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2021 DIGILAW 378 (GAU)

Abinash Kalita v. Indian Oil Corporation Ltd.

2021-04-27

KALYAN RAI SURANA

body2021
ORDER : Kalyan Rai Surana, J. 1. Heard Mr. K.N. Choudhury, learned Senior counsel assisted by Mr. R.M. Deka, learned counsel for the petitioner and Mr. N. Deka, learned Standing counsel for the respondents. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner is praying for setting aside the impugned e-mail dated 02.01.2019 issued by the respondent no. 3 to inform the petitioner that he was not eligible for consideration for the post of Junior Engineering Assistant-IV (Electrical); for a direction to the respondents to recall/cancel/rescind and/or forbear from giving effect to the said e-mail; and for a direction of the respondents to allow the petitioner to participate in the selection process. 3. The case of the petitioner, in brief, is that after successfully passing out the High School Leaving Certificate Examination, 2010 (HSLC for short), conducted by Board of Secondary Education, Assam, he had completed training at Industrial Training Institute, Haflong (ITI for short) from August, 2010 to July, 2012 and passed the prescribed Trade Test in the Trade of Electrician held in the month of July, 2012 and in that regard, the National Council for vocational training had issued a National Trade Certificate to the petitioner. Thereafter, the petitioner had undergone (one) year apprenticeship training as Electrician under Apprenticeship Act, 1961 at the Guwahati Refinery of respondent no. 1 from 19.11.2013 to 18.11.2014. Thereafter, the petitioner had passed out All India Trade Test conducted in the month of April, 2015 by securing 377 out of 570 marks and he was awarded with a National Apprenticeship Certificate issued by the National Council for Vocational Training. Thereafter, in the month of August, 2018, the petitioner had obtained 3 (three) Year Diploma in Engineering/Technology from the State Council for Technical Education, Assam. 4. The respondent no. 1 had issued an advertisement dated 21.12.2018, amongst others, for filling up 5 (five) posts of Junior Engineering Assistant-IV (Electrical) from amongst passed out apprentices of Guwahati Refinery. Out of 5 posts advertised, 3 posts were for unreserved category, one post was reserved for SC category and one post was reserved for ST category. The petitioner had applied under unreserved category. Out of 5 posts advertised, 3 posts were for unreserved category, one post was reserved for SC category and one post was reserved for ST category. The petitioner had applied under unreserved category. As per the advertisement, qualification criteria for the said post was as follows- "3 years Diploma in Electrical Engineering from recognized Institute/University with minimum of 50% marks in aggregate for General & OBC candidates & 45% in case of SC/ST/candidates against reserved positions and experience criteria for candidates who had completed apprenticeship training at Guwahati Refinery in the trade/discipline mentioned against the said post was as follows - "(a) Technician Apprentice-Electrical". On 02.01.2019, the petitioner had received an e-mail from the respondent no. 3 to inform him that he was not eligible for consideration for the post in question as per advertisement dated 21.12.2018 as he had not undergone apprenticeship training in the Trade/Discipline of Technician Apprentice -Electrical after acquiring Diploma in Electrical Engineering. Thus, the aggrieved petitioner has filed this writ petition. 5. The learned senior counsel for the petitioner has referred to the provisions of Section 2(e), 2(j), 2(pp), 2(q), 3 of the Apprentices Act, 1961 and Schedule-IA of the Apprenticeship Rules, 1992 and it was submitted that the petitioner was duly qualified to participate in the selection process and that by the impugned e-mail, which was at the ipse dixit of the respondent no. 3, the respondents had ousted the petitioner from participating in the selection process. It is submitted that as per the employment advertisement, the only requirement was that the candidate must have qualification of "3 Year Diploma in Electrical Engineering from recognized Institute/University with minimum of 50% marks in aggregate for General & OBC candidates & 45% in case of SC/ST/candidates against reserved positions." Moreover, the experience criteria for candidates who had completed apprenticeship framing at Guwahati Refinery in the trade/discipline mentioned against the said post was "(a) Technician Apprentice -Electrical". Accordingly, it is submitted that it did not matter whether the Diploma was obtained before or after successfully completing the apprenticeship training. It is submitted that the petitioner is covered by the provisions of Section 2(pp) of the Apprentices Act, 1961. Accordingly, it is submitted that it did not matter whether the Diploma was obtained before or after successfully completing the apprenticeship training. It is submitted that the petitioner is covered by the provisions of Section 2(pp) of the Apprentices Act, 1961. It is further submitted that if it is found that Schedule-IA of the said Act or any provisions of the Apprenticeship Rules, 1992 are found to be contrary to the provisions of the Apprentices Act, 1961, the Act would prevail and that the Schedule or the Rules cannot wipe out the statutory provisions of the Act in effect and in spirit. In support of the said submission, the learned senior counsel for the petitioner had placed reliance on the case of Jagdish Prasad Vs. State of Rajasthan, reported in (2011) 7 SCC 789 (para-26). It is submitted that by virtue of interim order dated 04.01.2019, not only this Court had allowed the petitioner to participate in the selection process, but this Court had also directed that one post of Junior Engineering Assistant-IV (Electrical) may not be filled up without the leave of the Court. 6. Per contra, the learned standing counsel for the respondents has submitted that "technician apprentice" is equivalent to "graduate apprentice" and is covered by the provisions of Section 2(j)of the Apprentices Act, 1961 and as the petitioner had undergone "trade apprentice", his case was covered by the provisions of Section 2(q) of the said Act. Accordingly, it is submitted that the petitioner was not qualified for selection and appointment to the post of Junior Engineering Assistant-IV (Electrical), which was not as per the ipse dixit of the respondents and respondent no. 3 in particular. 7. Thus, the only issue which is required to be determined is whether the petitioner was holding the requisite qualification and eligibility criteria, required for appointment to the post of Junior Engineering Assistant-IV (Electrical). 8. It is seen that three types of apprentices is envisaged under the Apprentices Act, 1961, viz., (i) graduate or technician apprentice [Section 2(j)], (ii) technician (vocational) apprentice [Section 2(pp)]; and (iii) trade apprentice [Section 2(q)]. 8. It is seen that three types of apprentices is envisaged under the Apprentices Act, 1961, viz., (i) graduate or technician apprentice [Section 2(j)], (ii) technician (vocational) apprentice [Section 2(pp)]; and (iii) trade apprentice [Section 2(q)]. The relevant provisions are extracted below:- 2(j) "graduate or technician apprentice" means an apprentice who holds, or is undergoing training in order that he may hold a degree or diploma in engineering or non-engineering or technology or equivalent qualification granted by any institution recognised by the Government and undergoes apprenticeship training in any designated trade. 2(pp) "Technician (vocational) apprentice" means an apprentice who holds or is undergoing training in order that he may hold a certificate in vocational course involving two years of study after the completion of the secondary stage of school education recognised by the All-India Council and undergoes apprenticeship training in any designated trade. 2(q) "trade apprentice" means an apprentice who undergoes apprenticeship training in any designated trade. 9. It would also be relevant to reproduce the relevant provisions of Rule 2 of the Apprenticeship Rules, 1992 herein below:- (1-A) "Degree apprentice" means an apprentice undergoing a course in order that he may hold a degree granted by any recognised institution or university and undergoing apprenticeship training as an integrated component of the curricula. (2) "Diploma Holder" means a person who holds a diploma in engineering or technology or equivalent qualification granted by a State Board of Technical Education, or recognised by the State Government concerned or the Central Government (3) "Engineering Graduate" means a person, who- (a) holds a degree in engineering or technology granted by- (i) a statutory University, or (ii) by an institution empowered to grant such degree by an Act of Parliament; (b) has passed the Graduateship examination of professional bodies recognised by the Central Government as equivalent to degree; or (c) holds the qualifications which exempt him from Section A and B examinations of the Institution of Engineers (India). (3-A) "Fresher apprentice" means a non-graduate apprentice, who has not undergone any institutional training or skill training, before taking up on the job training or practical training under the Apprentices Act, 1961. (4) "Vocational certificate holder" means a person who holds a certificate in a Vocational Course, involving two years of study after the completion of secondary stage of school education, recognised by the All India Council for Technical Education. (4) "Vocational certificate holder" means a person who holds a certificate in a Vocational Course, involving two years of study after the completion of secondary stage of school education, recognised by the All India Council for Technical Education. (4-A) "National or State Certificate holder" means a person, who holds a certificate issued by National Council for Vocational Training or State Council for Vocational Training or any authority recognised by Central Government for awarding such certificates or any other successor entity for vocational training of one year and more. 10. The Schedule-IA of the Apprentices Act, 1961 is extracted below:- Schedule IA [See rule 3(2)] Category of Apprentices Minimum Educational Qualification 1. Graduate apprentices (a) A degree in engineering or technology granted by a statutory University. (b) A degree in engineering or technology granted by an institution empowered to grant such degrees by an Act of Parliament. (c) Graduate examination of professional bodies recognised by the Central Government as equivalent to a degree. (d) A sandwich course student who is undergoing training in order that he may hold a degree in engineering or technology as mentioned at (a) and (b) above. 2. Technician apprentices (a) A diploma in engineering or technology granted by a State Council or Board of Technical Education established by a State Government. (b) A diploma in engineering or technology granted by a University. (c) A diploma in engineering or technology granted by an institute recognised by the State Government or Central Government as equivalent to (a) and (b) above. (d) A sandwich course student who is undergoing training in order that he may hold a diploma mentioned in (a), (b) and (c) above. 3. Technician (Vocational) (a) A certificate in vocational course involving Apprentices two years of study after the completion of the secondary stage of school education recognised by the All India Council for Technical Education. (b) A sandwich course student who is undergoing training in order that he may hold a certificate mentioned in (a) above. 11. It is not in dispute that the petitioner had passed HSLC in the year 2010. Thereafter he had completed training at m, Haflong from August, 2010 to July, 2012 and had passed the prescribed Trade Test in the Trade of Electrician held in the month of July, 2012 and he was awarded a National Trade Certificate by the National Council for Vocational Training. Thereafter he had completed training at m, Haflong from August, 2010 to July, 2012 and had passed the prescribed Trade Test in the Trade of Electrician held in the month of July, 2012 and he was awarded a National Trade Certificate by the National Council for Vocational Training. Thereafter, the petitioner had undergone 1 (one) year apprenticeship training as Electrician under Apprenticeship Act, 1961 at Guwahati Refinery from 19.11.2013 to 18.11.2014. Thereafter, the petitioner had passed out All India Trade Test conducted in the month of April, 2015 and he was awarded with a National Apprenticeship Certificate issued by the National Council for Vocational Training. Thereafter, in the month of August, 2018, the petitioner had obtained 3 (three) Year Diploma in Engineering/Technology from the State Council for Technical Education, Assam. 12. As per Rule 2(4) of the Apprenticeship Rules, 1992, i.e. "Vocational certificate holder", means a person who holds a certificate in a Vocational Course, involving two years of study after the completion of secondary stage of school education, recognized by the All India Council for Technical Education. Therefore, with the passing of the prescribed Trade Test in the Trade of Electrician held in the month of July, 2012 after undergoing 2 years' training from August, 2010 to July, 2012, the petitioner is found to be squarely covered by the definition of Section 2 (pp) of the Apprentices Act, 1961 read with sl. no. 3 of Schedule-IA of the Apprenticeship Rules, 1992. The petitioner had undergone apprenticeship training from 19.11.2013 to 18.11.2014 in Guwahati Refinery in the designated trade of "Electrician" and was awarded with a National Apprenticeship Certificate having passed All India Trade Test in the month of April, 2015. The 3 Year Diploma in Engineering/Technology was obtained by the petitioner from the State Council for Technical Education, Assam in the month of August, 2018. The petitioner did not undergo any training in order that he may hold the 3 Year Diploma as envisaged vide Section 2(j) of the Apprentices Act, 1961. Therefore, it is seen that without holding the requisite qualification as prescribed under sl. no. 2 of Schedule-1 A, the petitioner was not qualified to be a "technician apprentice or graduate apprentice" as envisaged under Section 20 of the Apprentices Act, 1961. 13. Therefore, it is seen that without holding the requisite qualification as prescribed under sl. no. 2 of Schedule-1 A, the petitioner was not qualified to be a "technician apprentice or graduate apprentice" as envisaged under Section 20 of the Apprentices Act, 1961. 13. There appears to be nothing on record to show that any provisions of the Apprenticeship Act, 1992 or any provisions contained in Schedule-1 A is inconsistent with any of the provisions of the Apprentices Act, 1961. Therefore, the case of Jagdish Prasad (supra) does not help the petitioner in any manner. 14. Thus, no infirmity is found with the impugned e-mail dated 02.01.2019, thereby informing the petitioner that he was not eligible for the post of Junior Engineering Assistant-IV (Electrical) as per advertisement dated 21.12.2018. Therefore, this writ petition fails and the same is dismissed, however, without any cost. It is needless to mention that the interim order passed on 04.01.2019 would stand merged with this order.