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2011 DIGILAW 140 (JHR)

Pramod Kumar v. Bharat Coking Coal Ltd.

2011-03-01

R.R.PRASAD

body2011
Order The writ petition bearing W.P.(S) No. 5585 of 2007 was filed on behalf of the petitioners for issuance of a writ in the nature of Mandamus directing the respondents to appoint the petitioners on the post of Junior Overman and Mining Sirdar which posts had been advertised to be filled up vide Advertisement No.1762(NEE) dated 6.1 .2007. 2. As per the case of the petitioners, they• having acquired diploma in Mining and Mines were appointed as Trainee Apprentice under the Apprentices Act, 1961 in different Collieries of B.C.C.L. After completion of the training and on holding a valid First Aid Certificate as well as Gas Testing Certificate, they were granted Overman Certificate of competency under the Coal Mines Regulation, 1957. After several years of having Overman Certificate of competency, an advertisement was made in the year 2007 calling for the applications for selection on the post of Junior. Overman and Mining Sirdar whereby maximum age was prescribed as 30 years. As there was no provision for relaxation of age for the trained apprentices for the trained apprentices were exempted from appearing in the written test, the petitioners made representation in the light of a decision rendered in a case of U.P.S.R.T.C vs. U.P. Parivahan Nigam Shishukhs Berojgar Sangh [1995 S.C.C. (L&S) 387] praying therein to exempt them from taking written test and also to relax age limit. When no decision was taken the petitioners moved this Court for the relief stated above. 3. In the said writ application, a counter affidavit was filed on behalf of the respondents wherein it was stated that as per the provision of the Coal Mines Regulation, 1957, Diploma Holders in Mining are required to take practical training for a period of one year in any Underground Mines for appearing in Overmanship Certificate of Competency Examination conducted by the Director General of Mines Safety, Dhanbad but the petitioners- have no requisite qualification and that posts advertised have already been filled up whereas the petitioners had even not submitted their applications in terms of the advertisement. 4. Considering the case of the parties, it was held in the order dated 4.9.2008 that the petitioners do not have valid Overmanship Certificate of Competency and that they never applied for the posts which were advertised which got filled up and hence, the writ application was ,dismissed. 5. As against that, L.P.A. bearing no. 4. Considering the case of the parties, it was held in the order dated 4.9.2008 that the petitioners do not have valid Overmanship Certificate of Competency and that they never applied for the posts which were advertised which got filled up and hence, the writ application was ,dismissed. 5. As against that, L.P.A. bearing no. 391 of 2008 was preferred wherein plea was taken that the Single Judge committed error of record by holding that the petitioners do not hold valid Overmanship Certificate. The Court did hold that if it is so, the petitioners should have moved for review. That is how this review application has been filed. 6. Learned counsel appearing for the petitioners submits that all the petitioners do have valid Overmanship Certificates and those certificates were granted only when the petitioners underwent training and acquired the certificates of First Aid as well as Gas Testing. But this Court vide order dated 4.9.2008 recorded the finding otherwise and therefore, if that finding is not altered/reviewed, great prejudice would be caused to the petitioners as there would always cloud over the Overmanship Certificate of Competency of the petitioners. Those Overmanshjp Certificates and also valid First Aid and Gas Testing Certificates annexed with this application would go to show that the Overmanship Certificate had validly been issued by the authority. 7. It was further pointed out that as there was no stipulation regarding relaxation of the age as stipulated under the advertisement, the petitioners made representation before the authority in the light of Supreme Court decision, referred to above, for relaxation• of the age and for exempting them from appearing in the examination but the authority did not pass any order in this respect. Under that situation, the petitioners had moved to this Court but by the time the order was passed, the posts were filled up but if that finding is not altered, the petitioners would not be entitled to. be appointed if the next vacancies are advertised. Therefore, the finding to the effect that the petitioners do not have requisite Overmanship Certificate warrants to be reviewed. 8. be appointed if the next vacancies are advertised. Therefore, the finding to the effect that the petitioners do not have requisite Overmanship Certificate warrants to be reviewed. 8. As against that, learned counsel appearing for the B.C.C.L. submits that it is not that only on the aforesaid ground the writ petition was dismissed but the writ petition was dismissed also on the other ground that the petitioners had never applied for the posts and that the posts had already been filled up. 9. Having heard learned counsel appearing for the parties, I do find that being persuaded with the statement made in the counter affidavit filed on behalf of B.C.C.L. that though the petitioners do have Overmanship Certificate of Competency but they have not undergone one year practical training in any underground mine, the certificate could not be considered to be requisite qualification for being appointed on the post of Overman, when they do not have First Aid and Gas Testing Certificate, the order was passed that the petitioners do not have requisite Overmanship Certificate of Competency as the First Aid and Gas Testing Certificate had not been annexed, though in reply to the counter affidavit, statement had been made that they do possess First Aid and Gas Testing Certificate. Those certificates have now been annexed with this review application. Certificates of competency clearly show that the petitioners have undergone practical training in different mines. That apart, in terms of Clause 15 of Coal Mines Regulation, 1957, one cannot be allowed to be admitted as a candidate in the examination held by the Board for grant of Overman and Sirdar Certificate. Meaning thereby that having First' Aid and Gas Testing Certificates are the prerequisite of taking examination for grant of Overmanship Certificate. The fact relating to petitioners having Overman ship of Competency has also been accepted in the counter affidavit filed on behalf of the B.C.C.L. Thus, it is quite apparent that there was error in recording the finding that the petitioners do not have requisite Overmanship Certificate of Competency. Hence, the finding given in the writ application can certainly be said to be error apparent and hence, it is set aside. Still the petitioners are not entitled to relief claimed in the writ application as the petitioners had not applied, pursuant to the advertisement issued relating to appointment on the post of Junior Overman and Mining Sirdar. Hence, the finding given in the writ application can certainly be said to be error apparent and hence, it is set aside. Still the petitioners are not entitled to relief claimed in the writ application as the petitioners had not applied, pursuant to the advertisement issued relating to appointment on the post of Junior Overman and Mining Sirdar. This fact has even been admitted by the petitioners in the writ application. That apart, the posts had already been filled up. Therefore, in spite of holding that the petitioners do have requisite Overmanship Certificate of Competency, they are not entitled to relief claimed in the writ application. 10. However, before parting with the order it would be worth while to mention here that the Hon'ble Supreme Court in a case of U.P.S.R.T.C. VS. U.P. Parivahan Nigam Shishukhs Berojgar Sangh (supra) after taking into account that the scheme of apprentice training had been introduced to promote chances of employment of educated unemployed persons, and if employers would not provide employment to the qualified apprentices, the same would amount to destruction of developed human resources did hold 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 vs. N. Hargopal 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 service rule concerned. 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 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 triad apprentices, preference shall be given to those who are senior." 11. It is needless to say that guidelines laid down by the Hon'ble Supreme Court would be adhered to in the matter of appointment of apprentice trainees to the post of Junior Overman/Mining Sirdar. 12. Accordingly, the review application is disposed of.