IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Writ Petition No. 1246 of 2016 Shri Abdul Kadir Mazumdar, Son of late Basir Uddin Mazumdar, Village Uttar Krishnapur, Part-II, Post Office Uttar Krishnapur-788006, Dist-Cachar, Assam. - Versus...Petitioner 1. Oil and Natural Gas Corporation, (Represented by the Chairman and Managing Director, Oil and Natural Gas Corporation), Jeevan Bharati, Tower-II, 124, India Chawk, Connaught Place, New Delhi-110001. 2. The Director (HR), Oil and Natural Gas Corporation, Jeevan Bharati, Tower-II, 124, India Chawk, Connaught Place, New Delhi-110001. 3. The General Manager (IE/HR), Oil and Natural Gas Corporation, Tel Bhavan, Post Office-Dehradun-248001, Uttrakhand. 4. The Deputy General Manager (HR/ER) Oil and Natural Gas Corporation, Cachar Forward Base, Post Office-Silchar-788026, Assam. 5. The Senior Human Resource Executive, Oil and Natural Gas Corporation, Cachar Forward Base, Post Office-Silchar-788026, Assam....Respondents For the Petitioner For the Respondents : Mr. N. Dhar, Advocate. : Mr. G.N. Sahewalla, Sr. Advocate, Ms S. Senapati, Advocate Date of hearing & Judgment : 08.08.2017 WP(C) 1246/2016 Page 1 of 8
BEFORE HON BLE MR. JUSTICE ARUP KUMAR GOSWAMI JUDGMENT AND ORDER (ORAL) Heard Mr. N. Dhar, learned counsel for the petitioner. Also heard Mr. G.N. Sahewalla, learned senior counsel appearing for the respondents/oil and Natural Gas Corporation (ONGC). 2. On 2.6.2016, while issuing notice on the writ petition, this Court had directed that one post relating to Drilling Service under the respondents shall not be filled up until further orders. 3. ONGC had filed an application for alteration/ modification/vacation of the said interim order, which is registered as IA No. 1648/2016. 4. The writ petitioner had also filed an application for extension of the said interim order and the same is registered as IA(C) No. 268/2016. 5. Perusal of the order of this Court dated 2.8.2017 in the aforesaid IAs indicates that Mr. Sahewalla had submitted that IA No 1648/2016 may be considered as an affidavit filed in the writ petition. Such submission was not opposed by Mr. Dhar. However, he had submitted that the objection filed in IA No. 1648/2016, in that event, may be treated as affidavit-in-reply. This Court had also opined that it will be appropriate, if possible, to make an attempt to dispose of the writ petition instead of taking up the interlocutory applications. The case was accordingly directed to be listed today. 6. The learned counsel for the parties have submitted that the writ petition may be taken up for final consideration and disposal. Accordingly, the writ petition is taken up for final disposal. 7. The brief facts leading to the filing of the writ petition is that pursuant to a letter dated 5.12.2012 issued by the Senior Human Resources Executive, ONGC, Cachar Forward Base, Silchar to the petitioner for an interview for the purpose of selection as Trade Apprentice under the Apprentices Act, 1961, he had appeared for the interview and on being selected, he had successfully undergone training for Fitter Trade and accordingly, a Certificate of Apprenticeship dated 12.2.2014 was issued by the Deputy WP(C) 1246/2016 Page 2 of 8
General Manager (Mechanical), ONGC, Cachar Forward Base, Silchar. A National Apprentice Certificate was also issued by the Ministry of Labour and Employment consequent upon the petitioner having received apprenticeship training under the Apprentices Act, 1961 at ONGC from 7.2.2013 to 6.2.2014. 8. By an office order dated 13.2.2015, the competent authority of ONGC had conveyed approval for recruitment of 323 numbers of staff at A2, A1 & W1 level for the year 2015 in the Eastern Sector as per details given in the said order. 9. Consequent upon such approval being granted, an advertisement was issued on 2.7.2015 being Recruitment Advertisement No. 2/2015 wherein, amongst others, 93 posts, 25 posts and 13 posts were sought to be filled up in respect of Junior Assistant Ringman (Drilling), Junior Assistant Technician (Production) and Junior Assistant Technician (Fitting), respectively. Out of the aforesaid 93 posts, 7, 11, 25 and 50 posts were earmarked for Scheduled Caste (SC), Scheduled Tribe (ST), Other Backward Classes (OBC) and UR, respectively. In the office order dated 13.2.2015, 20 posts were shown to be for Silchar, 3 for Jorhat, 70 posts for Assam. For Junior Assistant Technician (Production), 25 posts were notified with reservation of 2, 3, 7 and 13 posts for SC, ST, OBC and UR, respectively. For Junior Assistant Technician (Fitting), 13 posts were notified with reservation of 1, 1, 3 and 8 for SC, ST, OBC and UR, respectively. 10. It is averred in the writ petition that the petitioner had submitted his candidature for the post of Junior Assistant Rigman (Drilling), Junior Assistant Technician (Production) and Junior Assistant Technician (Fitting). It is pleaded that while the written test was conducted smoothly at Silchar, unemployed youths of Barak Valley were not allowed to appear at Nazira Centre and that there were malpractices at the said centre. The Bengali Students and Youth Forum, Hailakandi and unemployed youths of Barak Valley had submitted representations in this regard. 11. Mr. Dhar has submitted that as the petitioner had successfully completed apprenticeship training with ONGC, the respondent authorities are liable to be directed to give suitable employment to the petitioner as the respondents had spent considerable time, money and energy on the trainees like the petitioner. He submits that the petitioner had a legitimate expectation to be appointed because of his successful completion of training. He also submits that compelling the petitioner to compete with untrained candidates is wholly unjustified. He has emphasized that WP(C) 1246/2016 Page 3 of 8
apprentice trainees, who had successfully completed apprenticeship training, should be judged separately and not along with untrained candidates. In support of his submission, he has placed reliance in the cases of (i) UP State Road Transport Corporation & anr., vs. UP Parivahan Nigam Shishukhs Berozgar Sangh & Ors., reported in (1995) 2 SCC 1 and (ii) Public Service Commission Uttaranchal Vs. Jagdish Chandra Singh Bora & anr., reported in (2014) 8 SCC 644. He has further highlighted that the petitioner had secured 74% marks while obtaining Diploma from Industrial Training Institute (ITI) although eligibility requirement was only 60% marks. 12. By relying on the averments made in IA No. 1648/2016, Mr. Sahewalla has submitted that the petitioner had appeared in a common written test held on 20.9.2015. He has submitted that the petitioner had scored 30.83% marks which were far below the minimum cut-off marks for the three categories for which the petitioner had submitted his applications and as such he could not qualify for the interview. The minimum cut-off mark in written test was fixed at 50% for General and OBC candidates, 40% for SC/ST and 35% for persons with disability. He, however, has submitted that, subsequently, the cut-off mark in the written test was lowered to 45 and 35 for General/OBC and SC/ST/PWD candidates, respectively. By placing before the Court the contents of the Recruitment Advertisement No. 2/2015, he has contended that a candidate was required to qualify in each of the stages of the selection process and unless one qualified in a particular stage, he was not required to be called for the next stage. He has also placed reliance in the case of Haryana Power Generation Corporation Limited & Ors. vs. Harkesh Chand & ors., reported in (2013) 2 SCC 29. 13. On a specific query of the Court, Mr. Sahewalla has submitted that the cut-off mark was initially fixed for the written test on 27.5.2015 and, subsequently, the same was lowered on 4.12.2015. He has also submitted that the result of the written test was displayed in the website of the ONGC on 1.1.2016 and the oral test was conducted from 28.1.2016 to 8.2.2016 and final results of the selection process was declared on 9.2.2016. While submitting that the eligibility of the petitioner to appear pursuant to the aforesaid recruitment process is not in doubt, he has sought to impress upon the Court that getting 74% marks in the ITI examination is not decisive for selection and appointment as it is only an essential qualification to enable him to participate in the selection process and that the performance of a candidate in the various stages of the selection process will only determine the prospects of his selection and appointment. He WP(C) 1246/2016 Page 4 of 8
has also relied upon the judgment rendered in UP State Road Transport Corporation (supra) to contend that a trainee apprentice is entitled only to preference if all other things are equal. In terms of Clause 6(5) of the Modified Recruitment and Promotion Regulations, 1980, for short the Regulations, the Selection Committee has to adjudge the suitability of a candidate on the basis of the written examination, practical test or interview or any combination of these. However, in terms of the said provision, the written examination is mandatory for all induction level posts of unionized and at E1 level of Executive Cadre. When the petitioner had failed to secure the cut-off mark in the written test, there was no question of the petitioner being called for the interview. As he could not come out successful in the selection process, the question of his appointment also does not arise, he submits. 14. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 15. Section 2(aa) of the Apprentices Act, 1961 defines apprentice as a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship. Section 2(aaa) defines apprenticeship training as a course of training in any industry or establishment undergone in pursuance of a contract of apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices. Section 18 clearly states that apprentices are trainees and not workers. 16. In UP State Electricity Board vs. Shiv Mohan Singh & anr., reported in (2004) 8 SCC 402, which is referred to in Haryana Power Generation Corporation Limited (supra), a three-judge Bench of the Supreme Court laid down that Apprentices Act, 1961 is a complete code in itself and it lays down the conditions of the apprentices, their tenure, their terms and conditions, their obligations as well as the obligations of the employer. It was held that the nature and character of the apprentice is that of a trainee only and on the expiry of the training there is no corresponding obligation on the part of the employer to employ him and that it is only if the terms of the contract of the apprenticeship lay down a condition that on successful completion of an apprenticeship training, an employer will offer him an employment then it is obligatory on the part of the employer to do so. If there is no such condition stipulated in the apprenticeship contract, then the employer cannot be compelled to offer employment to such apprentice. In Haryana Power Generation Corporation Limited (supra), the Supreme WP(C) 1246/2016 Page 5 of 8
Court reiterated that an apprentice does not have a statutory right to claim an appointment and the employer is not under any statutory obligation to give him employment. 17. In Paragraph 12 of UP State Road Transport Corporation (supra), the Supreme Court had laid down as follows: 12. In the background of what has been noted above, we state that the following would be kept in mind while dealing with the claim of trainees to get employment after successful completion of their training:- (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, 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 the 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. 18. The expression other things being equal, as appearing in UP State Road Transport Corporation (supra), was considered by the Supreme Court in Public Service Commission Uttaranchal (supra). The Supreme Court observed that only natural meaning of the aforesaid phrase is that all the candidates must have been subjected to the same selection process and that their inter-se merit is determined on the same criteria. It was further observed that in UP State Road Transport Corporation (supra), direction was issued only to give preference to the trained apprentices over direct recruits and that no direction was given in the said judgment as to how the preference is to be given leaving it entirely to the discretion of the Government to make necessary provision in the statutory Rules. In the aforesaid case, no preference was given to the trained apprentices in the selection process which was governed by a set of Rules framed in 2001 and such being the position, the Supreme Court had held that no WP(C) 1246/2016 Page 6 of 8
vested right had accrued to the trained candidates under the 2001 Rules to the extra 10 marks which were to be added to the trained apprentices under a set of Rules which was framed in the year 2003. 19. The petitioner had voluntarily participated in the selection process initiated vide Recruitment Advertisement No. 2/2015. The selection process is enumerated at Section 2 of the Recruitment Advertisement No. 2/2015. Clause 2.1 deals with selection methodology. It visualizes written test to be the first test in the selection process to be followed by other tests, such as physical standard test/driving test/physical efficiency test/stenography efficiency test/typing efficiency test (whenever applicable)/personal interview. Clause 2.1(e) provides that the candidates have to qualify at each stage separately and in aggregate. Clause 2.1(f) provides that the candidates who qualify in the written test shall be shortlisted based on the performance of the written examination and called for other tests prior to personal interview as a part of the selection process. 20. It will be apposite to quote Paragraph 2 of IA No. 1648/2016. The same reads as follows: 2. That the applicants state that the minimum pass marks for all disciplines for the written test is at 50% for General/OBC candidates, 40% for SC/ST candidates and 35% for PWD i.e. persons with disability candidates. However, the minimum cut-off mark is fixed for the written test which is obtained by taking 5 times of the vacancy and the marks obtained by the candidates who obtain lowest mark after taking 5 times of vacancy position of the written test and on that basis, the minimum cut-off mark for general candidates is 50% for Junior Assistant Rigman (Drilling), 50.83% for Junior Assistant Technician (Fitting) and 60.83% for Junior Assistant Technician (Production). However, the petitioner having scored only 30.83% marks in the written test, he could not even obtain pass marks, whereas, the minimum cut-off marks are higher for pass marks in the 3 categories and as such, he could not qualify for the interview. Be it mentioned herein, that ONGC grants preference to a trained apprentice when other things are equal. However, in the instant case, the petitioner could not qualify in the written test having failed to come within the category of minimum cut-off mark and even failed to obtain pass marks and WP(C) 1246/2016 Page 7 of 8
as such, he has no right to get a call for the interview and accordingly, he was not called for the same. 21. Naturally, to determine whether a candidate has qualified in the written test or not, a cut-off mark had to be fixed and in the instant case, such cut-off mark was fixed, as noted earlier. The petitioner did not get the minimum cut-off marks in each of the posts for which he had submitted his application. It is not the case of the petitioner that his contract of apprenticeship contains any stipulation that the respondents would offer him employment after completion of training. 22. In the instant case, the admitted position is that the petitioner has not qualified in the written test and therefore, he could not be put at par with other candidates who had cleared the written test and proceeded further in the interview process. If the petitioner was at par with other candidates, then the question of preference may have arisen. This situation did not arise in the present fact situation as the petitioner had failed to clear the written test and had not progressed further in the selection process. However, it is noticed that in the Regulations there is no provision for giving of preference to apprentices. Having regard to the decision in UP State Road Transport Corporation (supra), the respondents may take appropriate steps in this direction. 23. In view of the above discussion, I am of the considered opinion that no direction can be given for appointment of the petitioner on the basis that he had successfully completed apprenticeship training. 24. Accordingly, the writ petition is dismissed with the observations as indicated above. No cost. Madhu JUDGE WP(C) 1246/2016 Page 8 of 8