Shri Arun Kumar And Ors. vs Mr. Mukesh Kulsreshtha And Ors.
2001 Latest Caselaw 1837 Del

JUDGMENT

Khan, J.

1. The principal question involved is whether a trained apprentice was to be appointed to the post on preferential basis bypassing any written examination/interview and in the present case, a trade test prescribed under recruitment rules/regulations/executive instructions.

2. Respondents are trained apprentices and claimants to the post of Telcom Mechanic. They want to have appointment without being subjected to trade test and for this filed OA's 378 and 381/97 and based their case on the Supreme Court judgment in UPSRTC v. U.P.Parivahan Limited, . Petitioners contested this and Tribunal disposed of respondents' OAs by order dated 13.10.97 requiring petitioners to consider them on preferential basis in terms of Supreme Court judgment Supra. It seems that petitioners thereafter dithered and respondents filed first set of contempt petitions which was disposed of by order dated 23.7.1998 requiring them to consider respondents against available 34 vacancies if otherwise found eligible. They then filed second set of contempt petitions (No. 350, 351 and 352/1998) alleging non-consideration and these were disposed of by impugned order dated 13.8.1999 directing petitioners to consider them for appointment to the post without requiring them to undergo the trade test.

3. Petitioners are challenging this and contend that Tribunal had executed its contempt jurisdiction by passing additional direction which was extraneous to its basic order dated 13.10.1997 and in any case respondents had to be subjected to the trade test in the face of latest Supreme Court judgment in Bhoodev Singh v. Chairman, U.P.S.E.Bd. and Ors. (Civil Appeal Nos. 1838-1853/2001) decided on 14.3.2001.

4. It all comes to whether respondents had to undergo trade test or whether they could be exempted from this and whether Tribunal, exceeded its contempt jurisdiction to pass an additional direction in the matter.

5. The legal position on the issue is no more res integra. Supreme Court dealt with it first in UPSRTC v. U.P. Parivahan Limited (supra) and laid down the criteria in para 12 of its judgment which amongst other things provided that "other things being equal, a trained apprentice should be given preference over direct recruits." The court, consequently directed appointment of candidates without requiring them to appear in written examination in the facts and circumstances of the case in para 13. The terms of these two paras were interpreted differently at different stages till Allahabad High Court Full Bench ruled in Arvind Gautam v. State of U.P. that trained apprentices had to appear in the competitive test/examination, as may be prescribed in respect of a particular selection and thereafter if an apprentice trainee secured equal marks to the non-apprentice one, preference was required to be given to the apprentice trainee.

6. An appeal was taken against this but Supreme Court approved and affirmed it in U.P. Rajya Vidyut Parishad Apprentice Welfare Association and Anr. v. State of U.P. and Ors. JT 2000 (6) SC 227. Reconsideration of this judgment was again sought in Bhoodev Singh's case (supra) but Supreme Court, after referring in paragraphs 12 and 13 of its judgment in UPSRTC's case (supra), clinched the issue by holding as under:-

"In paragraph 13 of the said judgment, the court has indicated as to what would be the mode for consideration in the cases in hand and it is in this context the court said that such apprentices would not be required to appear in the written examination. The aforesaid statement made in paragraph 13 cannot be of universal application irrespective of the relevant provisions of the rules/regulations/executive instructions dealing with the matter of appointment to different posts, and therefore the Full Bench of the Allahabad High Court was justified in its conclusion with regard to the requirement of any written test. In other words, if any particular service rule/regulation, the process of selection indicates that there would be a written examination and viva-voce interview, an apprentice trainee would not be entitled to say that he is not required to take any of those tests. Undoubtedly, the trainee will get an advantage over a fresh direct recruit in the matter of employment, as has been held by the court in UPSRTC case."

7. The legal position on the issue stands thus conclusively settled and there is no scope for any further doubt or debate on it. The net position that emerges is that a trained apprentice would have a undergo a written examination, viva voce test, any other competitive test prescribed by recruitment rules or even for that matter by any regulation or executive instructions prescribing the process of selection for the post. Where such examination or test was not provided for selection/appointment on the post, an apprentice was to be accorded consideration on preferential basis as against a non-apprentice. But wherever such examination or test was prescribed, a trained apprentice had to rub shoulders with the non-apprentice and it is only at the time of consideration for appointment that he would receive preference where he had secured equal marks with the other.

8. All that remained to be seen in this context was whether in the present case recruitment rules/regulations/executive instructions provided for any such trade test. There is no dispute that the post of Telecom Mechanic was amongst other modes to be filled up by direct recruitment and for this, (Auth AI 245/54) dated 20/9/72 produced by petitioners's counsel provided for a trade test and interview to be conducted. Therefore, even though recruitment rules did not provide for such a test as a mode of selection for appointment to the post of Telecom Mechanic, this regulation fills up the gap and satisfies the requirement of the law laid by Hon'ble Supreme Court in Bhoodev Singh's case (supra).

9. We accordingly hold that respondents were required to undergo the trade test as prescribed by this regulation and that they were entitled to preferential treatment for appointment only after they had secured equal merit along with any non-apprentice candidates.

10. Having held so, we don't deem it necessary to examine the other issue whether Tribunal had exceeded its contempt jurisdiction by passing an additional direction which was not contained in its basic order.

11. This petition accordingly succeeds and is allowed and the impugned Tribunal order dated 13.8.1999 quashed.