IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 10388 of 2008 Decided on : 23.12.2010. Anand Vijay and others …Petitioners. Versus H.R.T.C. ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioners : Mr. Paresh Sharma, Advocate. For the Respondent : None. Kuldip Singh, J (Oral) The learned counsel for the petitioners has confined the case of the petitioners to the reliefs No.(i) and (ii) prayed in the petition. The further case of the petitioners is that selection process initiated by respondent for filling up 153 posts of drivers for which the interviews have already been held in the month of January and February, 2004 without considering the cases of the petitioners may be struck down. The respondents may be directed to consider the case of the petitioners for appointment to the posts of drivers on the basis of Annexures A-2 and A-3 and similar letters issued to other petitioners. 2. The brief facts of the case are that respondent has been established under Section 4 of the Road Transport Corporation Act, 1950 (for short ‘Act’). Section 45 of the Act provides framing of regulations by Corporation with the previous sanction of the State Government for 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 administration of the affairs of the Corporation including the conditions of the appointment and service and the scale of pay of officers and other employees of the Corporation. 3. The respondent-Corporation has framed regulations for recruitment and promotion to the posts of drivers but respondent- Corporation has framed a policy/scheme approved by its Board of Directors on 26.12.1994 for filling up the posts of drivers etc. on contractual basis. The eligibility conditions for filling up various posts as per policy dated 26.12.1994 shall be the same as prescribed in Recruitment and Promotion Rules for various categories. The appointments on contractual basis are to be regulated through the agency of Employment Exchange and the candidates sponsored by the Employment Exchanges are to be called for interview. The contract period initially as per the policy is to be for 89 days with break in service of one day and continuous employment in this manner for one year. As per condition No. ( vii) in the policy after completion of one year the cases would be reviewed for offering regular employment but lateron the said clause was deleted. 4. The petitioners after passing their matriculation examinations, got their names registered with the various Employment Exchanges/Sub Employment Exchanges in their respective areas. The respondent-Corporation had invited applications for driving training from desirous candidates. The petitioners submitted their applications and they were called for interviews and on that basis, they were given 90 days training and also paid a stipend of ` 500/- each. The petitioner No.1 was called on 31.5.2000 vide Annexure A-2 whereas petitioner No.9 was called on 15.9.2000 vide Annexure A-3. As per clause (iii) of policy 3 Annexure A-1, the engagement on contract basis would be made only as and when vacancies will arise as per norms fixed by the competent authority and training would be imparted only after submission of original documents. 5. The petitioners had undergone 90 days training and were relieved after 90 days successful training. On 17.5.2002 the respondent- Corporation had offered appointments to three drivers namely Waryam Singh, Subhash Kumar and Kishori Lal, who had undergone the same training with the petitioners. The respondent in spite of imparting training to petitioners had initiated the process of filling up 153 posts of drivers afresh without considering the petitioners. The interviews for filling up 153 posts of drivers on contractual basis on a consolidated salary has already been held in January/February, 2004. It is submitted that respondent has initiated process for filling up 153 posts of drivers arbitrarily, illegally and ignoring the claim of the petitioners , who have successfully completed the training of 90 days duration. The training of 90 days training imparted to petitioners is covered by the Apprentices Act, 1961 (for short ‘1961 Act’). In these circumstances, it is incumbent upon the respondent to engage the petitioners. It has also been stated that in the letters addressed to petitioners and others no mention of 1961 Act has been made. The respondent has indulged in unfair labour practice by not following the mandatory provisions of 1961 Act. The respondent cannot put in abeyance its own regulations as well as Recruitment and Promotion Rules for filling up the posts of drivers. On these pleas the petition has been filed. 6. The respondent has contested the petition by filing reply and has admitted that petitioners were imparted training of 90 days by the 4 Corporation in the year 2000. The training does not confer any right on petitioners for engagement as driver on contract basis which was specifically mentioned in call letters for driving training issued to the petitioners in the year 2000. It is not incumbent on the respondent that the persons who have already undergone training only those are to be considered for appointment as drivers on contract basis. It has also been admitted that on 26.12.1994 a policy decision was taken by the Board of Directors of the respondent for filling up the posts of drivers etc. on contract basis. It has been submitted that for filling up 153 posts of drivers, the respondent had issued advertisement on 22.9.2003. The competent authority had invited names of candidates from various Employment Exchanges and also invited applications from eligible candidates. The petitioners were also free to apply to the said posts but out of the petitioners only three namely Sat Pal Singh, Joginder Singh and Rajinder Singh applied and in fact Rajinder Singh had qualified the trade test held in January, 2004 and was placed in the panel of selected candidates at serial No. 42. The respondent had advertised 153 posts of drivers on contractual basis as per policy and the rules in force in the respondent-Corporation. The petitioners except three petitioners referred above could not be considered for posts of drivers since they neither applied nor their names were sponsored by the Employment Exchanges. The respondent has thus prayed for dismissal of the petition. The petitioners filed rejoinder and reiterated their stand stated in the petition. 7. I have heard the learned counsel for the parties. At the time of hearing, the learned counsel for the petitioners has confined his prayer to reliefs No.(i) and (ii) in the petition which are as follows:- 5 “(i) That the selection process initiated by the respondent Corporation for filling up 153 posts of drivers, for which the interviews have already been held in the months of January and February, 2004 without considering the cases of the applicants, may be declared ultra vires the Constitution and struck down; (ii) That the respondent-Corporation may be directed to consider the case of the applicants for appointment to the posts of drivers on the basis of Annexures A-2 and A-3 issued to the applicants No.1 and 9 and similar letters issued to other applicants.” 8. The petitioners have not pressed their claim against the scheme/policy Annexure A-1. In these circumstances, it can be safely concluded that petitioners have no grievance against the scheme/policy Annexure A-1. The petitioners are claiming engagement as drivers on the basis of Annexure A-2 letter dated 31.5.2000 addressed to petitioner No.1 and letter dated 15.9.2000 addressed to petitioner No.9. It has been submitted that similar letters were issued by respondent to other petitioners also. The further case of the petitioners is that even though there is no reference of 1961 Act in letters dated 31.5.2000 and 15.9.2000 but still the petitioners are entitled to benefit of 1961 Act for their engagement as drivers in the respondent-Corporation. The stand of the Corporation itself makes it clear that at the relevant time 153 posts of drivers were available with the respondent and on 8.10.2004 by way of interim order the erstwhile Tribunal has ordered that selection, if any, will be subject to the final decision of the O.A. Thus, the question involved in the petition whether the petitioners are entitled to engagement as drivers 6 in respondent-Corporation on the basis of letters dated 31.5.2000 and 15.9.2000 against 153 posts of drivers. 9. The respondent-Corporation has taken the stand that advertisement for appointment of 153 drivers on contract basis as per scheme / policy Annexure A-1 was issued on 22.9.2003. The applications were invited through Employment Exchanges and the candidates were also at liberty to apply directly. In the rejoinder, the petitioners have stated that Corporation has not placed on record copy of advertisement dated 22.9.2003. The stand of the petitioners in the rejoinder regarding advertisement indicates that they have not denied the advertisement but they have questioned the contents of the advertisement for which the prayer has been made for drawing adverse inference. There is nothing on record to show that respondent- Corporation has taken false stand that advertisement was issued on 22.9.2003 for filling up 153 posts of drivers on contract basis as per the policy / scheme. 10. According to the Corporation, three petitioners in fact had applied in pursuance to advertisement dated 22.9.2003 and one petitioner Rajinder Singh had qualified the trade test and was placed at serial No. 42 of the panel. This indicates that the public in general was aware of the advertisement dated 22.9.2003 and for that reason, three petitioners had applied for the posts of drivers advertised by the Corporation on 22.9.2003. The other petitioners neither applied nor their applications were sent by respective Employment Exchanges, therefore, their cases could not be considered by the respondent- Corporation for the posts of 153 drivers and since they have not applied they cannot be heard to raise any grievance for not considering their 7 cases by Corporation against the posts of 153 drivers. Out of the three petitioners, who had applied, one was taken on panel on merits and other two were not selected and those two have also not raised any grievance regarding their non-selection. 11. The issue ultimately boils down to the right of petitioner for engagement as drivers against 153 posts on the basis of letters dated 31.5.2000 and 15.9.2000. The petitioners have taken the stand that reference of 1961 Act has not been made in the letters dated 31.5.2000 and 15.9.2000 but still in view of nature of training imparted by respondent to the petitioners they are entitled to the benefit of 1961 Act. The apprentice has been defined in clause (aa), apprenticeship training in clause (aaa), trade apprentice in clause (q) of Section 2 of 1961 Act. 12. The learned counsel for the petitioner has relied sub section (2) of Section 22 of 1961 Act for the engagement of petitioners against 153 posts of drivers. The petitioners have not placed any material on record to show that they were engaged as apprentice or they have undergone apprenticeship training or they are trade apprentice as per 1961 Act. The letters dated 31.5.2000and 15.9.2000 cannot be construed as engagement of petitioners on a contract of apprenticeship. The letters dated 31.5.2000 and 15.9.2000 only indicate that petitioners were directed to report for duty for driver training which was to be imparted on the condition that training would be of specified period. The training would not confer any right for engagement on contract basis. The engagement on contract basis would be made only as and when vacancies arise as per norms fixed by the competent authority. The engagement after completion of one month training would be qualifying 8 the driving test conducted by the final committee. The training will be imparted after submission of certain documents. 13. The Rule 6 of apprenticeship Rules 1961 provides that every employer shall send to the Apprenticeship Adviser the contract of apprenticeship for registration within three months of the date on which it was signed. It also provides that model contract form as may be specified by the Central Government with such variation as the circumstances of each case may require, be used for the respective purposes therein mentioned. There is nothing on record nor it is the case of the petitioners that contract of a apprenticeship was sent to the Apprenticeship Adviser for registration as per sub Rule (1) of Rule 6. Thus, seen from any angle, the letters dated 31.5.2000 and 15.9.2000 cannot be construed as contract of apprenticeship and, therefore, the respondent cannot be directed to engage the petitioners against 153 posts of drivers under sub section (2) of Section 22 of 1961 Act. There is no merit in the petition. 14. No other point was urged. 15. The result of the above discussion, the petition fails and is accordingly dismissed. The interim order dated 8.10.2004 stands vacated. ( Kuldip Singh ), December 23, 2010 Judge. (GR)