IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.06.2008 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.11293 of 2006, 5929, 5930, 5545 of 2000, 42066 of 2006, 11608 of 2002, 25061 of 2005, 44589 of 2002, 16250 of 2007, 30224, 31198, 31199, 33479 of 2007, 4702, 3214 of 2008, 28869, 28870 & 35781 of 2007 AND W.P.M.P.Nos.487. 488 of 2006 & M.P.Nos.1+1+1+1+1+1+1+1 of 2007 & 1 of 2008 1. R.Govindan 2. G.Ezhil 3. M.karvizhiyan 4. C.Sundarrajan 5. M.Selvarajan 6. G.Punniyakotti 7. K.Anbarasu 8. N.Jayaraman 9. M.Kartheeban .. Petitioners in W.P.11293 of 2006 1. R.Govindan 2. G.Ezhil Petitioners in WP.No.5929/2000 1. M.Karvizhiyan 2. C.Sundarrajan 3. M.Selvarajan 4. G.Punniyakotti 5. K.Anbarasu 6. N.Jayaraman Petitioners in WP.5930/2000 M.Kartheeban Petitioner in WP.5545/2000 K.Ragupathy Petitioner WP.42066/2006 https://hcservices.ecourts.gov.in/hcservices/ E.Nixon Petitioner in WP.11608/2002 1.A.Johnson 2. K.Balaji K.Jagadeesan Petitioners in WP.25061/05 P.Damodharan Petitioner in WP.44589/2002 R.Nagarathinam Petitioner in WP.16250/2007 A.Ravindran Petitioner in WP.30224/2007 V.Kalyana Sundaram Petitioner WP.31198/2007 T.Karthikeyan Petitioner WP.31199/2007 G.Madurai Veeran Petitioner WP.33479/2007 J.Balaji Petitioner WP.4702/2008 P.Sriramulu Petitioner WP.3214/2008 R.Venkatesan Petitioner WP.28869/2007 G.Pargunan Petitioner WP.28870/2007 A.Ravichandran Petitioner WP.35781/2007 -Vs- https://hcservices.ecourts.gov.in/hcservices/ 1. The Management of Bharat Heavy Electricals Limited rep.by its Chairman and Managing Director BHEL Corporate Office Siri Fort New Delhi 110 049 ... ISt Respondent in all WPs 2. The General Manager Bharat Heavy Electricals Limited Ranipet, Vellore District .. 2nd Respondent in W.P.11293/06, 5929, 5930, 5545/00 The General Manager, Bharat Heavy Electricals Limited, Boiler Auxiliary Plant, Ranipet- 632 045. 2nd Respondent in WP.42066/06, 11608/02, 25061/05, 44589/02, 16250/07, 30224/07, 31198, 31199/07, 33479/07, 4702/08, 3214/08, 28869, 28870/07, 35781/07. Petitions filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Mandamus, as stated therein. W.P.11293/06 directing the respondents to consider the petitioners for appointment as against the posts of supervisor Trainees advertised in the Advertisement filed as Annexure in the Employment News of issue of 18/24 March 2006 giving due preference to them in accordance with their experience in the respondent company and grant the requisite relaxation. W.P.5929/00, 5930/00, 5545/00 Praying to issue a Writ of Mandamus directing the respondents to consider the petitioners for appointment of a permanent basis in the posts of Chargemen giving due preference to them in accordance with the policy of communal reservation for which the petitioner are entitled holding the practice of the respondents in filling up vacancies in the post of chargemen in the 2nd Respondent establishment by confining recruitment to the post only to in service employees excluding candidates from the open market as violative of Articles 14 and 16 of the constitution of India. W.P. 42066/06 Praying to issue a Writ of Mandamus directing the respondents to grant appointment to the petitioner in the permanent regular service of the respondent company in the post of Welder Grade IV. https://hcservices.ecourts.gov.in/hcservices/ W.P.11608/02 Praying to issue a Writ of Mandamus directing the respondents to regularise the service of the petitioner with effect from the date of his Joining the respondent company i.e from 11.12.97 and in any event, to pay him the same wages as paid to permanent skilled workers doing the same work and issue such further or other consequent orders for attendant benefits. WP.25061/05:- Petition praying to issue a Writ of Mandamus directing the respondents to absorb the petitioners in the service of respondent Company and regularise their service. WP.No.44589/2002 Praying to issue a Writ of Mandamus directing the respondents to regularise the service of the petitioner with effect from January 2001 when he began working in the respondent Company. WP.16250 & 35781/07 Praying to issue a Writ of Mandamus directing the respondents to absorb the petitioner in the permanent service of the respondent Company as a Welder. WP.30224, 31198, 31199 of 2007 and 4702/08, 3214/08, 28869, 28870/07:- Praying to issue a Writ of Mandamus directing the respondents to appoint the petitioner in the permanent service of the respondent Company as a Fitter WP.No.33479/07 Praying to issue a Writ of Mandamus directing the respondents to appoint the petitioner in the permanent service of the respondent Company as a Electrician. For Petitioners :: Mr.V.Prakash Senior Counsel for M/s S.S.Vasudevan P.Chandrasekaran G.RamapriyaGopalakrishnan K.Sudalai Kannu in all the writ petitions For Respondents :: Mr.Sanjay Mohan for M/s Ramasubramaniam & Associates for R1/R2 in all the writ petitions and https://hcservices.ecourts.gov.in/hcservices/ Mr.B.T.Seshadri for R2 in W.P.Nos.5929, 5930 & 5545 of 2000 COMMON ORDER These batch of writ petitions have been filed by the employees of the respondent-Bharat Heavy Electricals Limited (for short, 'BHEL') having its unit at Ranipet. The admitted position is that the petitioners have either completed Diploma in engineering course or underwent I.T.I. training. They were also trained apprentices in terms of the Apprentices Act, 1961. 2. Regarding the first writ petition (i.e.) W.P.No.11293 of 2006, it is admitted by both sides that it has become infructuous, as the very same petitioners have filed subsequent writ petitions. Therefore no relief need be granted in this writ petition. 3. With reference to the other writ petitions, the case of the petitioners, as contended by Mr.V.Prakash, learned senior counsel for the workmen, is that the issue involved is squarely covered by the judgment of this Court rendered in respect of similarly placed apprentices in the Tiruchirappalli unit of the respondent-BHEL. He relied upon the judgment in W.P.(MD) Nos.8675 of 2006 and batch cases dated 12.10.2007, wherein this Court held that a trained apprentice under a contract of apprenticeship under the 1961 Act may not have preference as laid down by the Supreme Court for any employment under his employer. At the maximum he can have a relaxation from the upper age and from any test prescribed for the post and also waiver of sponsorship from the employment exchange. 4. This Court distinguishing those line of judgments of the Supreme Court and after following the decision of the Supreme Court in Narendra Kumar and others v. State of Punjab and others (1985) 1 SCC 130 has held that if there is a promise of employment for the trained apprentices either in the form of policy or in the form of settlement or a term provided under the apprenticeship contract itself, then those issues may be covered by Section 22(2) of the Apprentices Act, 1961 and not by Section 22(1) of the Apprentices Act. In that judgment, this Court also placed heavy reliance upon the recruitment policy laid by the BHEL, wherein absorption of artisan apprentices and supervisory trainees as regular employees have been contemplated. There was also a reference to the Section 12(3) settlement signed between the workmen and the BHEL in respect of Ranipet plant dated 26.10.2005. 5. The said judgment of the Madurai Bench of this Court was taken on appeal by the respondent-BHEL before the Division Bench sitting at Madurai in W.A.(MD) Nos.685 to 687 of 2007. The Division Bench presided by P.K.Misra, J. by judgment dated 14.5.2008 dismissed those Writ Appeals. The Division Bench has held that in respect of the respondent-BHEL, there is a promotion policy guaranteeing employment to trained apprentices and a reference was https://hcservices.ecourts.gov.in/hcservices/ also made to the settlement reached at Ranipet. The Division Bench also rejected the BHEL's attempt to produce the certified copies of agreement, wherein the right of employment has been denied. However, the Division Bench held that those agreements do not relate to the writ petitioners before the Division Bench and therefore in the absence of the BHEL producing the true terms of the contract, the copies produced by them with reference to other employees was not accepted by the Division Bench. In the present set of cases, all the petitioners were trained by the BHEL plant at Ranipet. Therefore, the learned senior counsel for the workmen placed heavy reliance upon the Division Bench's order and stated that it is in no way different from the case of employees relating to the Tiruchirappalli plant. 6. Mr.B.T.Seshadri, learned counsel appearing for the respondent-BHEL in three writ petitions, W.P.Nos.5929, 5930 & 5545 of 2000 contended that originally these employees were denied any right of interview on the ground of age bar. Subsequently that bar was removed and they were called for interview, but they did not qualify for the post. Therefore it was an unfortunate situation that they could not get selected. He also submitted that the post of Chargeman is a promotional post and therefore every post need not be filled up by direct recruitment by promoting these persons directly. 7. Mr.Sanjay Mohan, learned counsel appearing for the respondent-BHEL in the other writ petitions made the following contentions. The first being that the Division Bench of this Court in the decision in BHEL v. S.Srinivasalu and others (cited supra) in paragraph-13 has categorically held that only in case of Section 22(2) contract of apprenticeship alone, the question of preference will arise. In the present case, they took pains to produce in some cases the agreement not having a clause for absorption. In those agreements, there is a specific para (paragraph-5) stating that it was not obligatory for BHEL to offer any employment to apprentices on completion of the period of training in its establishment. The learned counsel fairly submitted that in respect of seven workers, the contract of apprenticeship is not available. But, however, he stated that since it being a public sector, during the relevant time, similar contracts must have been entered into, and therefore the benefit of doubt should be given to the BHEL. Once the contract of apprenticeship is produced and it does not have a clause relating to Section 22(2) giving preference, then the entire foundation of the workmen must fail. 8. Secondly, he also submitted that the Section 12(3) settlement entered into at Ranipet is with reference to regularisation on the basis of the demand made by the union and that cannot be pressed into service as preference to be given to the trained apprentices. He also submitted that the Division Bench finding in paragraph-20 relating to the settlement at Ranipet was a policy for giving preference to the trained apprentices is erroneous and it is not based upon the record. https://hcservices.ecourts.gov.in/hcservices/ 9. He lastly submitted that with effect from 14.8.2007, a new recruitment policy has been brought into force, which does not contain the clause relating to any preference and therefore any recruitment to be made after this date must be based on the new policy. Therefore, if the settlement under Section 12(3) is not a settlement in terms of giving preference and the new policy is not having any clause for preference, then the question of the petitioners being granted any relief does not arise. 10. In the light of the rival submissions, it has to be considered whether the case of the workmen can be countenanced by this Court. As contended by Mr.V.Prakash, learned senior counsel, even under the new policy, it is not as if the BHEL has given up the policy of recruiting in-service candidates who were employed as temporary employees or NMR's. A reading of paragraph 3.4 shows that in respect of non-executive categories in 'A' group, there will be a recruitment from temporary employees for a specified period during which they are to be first placed on daily rated basis, then on consolidated wages before the regularisation in the relevant regular grade. In the same way, supervisory trainees who had undergone training for one year will get absorbed as Assistant Chargeman in the same grade. Though the policy does not mention about any trained apprentices, in the present case, the workmen have been fighting before this Court for the last five years and the new policy cannot be pressed into service. The new recruitment policy came to be issued after coming to know of the large number of cases pending for regularisation. 11. In that view of the matter, this Court is unable to take a different stand than that of the judgment of this Court, as confirmed by the Division Bench. Though the Section 12(3) settlement referred to in these writ petitions regarding the Ranipet plant refers to the absorption of NMR's, the same was pressed into service in the case before the Madurai Bench to show that the BHEL is not averse to absorb the trade NMR's as found in paragraph-4 of the said settlement. 12. Though Mr.Sanjay Mohan, learned counsel tried to argue that it was a case of regularisation and not recruitment, the Supreme Court has held that regularisation cannot be a new source of recruitment. It can only be either a recruitment based on promotion or by direct recruitment. Therefore, this Court has no hesitation in rejecting the said contention, especially in the light of the fact that in paragraph-4 of the settlement refers to the trade NMR's. 13. The other question is whether in respect of seven workers the agreement had not been produced and therefore a plea is made that the respondent being a public sector, a similar clause would have been entered into at the relevant time. One has to refer only to the Division Bench order in the BHEL v. S.Srinivasalu and others case (supra), the Division Bench in paragraph-18 has noted that the management has not bothered to file the actual contract of apprenticeship training entered with the concerned candidate and https://hcservices.ecourts.gov.in/hcservices/ therefore the Court cannot go by copies of other agreements produced. The same logic will apply to the seven workers also. 14. The question is whether in the light of the new policy and the distinction being made to the Section 12(3) settlement, whether the present cases can be thrown out by stating that the workmen have no preference for employment. This Court is of the opinion that the case of the present writ petitioners are in a way different from the case of the Tiruchirappalli workmen for whom the Division Bench has affirmed their right of preference. It must be also stated that these cases have been filed before the so called recruitment policy was evolved on 14.8.2007. Therefore, this Court is not persuaded to take a different view than that of the Division Bench order in BHEL v. S.Srinivasalu and others dated 14.5.2008 made in W.A.Nos.685 to 687 of 2007. 15. In the light of the above, all the writ petitions, except W.P.No.11293 of 2006, will stand allowed and the respondent-BHEL is directed to undertake the exercise of considering the case of the writ petitioners in the light of the order of this Court within a period of three months from the date of receipt of a copy of this order. However, W.P.No.11293 of 2006 stands dismissed as infructuous. There will be no order as to costs. Consequently, all the connected miscellaneous petitions stand closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ss To 1. The Chairman and Managing Director Bharat Heavy Electricals Limited BHEL Corporate Office Siri Fort New Delhi 110 049 2. The General Manager Bharat Heavy Electricals Limited Ranipet Vellore District https://hcservices.ecourts.gov.in/hcservices/ 3. The General Manager Bharat Heavy Electricals Ltd., Boiler Auxiliary Plant Ranipet- 632 045 9 ccs to Mr.K. Sudalaikannu, Advocate, Sr. 31991 to 31996, 32002 to 32004 6 ccs to Mr.P. chandrasekaran, Advocate, SR. 31998 to 31990, 32005, 31997, 32000 4 ccs to Mr.B.T. Seshadri, Advocate, Sr. 31567 to 31570 19 cc to Mr.S. Ramasubramaniam, Advocate, Sr. 31596 W.P.Nos.11293 of 2006 etc.batch CK (CO) kk ,rvl,sr, gkg 3/7 https://hcservices.ecourts.gov.in/hcservices/