIM EMPLOYMENT. HOWEVER, IF THE TERMS OF THE CONTRACT OF APPRENTICESHIP LAY DOWN A CONDITION THAT ON SUCCESSFUL COMPLETION OF APPRENTICESHIP AN EMPLOYER WOULD OFFER HIM AN EMPLOYMENT, THEN IT IS OBLIGATORY ON HIS PART TO DO SO. IN THE ABSENCE OF SUCH A CONDITION, THERE IS NO OBLIGATION. IT DEPENDS ON THE TERMS OF THE CONTRACT. 2. THE EXPRESSION "OTHER THINGS BEING EQUAL" IN PARAGRAPH 12 AND ABSENCE OF EXEMPTION FROM COMPETITIVE TEST IN THE SAID PARAGRAPH, LEADS TO THE CONCLUSION THAT ALL PERSONS (INCLUDING THE APPRENTICES) HAVE TO APPEAR IN THE COMPETITIVE TEST, AS MAY BE PRESCRIBED IN RESPECT OF THE PARTICULAR SELECTION, AND IF AFTER THE COMPETITIVE TEST, ANY APPRENTICE TRAINEE GETS EQUAL MARKS THAN A NON-APPRENTICE CANDIDATE, THEN ONLY PREFERENCE IS TO BE GIVEN TO THE SAID APPRENTICE TRAINEE. 3. PREFERENCE DOES NOT MEAN THAT THE RAILWAYS TRAINED APPRENTICE WILL HAVE AN EXCLUSIVE RIGHT TO THE EXCLUSION OF ALL OTHERS TO BE CONSIDERED FOR APPOINTMENT. BOTH THE TRIBUNAL AND THE HIGH COURT WERE JUSTIFIED IN DECIDING THIS ISSUE AGAINST THE RAILWAYS AND IN FAVOUR OF THE ORIGINAL APPLICANTS.
Final Decision: THE COURT ALLOWED ALL THE WRIT PETITIONS AND QUASHED THE IMPUGNED ORDER OF THE TRIBUNAL.

JUDGMENT :

Surya Prakash Kesarwani, J.

1. Heard Sri Krishna Agarawal and Sri Lal Mani Singh, learned Central Government Standing Counsel for the petitioners and Sri Shyamal Narain, learned Counsel for the respondents.

FACTS

2. Briefly stated the facts of the present case are that all the private respondents / candidates have completed apprenticeship in different trades under The Apprentices Act, 1961 (hereinafter referred to as Act, 1961). Advertisement for direct recruitment process (OPF/DR/2015A) for Group ''C' posts was issued by the Government of India, Ministry of Defence, Indian Ordnance Factories, Ordnance Parachute Factory, Napier Road, Cantonment Kanpur in the month of April, 2015, inviting applications for the post of Tailor (ss), Machnist (ss), Fitter General Machanic (ss), Carpenter (ss), Fitter Electronic (ss), Examiner Clothing (ss). In Clause 9 of the advertisement it has been provided that the factories website address is www.parachutekanpur.gov.in, which may seen by the intending candidates for any purpose pertaining to this recruitment process. In Claus11 and 24 of the advertisement, it was mentioned as under:-

"11. All necessary information pertaining to this Recruitment Process including the FTA. OLAs. HCAs etc. and also all required Links pertaining to various activities of this Recruitment Process / Selection Process shall be displayed / available in the above Line / Page from the required date and time onwards and shall remain no displayed / available for the prescribed periods only.

24. It is emphasized and reassured to all intending Candidates that the selection to these Posts shall be done strictly based on the merit of the Candidates as adjudged from their performance in the Selection Process in a fair and transparent manner."

3. Looking into the advertisement, all the petitioners of this batch of writ petitions applied for the post advertised for recruitment through direct recruitment process. The petitioners of this batch of writ petitions, except the petitioner of Writ-A No.11776 of 2017, have challenged separately the advertisement issued by different Ordnance Factories of the Ministry of Defence, which are similar to the advertisement as noted above.

4. Learned Counsel for the private respondents / candidates states that the candidate Aditya Kumar is respondent in Writ A No.11776 of 2017 and Writ A No.9563 of 2017 and he has neither applied nor participated in the selection process.

5. All the respondents / candidates filed Original Applications before the Central Administrative Tribunal Allahabad Bench, Allahabad which have been disposed of by the impugned common order dated 06.10.2016. In paragraph no.5 of the impugned common order, the tribunal has noted in nutshell the controversy, as under:-

"what is the effect of Section 22 of the Act, 1961 as amended by Act 29 of 2014. w.e.f. 08.12.2014 and the SRO No. 185 of 1994, dated 01.11.1994."

6. The Tribunal considered the controversy and held in paragraph no.11, as under :-

"11. This order was adjudicated before the Hon'ble High Court of Delhi in the case of Puneet And Anr. Vs. U.O.I. and Ors in W.P. (C) No.26/2009, dated 20.07.2010 in paragraph 10, 20 and 21 of the judgment the bench observes that a harmony has to be achieved of who have successfully undergone apprenticeship training are to be treated as senior to the persons trained earlier and of those who found suitable as other things being equal, a trained apprentice should be given preference over direct recruits and thereafter the placement should be in accordance with their seniority in the years of completion of Apprenticeship course and explaining the interpretation of the Hon'ble Apex Court Judgment in the case of U.P. State Road Transport Corporation's. In paragraph 25 of the judgment the Hon'ble High Court have explained that even in granting preference it shall be on the basis of seniority