CWP No. 12204 of 2007 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 12204 of 2007 Date of Decision: 8.5.2008 (i) CWP No. 12204 of 2007. Darshan Singh and others ....Petitioners Versus Bhakra Beas Management Board and others ....Respondents Present: Shri Raman Sharma, Advocate, for the petitioners. Shri N.S. Bawa, Advocate, for the respondents. (ii) CWP No. 1343 of 2008. Ajay Kumar and others ....Petitioners Versus Bhakra Beas Management Board and others ....Respondents Present: Shri Shiv Kumar, Advocate, for the petitioners. Shri N.S. Bawa, Advocate, for the respondents. (iii) CWP No. 2015 of 2008. Gurdial ....Petitioner. Versus Bhakra Beas Management Board and others ....Respondents Present: Shri H.S. Saini, Advocate, for the petitioners. Shri N.S. Bawa, Advocate, for the respondents. Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE MOHINDER PAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? CWP No. 12204 of 2007 (2) 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. This order shall dispose of Civil Writ petition No. 12204 of 2007, wherein the petitioners having obtained National Apprenticeship Certificate in the trade of lineman from the respondent-Bhakra Beas Management Board (for short `the BBMB’), sought appointment as lineman, pursuant to advertisement dated 27.10.2006 as amended on 15.4.2007, as also Civil Writ petition No. 1343 of 2008 and Civil Writ Petition No. 2015 of 2008, wherein challenge is laid to the the condition of dispensing with the written examination for the holders of National Apprenticeship Certificate from the BBMB. The respondent-BBMB on 27.10.2006 invited applications to fill upon 29 posts of lineman by way of direct recruitment. However, by virtue of the subsequent corrigendum (Annexure P.4), the number of posts of lineman were revised to 47. The prescribed qualification and experience were matric or its equivalent in the trade of lineman. The petitioners in Civil Writ Petition No. 12204 of 2007 filed a Writ Petition before this Court claiming benefit of judgment of the Hon’ble Supreme Court in U.P. Road Transport Corporation v. U.P. Parivahan Nigam Shishukhs Bereozgar Sangh & Ors., AIR 1995 Supreme Court 1115, pointing out that Punjab State Electricity Board has been considering the apprentice trainees of the Punjab State Electricity Board for appointment without holding of the written examination for its apprentice trainees. It is contemplated that the holding of the written examination for the petitioners is illegal. After the said petition was filed, the BBMB has taken a decision that the candidates, who had got apprenticeship training from the BBMB are not to be subjected to written test. The said decision became subject matter of challenge in Civil Writ Petition Nos. 1343 and 2015 of 2008. CWP No. 12204 of 2007 (3) In reply to the writ petition, the BBMB has relied upon Regulation 4 of the BBMB Class III & IV Employees (Recruitment and Conditions of Service) Regulations, 1994. It was pleaded that the Staff Selection Committee is to advertise the vacancies and notify the vacancies to the Employment Exchange and hold test and conduct interviews as per the procedure approved by the Chairman from time to time. In view of the said regulation, the BBMB vide its communication dated 3.7.1998 notified the procedure regarding recruitment of Class-III and Class-IV posts by the Centralised Staff Selection Committee of BBMB. Para 2(e) of the aforesaid letter stipulates that in case the number of applications received against advertisement is large, the Centralized Staff Selection Committee shall hold test or conduct interviews for the shortlisting of the candidates. Subsequently vide letter dated 7.2.2000, the Chairman of the BBMB decided that if the Centralised Staff Selection Committee decides to hold the test for the purposes of shortlisting the candidates, then all the eligible candidates should be called for the test. Thereafter, the merit list of the candidates, who passed the test be prepared and three candidates against one post be called for interview qua their merit, keeping in view the reserved posts for various categories. In view of the instructions issued, the Centralised Staff Selection Committee fixed the criteria. The criteria was that screened out candidates are required to be called for trade test and interview in the ratio of 1:3. All the 30 BBMB trained eligible candidates and 48 candidates screened on the basis of merit of such screening test were to be called for trade test and interview. Similarly for 10 posts meant for Scheduled Castes category, 14 BBMB trained apprentices and 16 candidates on the basis of merit in the screening test were to be called for trade test and interview. Similar ratio was fixed in respect of other categories. 50 marks were assigned for the trade test and interview. 25 CWP No. 12204 of 2007 (4) marks were earmarked for trade test to check proficiency of the candidates in the lineman trade, whereas 10% weightage i.e. 5 marks were earmarked to the candidates, who had taken two years apprenticeship training from BBMB. Minimum two marks for two apprenticeship training in BBMB were assigned to be given to the apprentices, who had done apprenticeship after 1.1.2004, but for the trainees who had completed training before 2004, extra-weigtage of 0.25 marks per year were to be given to them. Five marks were allotted for experience of lineman excluding the period of apprenticeship training (i.e. one mark for each year experience limiting to 5 marks for 5 years or more experience). 5 marks were assigned for higher qualification like Diploma/Degree/AMIE in the Electrical Engineering, whereas 10 marks were assigned for personal interview. It is also pointed out that the candidates, who have done apprenticeship training from BBMB were not subjected to screening test. All candidates including the candidates, who have done their apprenticeship from BBMB were subjected to trade test and interview and graded as per the criteria fixed. On the basis of the criteria fixed, certain candidates, who have completed apprenticeship training from BBMB, could not make it to final selection and thus, it is contended that the procedure adopted by the BBMB is in tune with the judgment of the Hon’ble Supreme Court in U.P. Road Transport Corporation's case (supra). Before we advert to the respective contentions of the parties, the Regulations pertaining to the appointment of the candidates to the post of lineman need to be examined. The Regulations applicable are Bhakra Beas Management Board Class-III and Class-IV Employees (Recruitment and Conditions of Service) Regulations, 1994 (for short `the Regulations'). The appointment to the post covered under the aforesaid Regulations is to be made in the manner specified in Schedule-A CWP No. 12204 of 2007 (5) appended with the Regulations. Regulation No. 4 contemplates that the Staff Selection Committee shall hold test and/or conduct interviews as per the procedure approved by the Chairman from time to time. Relevant clauses of Regulation 4 of the Regulations read as under:- “4. Mode of appointment.--(1) Appointment to the post (s) in the group(s) shall be made in the manner specififed against each in the Schedule `A' annexed with these regulations. (2) The direct appointment to Class III and Class IV posts borne on the cadre of Bhakra Beas Management Board shall be made only, if the partner State Government and their Electricity Boards are unable to provide personnel for the vacancies so notified to them. Such appointment shall be made by the appointing authority on the recommendations of the Centralised Staff Selection Committee as may be constituted by the Chairman. (3) (i) The Staff Selection committee, on the basis of requisition received from the various Heads of Departments of the Board, shall advertise the vacancies through the press and notify the vacancies to the Employment Exchanges and shall hold test and/or conduct interviews, as per the procedure approved by the Chairman from time to time and recommend the selected candidates to the respective Heads of Departments for appointment.” Still further, Regulation 21 of the Regulations empowers the Chairman of the BBMB to relax operation of the Regulation or the particular provisions thereof in case application of these Regulations or CWP No. 12204 of 2007 (6) any particular provision thereof is likely to cause substantial hardship in case of any individual employee or class of employees by reasons to be recorded. The criteria in terms of Regulation 4(3)(i) of the Regulations has been circulated on 3.7.1998. Para 2(e) of the said circular as substituted on 7.2.2000 reads as under:- “In case the number of applications received against advertisement is large and the CSSC decides to hold test for the purpose of short-listing of candidates then all the eligible candidates should be called for test. Thereafter, the merit list of the candidates who pass the said test be prepared and 3 candidates against one post be called for interview in order of their merit keeping in view the reserved posts for various categories. In case the candidates are to be called for interview without holding the test, Chairman of the CSSC shall decide the criteria for short-listing of the candidates in consultation with other Members of the Committee.” The written test, which was conducted was meant for short- listing of candidates. The candidates who have completed their apprenticeship training from the BBMB were not subjected to the screening test. Such test is for shortlisting of the candidates. The question, which is required to be decided is whether the Apprentices who have completed their training from BBMB can be exempted from the screening test. Learned counsel for the petitioners, other category candidates, has vehemently argued that it was a condition in the advertisement (Annexure P.2) inviting applications for the post of CWP No. 12204 of 2007 (7) lineman itself that the Centralised Staff Selection Committee may restrict the number of candidates for interview to a reasonable limit on the basis of qualification and experience higher than the minimum prescribed in the advertisement or by holding a screening test or by any other method devised by the Centralised Staff Selection Committee. Once, the Centralised Staff Selection Committee has decided to take screening test, then all the candidates are required to be subjected to screening test. The screening test in respect of the BBMB apprentices cannot be dispensed with merely for the reason that they had completed apprenticeship training from BBMB. It is further contended that the apprentices who have got the apprenticeship certificate irrespective of the Institute(s), form one class and the differential treatment given to the BBMB apprentices violates the equality of opportunities granted to all the candidates under Articles 14 and 16 of the Constitution of India. Learned counsel for the other candidates have relied upon Dr. A.K. Bakhshi v. Panjab University, 2000(1) SCT 1038; Musheer Ahmad v. The Punjab Wakf Board, 2002(2) SCT 781 and Devendra Singh Sihmar v. Haryana Public Service Commission, 2005(3) SCT 594, to contend that relaxation for the BBMB apprentices for appearing in the screening test is wholly arbitrary. It is contended that once the selection process has been set in motion, the same cannot be tinkered with by granting relaxation mid way. Reliance is also placed upon U.P. Road Transport Corporation's case (supra); U.P. Rajya Vidyut Parishad Apprentice Welfare Association and another v. State of U.P. and others, AIR 2000 SC 2621; Dharam Pal v. State of Punjab, 2000 (3) SCT 573 and Ram Kishore Sahu v. Hindustan Aeronautics Ltd. Kanpur and another, 2004(3) SCT 844, to contend that the apprentices of all the establishments are also entitled to the same benefits and preference in appointment, as that of BBMB apprentices. Still further, it CWP No. 12204 of 2007 (8) has been pointed out that in terms of Section 22 of the Apprentices Act, 1961 (for short `the Act’), the apprentices have no right for appointment as there is no obligation on the part of the employer to employ them, and therefore, the decision of the respondents dispensing with the screening test for BBMB Apprentices and giving them weigtage during the selection process is wholly arbitrary and not sustainable. On the other hand, the learned counsel for the respondent-BBMB has vehemently controverted such stand and asserted that way back in the year 1998, it was circulated that the judgment in U.P. Transport Corporation's case (supra), be kept in view, but the effect of the said judgment was not reflected in the advertisement issued for the filling up of the posts of lineman and, therefore, to give effect to the said judgment, the BBMB apprentices were exempted from the screening test. Apart from the said exemption and five marks for the Apprenticeship, the BBMB apprentices and other candidates were subjected to the same trade test and interview and the merit list was prepared and, therefore, the selection process was fair and reasonable. At this stage, it may be noticed that in Dharam Pal's case (supra), a Division Bench of this Court has considered the judgments of the Hon’ble Supreme Court and dismissed the writ petition claiming appointment as lineman against the vacancies advertised by the Punjab State Electricity Board. The reading of the judgment leads to an inference that 754 posts of lineman were required to be filled up from the apprentices, who have undergone training with the Punjab State Electricity Board. But, to verify such facts, the record of the said case was called for. A perusal of the record shows that the petitioner Dharam Pal had also undergone apprenticeship training from Punjab State Electricity Board and was paid stipend as well, but the apprentices were subjected to written test and interview, which was objected to by the CWP No. 12204 of 2007 (9) petitioner. It is the said claim, which was declined by the Division Bench in Dharam Pal’s case holding that the holding of the written test and the criteria adopted by the respondents cannot be said to be unjustified. Reliance was placed upon an earlier order passed by the Division Bench in Gurnam Singh and others v. Punjab State Electricity Board (CWP No. 18004 of 1996 decided on July 8, 1997). Similarly, in Ram Kishore Sahu's case (supra), the petitioner had completed apprenticeship training from Hindustan Aeronautics Ltd. and was subjected to written test, but was not declared successful. The claim of the petitioner was that he was not to appear in the selection, but in the light of training imparted to him, he was to be declared selected for the post advertised. The said contention was not accepted. In U.P. Road Transport Corporation's case (supra), the Hon’ble Supreme Court considered the effect of Section 22 of the Act and held that it is not obligatory for the employer to offer employment merely on the basis, what has been stated in Section 22 of the Act. It was further held that what is required to be seen is that the nation gets the benefit of time, money and energy spent on the trainees, which would be so when they were employed in preference to non-trained direct recruits. This would also meet the legitimate expectations of the trainees. After holding so, the Court culled out the circumstances, which are required to be taken into consideration in respect of the employment of the trainees. It was held to the following effect:- “(1) Other things being equal, a trained apprentice should be given preference over direct recruits. (2) For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India v. Hargopal, CWP No. 12204 of 2007 (10) AIR 1987 SC 1227, would permit this. (3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in this concerned service rule. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. (4) The concerned training institute would maintain a list of the persons trained year wise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior.” Still further, the Hon'ble Court held that while considering the cases of the trainees for giving employment in suitable posts, the service Regulations shall be followed and the trainees would not be required to appear in written examination if any, provided by the Regulations and that the requirement of the names of the candidates being sponsored by the Employment Exchange would not be insisted upon. It was further held that the age requirement shall be relaxed as indicated in the judgment itself. In U.P. Rajya Vidyut Parishad Apprentice Welfare Association and another's case (supra), a question arose whether the condition regarding examination was applicable only to the petitioners before the Hon’ble Supreme Court. The Hon'ble Supreme Court while approving the opinion of the Full Bench of the Allahabad High Court in two cases mentioned in the said judgment held that the apprentices would have to go through the process of examination/ interview, but the apprentices are entitled to the benefits of four entries mentioned in the CWP No. 12204 of 2007 (11) earlier judgment. As a matter of fact, a Full Bench of this Court in Virender Singh v. Haryana Tourism Corporation Ltd., 2005(1) PLR 830, considering the aforesaid entries in the judgment of the Hon’ble Supreme Court, held to the following effect:- “30. A perusal of the guiding factors, as enumerated above, would show that even though by virtue of provisions contained in Section 22(i), it is not obligatory for the employer to provide a regular job to the trainee, it is by considering the facts and circumstances of the case that it was ordered that other things being equal, a trained apprentice should be given preference over direct recruits and further that a trainee would not be required to get his name sponsored by any employment exchange and still further that even the age bar, if the same may come in the way of the trainee, needs to be relaxed. These direction s came to be issued, even though there was no duty cast upon the Corporation in the said case to give regular employment to the apprentices and there was no corresponding right with the trainee to get regular job.” Keeping in view of the principles enunciated in U.P. Road Transport Corporation's case (supra); U.P. Rajya Vidyut Parishad Apprentice Welfare Association's case (supra) and Full Bench judgment of this Court in Virender Singh's case (supra), we find that though it is not obligatory for the employer to provide a regular job to the trainees, but it is equally incumbent on the employer to give preference to a trained apprentice(s) over direct recruits whenever, the CWP No. 12204 of 2007 (12) appointments are sought to be made. The age of the apprentice can be relaxed and the training institute is required to maintain a list of the persons trained year-wise and the persons trained earlier have to be treated as senior to the persons trained later. In the said judgments, it was held that though the employer is not obliged to employ the apprentices, but if the employer chooses to employ the apprentices by giving preference to the apprentices, who have undergone training from the employer, the same satisfies the requirement of Constitutional scheme of Articles 14 and 16 of the Constitution of India. It has also come on record that the apprentices have undergone training for a period of two years with BBMB and for such training they were paid stipend in terms of Rule 11 of the Apprenticeship Rules, 1992. The BBMB has thus, spent time, money and energy on the trainees to train them in the trades prevalent in the BBMB. Therefore, such training cannot be permitted to go waste. If the preference is not given to such apprentices, it will not be utilization of the man power trained by the BBMB. In fact, learned counsel for the respondent has stated that the apprentices with the BBMB were enrolled for training after their names were sponsored by the Employment Exchange. It is, thus, apparent that the apprentices were imparted training after enrolment on being sponsored by the employment exchange. Being apprentices from BBMB, the only benefit given to them is, not to subject such trainees to the screening test conducted to shortlist the large number of the applicants. The apprentices as well as the shortlisted applicants have been subjected to the trade test and interviews. In the selection process, the only benefit given to the apprentices is the weigtage of 5 marks according to the year in which apprentices have undergone training. By assigning such marks, the final seniority list has been determined and appointment made. Such process of selection in CWP No. 12204 of 2007 (13) fact, is in terms of the orders passed by the Hon’ble Supreme Court, referred to above. Most of the judgments referred to by the learned counsel for the other candidates, are the judgments referring to the power of relaxation etc., after the process of selection was started. In our view, the said judgments are not relevant in the present case. The relaxation from the screening test was given to the apprentices of BBMB in terms of the orders passed by the Hon’ble Supreme Court. In fact, had the benefit been not given, it may be the violation of the orders passed by the Hon’ble Supreme Court. Therefore, the grant of relaxation after the publication of the advertisement cannot be said to be arbitrary, which may warrant interference in the writ jurisdiction. As a matter of fact, relaxation was given after a writ petition was filed and the said writ petition is being decided by this order itself. In view of the above, we are of the opinion that the action of BBMB in granting preference to its apprentices is neither illegal nor arbitrary and in fact, in tune with the orders passed by the Hon’ble Supreme Court and thus, cannot be interfered with in the writ jurisdiction of this Court. Consequently, the Civil Writ Petition Nos. 1343 and 2015 of 2008 are dismissed, whereas the Civil Writ petition Nos. 12204 of 2007 stands disposed of as infructuous. (HEMANT GUPTA) JUDGE (MOHINDER PAL) May 8, 2008 JUDGE ds