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G.RAVIKU versus THE CHAIRMAN AND D.G.O.F

High Court of Madras

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G.Raviku v. The Chairman and D.G.O.F - W.P.(MD)No.6095 of 2006 [2007] RD-TN 2042 (22 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 22/06/2007

CORAM:

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.(MD)No.6095 of 2006

and

M.P.(MD)No.1 of 2006

G.Ravikumar Petitioner

Vs.

1.The Chairman and D.G.O.F,

Ordnance Factory Board,

10/A, S.K. Bose Road,

Kolkatta - 700 001.

2.The General manager,

Ordnance Factory,

Ministry of Defence,

Trichy - 620 016.

3.The Employment Officer,

The District Employment Office,

Employment and Training Department,

Trichy-1.

Respondents

PRAYER

Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus, forbearing the first and second respondents from making any selection or appointments for the posts of 'FITTER' or Semi Skilled Fitter or for any posts without giving any notification of the vacancies in the Employment News and other News Papers, and without notifying the said vacancies to the Employment Exchange by getting the particulars about the eligible candidates from the District Employment Office on seniority basis and on Reservation basis.

For Petitioner .... Mr.S.Palanivelayutham For Respondents-1&2 .... Mr.P.Subba Raj, CGC.,

For Respondents-3 .... Mrs.V.Chellammal, Spl.Government Pleader :ORDER



1. The petitioner had got his name registered in the Employment Exchange as a skilled worker. The grievance of the petitioner is that the respondents, Central Ordnance Factory, Ministry of Defence, are not calling the candidates from the Employment Exchange while making appointments. But they are giving preference in employment to the Trade Apprentice, who are trained by them. Therefore, the petitioner prays for a direction from this Court to the respondents that for future vacancies candidates must be called for from the Employment Exchange and appointments to be made as per the list.

2. On behalf of the respondents, a counter affidavit dated 20.9.2006 was filed. In that, they had stated that the department is guided by the instructions issued by the Ministry of Labour dated 26.2.1996 and following the decision of the Hon'ble Supreme Court, they have been recruiting the candidates strictly from the waiting list of Ex-Trade Apprentices of the second respondent factory. Already, the waiting list of candidates kept with them is more than the requirement and therefore, the question of calling candidates from the Employment Exchange does not arise.

3. Attention of this Court was also brought to a letter issued by the second respondent dated 13.1.2006 wherein the petitioner in W.P.(MD) No.9722 of 2005 was also informed the correct position with reference to the recruitment procedure. The following paragraphs found in the said letter are relevant to the context, which are extracted below:

"6.Accordingly, OFT has been considering Trade Apprentices trained from this factory for appointment. As already there is a huge waiting list available in the factory, deviating from the instructions and in the letter issued by the Ministry of Labour and Ordnance Factory Board, other candidates can not be considered, OFT can no consider the case of Shri. T.Ganapathy as he has not been trained by this factory and he has not undergone apprentices hip at OFT.

7. For the reasons brought out above that in the matter of appointment of Skilled Tradesmen in the factory, apprentices already trained by the factory only can be given preference and only when apprentices trained by the factory are not available, notification will be made to the Employment Exchange..."

4. In a sense, the stand of the respondents are that there is a guarantee of employment for the apprentices trained by the factory as they are well trained to the work of the factory and the outsiders like petitioner cannot seek to disturb the present arrangement in the absence of any illegality or irregularity.

5. In the light of the stand taken by the respondents, the learned counsel brought to the notice of this Court a judgment of a Division Bench of this Court in K.Venkadesan v. Chairman-cum-Managing Director, Neyveli Lignite Corporation and others [2007 (3) CTC 161] (to which I am a party), held after referring to the decision of the Hon'ble Supreme Court in U.P.State Road Transport Corporation and another v. U.P.Parivathan Nigam Shighukha Burosgar Santh and others 1995 (2) SCC 1, and further judgment of the Hon'ble Supreme Court made in Civil Appeal Nos.5285 to 5328 of 1996 dated 3.10.1996 Tamil Nadu Electricity Board v. P.Arul and others, that Apprentices/Trainees shall have to go through the process of selection provided under the Service Regulations/Rules. Keeping in view the fact that the Apprentices acquire training under the same management, they are not required to sit in the written test. A trained Apprentice will have a preference over the direct recruitment if other things are being equal.

6. Per contra, it was argued that if there was employment guarantee for the trained apprentices, then Section 22 (2) of the Apprentices Act 1961 will come into operation and the same reads as follows: "22. Offer and acceptance of employment-(1) 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 apprentice to accept an employment under the employer.

(2) Notwithstanding anything in sub-section (1), where there is a condition in a contract of apprenticeship that the apprentice shall, after the 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."

7. The issue decided by the Honb'le Supreme Court both in U.P.State Road Transport Corporation and Tamil Nadu Electricity Board's (case cited) supra arose out of the situation where Section 22(1) will come into operation and where there is no guarantee for any employment. If there is a guarantee for employment after the training period, then certainly to the exclusion of any outsider, the trained apprentices can be preferred. Therefore, reliance was placed upon the decision of the Hon'ble Supreme Court in Narender Kumar and others v. State of Punjab and others [(1985) 1 Supreme Court Cases 130] wherein, it has been held in paragraph No.9 as follows:

"9. We are also of the opinion that, apart from the implications arising out of Section 22(2) of the Apprentices Act, paragraph 2 of the letters of appointment creates a binding obligation upon the employer to absorb the apprentices in the department on the successful completion of the training period, provided there is a vacancy in which the apprentices can be appointed. It would be contrary both to the letter and spirit of paragraph 2 of the letters of appointment to hold that, even if there is a vacancy in which an apprentice can be appointed after the successful completion of his training,t he employer is free not to appoint the apprentice sand fill that vacancy by appointing an outsider. Such a reading of the assurance contained in paragraph 2 will also frustrate the very object of the provision made by the Legislature in Section 22(2) of the Act. The object of that provision is to guarantee, to the extent of the existence of vacancies, that the apprentices will not be rendered jobless after they complete their training."

8. Reliance was also placed upon a recent Division Bench judgment of this Court reported in (2007) 3 MLJ 967 [M.Elumalai and others v. M. Bhuvaneswari and others]. Though the said decision did not arise under the Apprentices Act 1961, wherein the paragrah No.11 reads as follows:

"11. The entry into the category of nurses starts with the admission into a Government Training School. It is a composite scheme of recruitment, training and absorption exclusively for Government institutions. According to the State, if a person wants a posting in a Government Hospital, the entry point is an admission in the training institution run by the Government and there is no scope for any lateral entry. The candidates who succeed in the examination and are given training in Government institutions enter into an agreement to serve the Government for a minimum period of three years after completion of their training. Therefore, the Government provides these candidates rent-free quarters, free supply of electricity, paid stipend, which includes uniform allowance and therefore, public money is spent on them. The prospectus for admission also says "nursing students who have successfully completed their training and obtained their diplomas will be eligible for appointment as nurses. The appointment cannot be guaranteed to all or any of the successful candidates. Recruitment will be made in accordance with the Tamil Nadu Medical Subordinate Service Rules." Every year, 1795 candidates successfully come out of these Government institutions and there are more than enough candidates waiting for appointment in nurse posts. The Government is bound to protect these trainees and as observed in (1995) 2 SCC 1, having spent public money on them, the absorption of these trainee students cannot be said to be unreasonable."

9. Further, relevant passage found in paragraph 13 are extracted below: "13. ... When even the nurses who have been trained in the Government institutions and who have executed the bond to serve the Government for a period of three years would not be entitled to a mandamus in view of Rule 16, it is difficult to see how the private nurses who had failed in their attempt to secure admission by passing the Government entrance examination would be entitled to such a mandamus. Their right is much inferior to that of the Government nurses."

10. After quoting several decisions, the Division Bench upheld the right of the State in recruiting persons who are trained by them at their expense to the exception of a total stranger to the institution.

11. In the light of the above, there is no cause of action for the petitioner to seek for a direction to the respondents to forbear from making any selection from out of the waiting of the Trade Apprentices trained by the second respondent factory. Hence, the Writ Petition fails and the same is dismissed. No costs. Consequently, M.P.No.1 of 2006 is also dismissed. Mpk/asvm

To

1.The Chairman and D.G.O.F,

Ordnance Factory Board,

10/A, S.K. Bose Road,

Kolkatta - 700 001.

2.The General manager,

Ordnance Factory,

Ministry of Defence,

Trichy - 620 016.

3.The Employment Officer,

The District Employment Office,

Employment and Training Department,

Trichy-1.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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