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2013 DIGILAW 2568 (ALL)

YOGESH KUMAR GUPTA v. BHARAT HEAVY ELECTRICALS

2013-10-09

SUDHIR AGARWAL

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JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri I.M. Tripathi, learned counsel for the petitioner and perused the record. 2. Learned counsel for the petitioner contended that petitioner has completed Apprenticeship training. For regular appointment the respondent-Bharat Heavy Electricals Limited (hereinafter referred to as the “BHEL”), a Government of India undertaking, though proceeded to appoint apprentices, junior to petitioner, but petitioner was not called for interview and has not been appointed. It is contended that petitioner has a right in equity and otherwise and, therefore, non-appointment of petitioner is wholly illegal. It is further submitted that in equity or under the Rules, either way, petitioner, has a matter of right, was/is entitled to be appointed on a regular technical post in Electronic Trade having completed apprenticeship training. 3. The submission is thoroughly misconceived. I find that it is based on directions issued by Apex Court in UPSRTC Employees Federation v. UPSRTC, JT 1995 (2) SC 26, wherein the Court laid down four conditions which have to be observed by an employer in respect to apprentices who had undergone apprenticeship training: (i) Other things being equal, a trained apprentice should be given preference over direct recruits. (ii) For this, a trainee would 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 227, would permit this. (iii) 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 has undergone training would be given. (iv) The concerned training institute would maintain a list of the persons trained year wise. The persons trained earlier would be treated senior to the persons trained later. In between the trained apprentice, preference shall be given to those who are senior. 4. Based on the above directions certain apprentices challenged a process of direct recruitment by an establishment on the ground that without absorption of trained apprentices the direct recruitment from open market cannot proceed. In between the trained apprentice, preference shall be given to those who are senior. 4. Based on the above directions certain apprentices challenged a process of direct recruitment by an establishment on the ground that without absorption of trained apprentices the direct recruitment from open market cannot proceed. A Full Bench of this Court looked into this aspect in Arvind Gautam v. State of U.P. and others, 1998 (2) ESC 1394 and held that apprentices are to go through the recruitment provided in the statute and there is no automatic absorption in the vacancy which are to be filled by the direct recruitment under statute. The matter was taken in appeal and the Full Bench’s decision was affirmed in U.P. Rajay Vidyut Parishad Apprenticeship Welfare Association and another v. State of U.P. and others, 2000(5) SCC 438 . The Apex Court held that an apprentice has to undergo the procedure of examination/interview. He has to compete with open market candidates in a selection which is to be held in accordance with statute/rules. The Court, however, observed that while appearing in aforesaid selection the trained apprentices who have completed apprenticeship training may be given benefit laid down in condition No. (i) and (iv) in the judgment in UPSRTC Employees Federation (supra). 5. The issue was again considered by a Division Bench in Bhoodev Singh and others v. Chairman, U.P. S.E.B. and others, 2006(2) ADJ 500 (DB) and the question formulated by Court was, “whether petitioners, who were claiming appointments, were required to participate in written examination for appointment or not”. The Court held that a candidate cannot claim exemption from the written test if it is required for others under relevant rules. The right of apprentice trainees is limited only to the preference, other beings being equal. They cannot claim any other right, or claim different treatment from other non-apprentice candidates. 6. The above decision has been affirmed in appeal in Santosh Kumar Tripathi and others v. U.P. Power Corporation and others, JT 2009(14) SC 233. Similar view has been taken by this Court in many other cases like, Ramesh Dhar Dwivedi v. State of U.P. and others, 2006(3) ADJ 458 ; Civil Misc. 6. The above decision has been affirmed in appeal in Santosh Kumar Tripathi and others v. U.P. Power Corporation and others, JT 2009(14) SC 233. Similar view has been taken by this Court in many other cases like, Ramesh Dhar Dwivedi v. State of U.P. and others, 2006(3) ADJ 458 ; Civil Misc. Writ Petition No. 33827 of 2011, Dharampal Sharma and others v. State of U.P. and others, decided on 16.8.2011; and, Writ Petition No. 2255 (MS) of 1998, Apprentice Training Youth Welfare Association v. U.P. S.R.T.C. and others, decided on 31.8.2012. 7. Though admittedly selection has not been challenged in the petition but Sri Tripathi, learned counsel for the petitioner contended that others have been appointed without any advertisement but the same treatment has not been given to petitioner. 8. In his own words, even if some appointments have been made in flagrant violation of Article 16(1) of the Constitution, in absence of challenge to those appointments, obviously this Court cannot quash the same but illegality committed in some other matter cannot give any benefit to petitioner on the ground of parity. Two wrongs will never make one right. 9. It is well-settled that two wrongs will not make one right. (See State of Bihar and others v. Kameshwar Prasad Singh and another, AIR 2000 SC 2306 ; Union of India and another v. International Trading Co. and another, AIR 2003 SC 3983 ; Lalit Mohan Pandey v. Pooran Singh and others, AIR 2004 SC 2303 ; M/s. Anand Buttons Ltd. etc. v. State of Haryana and others, AIR 2005 SC 565 ; and Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority, AIR 2006 SC 1142 ). 10. Recently a Division Bench of this Court (of which I was also a member) in Special Appeal Shiv Raj Singh Yadav v. State of U.P. and others, 2011(10) ADJ 699 (DB), has considered this aspect in detail and in paragraph No. 22 it held as under: “22. Once it is established that the petitioner had no legal right of regularisation, merely because some irregularities and illegalities have been observed by the respondents in some other cases with respect to regularisation, that would not confer any right upon the petitioner to claim parity. The right of equality under Article 14 and 16 of the Constitution is a positive concept and not a negative one. The right of equality under Article 14 and 16 of the Constitution is a positive concept and not a negative one. (See Post Master General, Kolkata and others v. Tutu Das, 2007(5) SCC 317 ; Punjab National Bank by Chairman and another v. Astamija Dash, AIR 2008 SC 3182 ; Punjab State Electricity Board and others v. Gurmail Singh, 2008(7) SCC 245 ; M/s. Laxmi Rattan Cotton Mills Ltd. v. State of U.P. and others, 2009(1) SCC 565; Panchi Devi v. State of Rajasthan and others, 2009(2) SCC 589 ; State of Bihar v. Upendra Narayan Singh, 2009(5) SCC 65 ; State of Uttaranchal v. Alok Sharma and others, JT 2009(6) SC 463; State of Punjab and another v. Surjit Singh and others, 2009(11) SCALE 149 ; State of Madhya Pradesh and others v. Ramesh Chandra Bajpai, 2009(11) SCALE 619; Shanti Sports Club and another v. Union of India and others, 2009(11) SCALE 731 ; Ghulam Rasool Lone v. State of J & K and others, JT 2009(13) SC 422.” 11. In view of above discussion, the writ petition lacks merit. Dismissed. Interim order, if any, stands vacated.