Akhil Antony S/O K.V. Antony and others v Fertilizers and Chemicals Travancore Limited and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 13TH DAY OF JULY 2018 / 22ND ASHADHA, 1940** **WP(C).No. 14019 of 2018** ## **PETITIONER(S)** **1 AKHIL ANTONY S/O. K.V. ANTONY, AGED 2, KANAPILLY HOUSE, KONGARPILLY P.O., ERNAKULAM - 683 525.** ## **2 JEFFRIN JOSEPH** **S/O. N.D. JOSEPH, AGED 24, NADAKKAPARAMBIL HOUSE, ELOOR, UDYOGAMANDAL P.O., ERNAKULAM - 683 501.** ## **3 SANEESH BABU K.S.** **S/O. SURESH BABU K.K. AGED 25, KOOTTUNGAL HOUSE, ELOOR NORTH, UDYOGAMANDAL P.O., ERNAKULAM - 683 501.** ## **4 EMIL FELIX** **S/O. FELIX C.R., AGED 24, CHERIAKUMORATH HOUSE, MAMANGALAM, PALARIVATTOM P.O., KOCHI - 682 025.** ## **5 VINIL DEVASSYKUTTY** **S/O. DEVASSYKUTTY P.A., AGED 25, PUTHENPURAKKAL, MANIKYAMANGALAM P.O., ERNAKULAM - 683 574.** **6 ARSON RAPHEAL K.M.** **S/O. MATHEW K.R., AGED 23, KUTTATTIL HOUSE, PACHALAM P.O., KOCHI - 682 012.** **7 HARIKRISHNAN S. S/O. SASIDHARAN UNNITHAN R., AGED 23, QUARTER NO.OD6, FACT TOWNSHIP, UDYOGAMANDAL P.O., ERNAKULAM - 683 501.** **8 ABHISHEK P.R. S/O. RAJEEV P.R., AGED 24, PALLATH PARAMBIL HOUSE, KUMBALANGI P.O., KOCHI - 682 007.** ## **9 DANNY XAVIER** **S/O. XAVI K.J., AGED 26, KOCHUVEEDU, ELOOR EAST, UDYOGAMANDAL P.O., ERNAKULAM - 683 501.** **...2** **-2-** ## **WP(C).No. 14019 of 2018** **10 SHAHID NAZAR S/O. M.P. NAZAR, AGED 26, MELATH HOUSE, PALLICHAN PARAMBIL, MUPPATHADAM P.O., ERNAKULAM - 683 110.** **11 JISHNU K.R.** **S/O. RAVEENDRAN K.R., AGED 25, KAKKARA HOUSE, MUPPATHADAM P.O., ERNAKULAM - 683 110.** ## **12 JACKU RUBY JACOB** **S/O. RUBY JACOB, AGED 23, VALIYA KANJIRATHINGAL, THELLAKAM P.O., KOTTAYAM - 686 016.** ## **13 SARATH R. CHANDRAN** **S/O. RAMACHANDRAN, AGED 25, EDUMPANAL HOUSE, CHEMBILAVU P.O., KOTTAYAM - 686 584.** **BY ADVS.DR.V.N.SANKARJEE** **SRI.V.N.MADHUSUDANAN SRI.M.K.SIDHAN SMT.R.UDAYA JYOTHI SRI.M.M.VINOD** **SMT.M.SUSEELA** ## **RESPONDENT(S):** **1. FERTILIZERS AND CHEMICALS TRANVANCORE LIMITED REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, UDYOGAMANDAL, ERNAKULAM - 683 501.** **2. THE BOARD OF DIRECTORS FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, UDYOGAMANDAL, ERNAKULAM - 683 501.** **3. THE CHIEF GENERAL MANAGER (HR) CORPORATE OFFICE, FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM - 683 501.** **4. GENERAL MANAGER (ADMINISTRATION) FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, HEAD OFFICE, UDYOGAMANDAL, ERNAKULAM - 683 501.** **...3** **WP(C).No. 14019 of 2018** **-3-** **5. THE CHIEF PERSONNEL MANAGER FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, COCHIN DIVISION, UDYOGAMANDAL DIVISION, UDYOGAMANDAL, ERNAKULAM - 683 501.** **6. THE CHIEF PERSONNEL MANAGER FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, COCHIN DIVISION, AMBALAMEDU P.O., ERNAKULAM - 682 303.** **7. THE DEPUTY GENERAL MANAGER (HR) FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGAMANDAL, ERNAKULAM - 683 501.** **8. THE DEPUTY GENERAL MANAGER FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, PETRO CHEMICAL DIVISION, UDYOGAMANDAL, ERNAKULAM - 683 501.** **9. THE TRAINING MANAGER THE FACT TRAINING CENTRE, UDYOGAMANDAL, ERNAKULAM - 683 501.** **R1-R9 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1-R9 BY ADV. SRI.P.GOPINATH R1-R9 BY ADV. SRI.K.JOHN MATHAI R1-R9 BY ADV. SRI.JOSON MANAVALAN R1-R9 BY ADV. SRI.KURYAN THOMAS R1-R9 BY ADV. SRI.PAULOSE C. ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ALONG WITH W.P.(C) NO.14273/2018 ON 13-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 14019 of 2018 (B)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE DEGREE CERTIFICATE OF THE 1ST PETITIONER DATED 28.11.2014** **EXHIBIT P1(A). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 2ND PETITIONER DATED 15.12.2014** **EXHIBIT P1(B). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 3RD PETITIONER DATED 1.9.2015** **EXHIBIT P1 (C). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 4TH PETITIONER DATED 20.3.2015** **EXHIBIT P1 (D). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 5TH PETITIONER DATED 10.2.2014** **EXHIBIT P1 (E). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 6TH PETITIONER DATED 20.3.2016** **EXHIBIT P1 (F). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 7TH PETITIONER DATED 28.6.2016 EXHIBIT P1 (G). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 8TH PETITIONER DATED 9.9.2015 EXHIBIT P1 (H). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 9TH PETITIONER DATED 28.6.2016 EXHIBIT P1 (I). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 10TH PETITIONER DATED 2.8.2014** **EXHIBIT P1 (J). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 11TH PETITIONER DATED 20.1.2015 EXHIBIT P1 (K). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 12TH PETITIONER DATED 3.12.2015 EXHIBIT P1 (L). TRUE COPY OF THE DEGREE CERTIFICATE OF THE 13TH PETITIONER DATED 6.1.2015** **EXHIBIT P2. TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 1ST PETITIONER DATED 31.10.2016** **EXHIBIT P2 (A). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 2ND PETITIONER DATED 28.10.2016** **EXHIBIT P2 (B). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 3RD PETITIONER DATED 2.12.2016 EXHIBIT P2 (C). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 4TH PETITIONER DATED 30.11.2016** **..2** **WP(C).No. 14019 of 2018** **-2-** **EXHIBIT P2 (D). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 5TH PETITIONER DATED 31.10.2016 EXHIBIT P2 (E). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 6TH PETITIONER DATED 29.10.2016 EXHIBIT P2 (F). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 7TH PETITIONER DATED 27.10.2016 EXHIBIT P2 (G). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 8TH PETITIONER DATED 18.10.2016** **EXHIBIT P2 (H). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 9TH PETITIONER DATED 27.10.2016 EXHIBIT P2 (I). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 10TH PETITIONER DATED 27.10.2016 EXHIBIT P2 (J). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 11TH PETITIONER DATED 18.10.2016 EXHIBIT P2 (K). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 12TH PETITIONER DATED 25.10.2016** **EXHIBIT P2 (L). TRUE COPY OF THE APPRENTICESHIP CERTIFICATE OF THE 13TH PETITIONER DATED 26.10.2016** - **EXHIBIT P3. TRUE COPY OF THE CIRCULAR DATED 15.3.1996 OF THE GOVERNMENT OF INDIA EXHIBIT P4. TRUE COPY OF THE JUDGMENT DATED 2.3.1998 IN O.P. NO.16099/1997 OF THIS HON'BLE COURT EXHIBIT P5. TRUE COPY OF THE INFORMATION LETTER DATED 7.11.2017 OF THE INFORMATION OFFICER, FACT EXHIBIT P6. TRUE COPY OF THE NOTIFICATION DATED 11.4.2018 ISSUED BY THE 7TH RESPONDENT** **EXHIBIT P7. TRUE COPY OF THE NOTIFICATION DATED NIL AS DOWNLOADED FROM THE WEBSITE OF FACT** **EXHIBIT P8. TRUE COPY OF THE JUDGMENT DATED 14.6.2017 IN W.P.(C).NO.19661/2017 OF THIS HON'BLE COURT EXHIBIT P9 TRUE COPY OF THE RANKED LIST DATED NIL PUBLISHED BY THE RESPONDENTS IN THE NIGHT OF 12.6.18 & 13.6.18 AND DOWNLOADED FROM THEIR WEBSITE.** ## **RESPONDENT(S)' EXHIBITS** **EXHIBIT R1(a) TRUE COPY OF THE RULE DATED 1.08.1991 ISSUED TO THE RESPONDENT BY THE MINISTRY OF CHEMICALS/FERTILIZERS, GOVERNMENT OF INDIA** **..3** **WP(C).No. 14019 of 2018 (B)** **-3-** **EXHIBIT R1(b) TRUE COPY OF THE CONSOLIDATED LIST OF SHORT LISTED CANDIDATES.** **//TRUE COPY//** **P.A. TO JUDGE** ww ## **P.V.ASHA J.** ## **-----------------------------------W.P.(C).Nos.14019 and 14243 of 2018 ------------------------------------** Dated this the 13[th] day of July, 2018 ## **JUDGMENT** The petitioners in both these cases have undergone apprenticeship training under the Fertilizers and Chemicals Travancore Ltd (FACT)-the 1[st] respondent. They seek preference over the direct recruits, while challenging the notification for recruitment to the post of Technician (Process) and Technician (Instrumentation). In W.P.(C) No.14243 of 2018 they are challenging the notification on the ground that Degree in Physics is not included as a qualification, while claiming preference over direct recruits. 2. The petitioners in W.P.(C) No.14019/2018 are challenging Ext.P6 notification inviting W.P.(C).Nos.14019 and 14243 of 2018 2 applications for appointment to the post of Technician (Process). Petitioners therein are graduates in Chemistry and they have undergone apprenticeship in the training centre of the FACT in 2015-16 and passed the National Apprenticeship Examination in Attendant Operator in Chemical Plant(AOCP) in 2017. The first respondent issued Ext.P6 notification on 11.04.2018, inviting applications from eligible candidates for appointment as Technicians in Process, Mechanical, Electrical and Instrumentation. The essential qualification prescribed for appointment of Technician (Process) is : “Degree in Chemistry or Diploma in Chemical Engineering/Chemical Technology(including Petrochemical Technology). Diploma holders will be given preference over those with Degree in Chemistry/Industrial Chemistry. Essential experience prescribed as on 01.04.2018: “Minimum two years post qualification experience in the operation of a large Fertilizer/Chemical/Petrochemical Plant”. Clause 1.2 W.P.(C).Nos.14019 and 14243 of 2018 3 of the notification deals with experience. Clause 1.2.1 provides that one year Technician Apprenticeship Training (for those with diploma) in FACT or from other large Fertilizer/Chemical/Petrochemical plant will be considered as experience on production of certificate of proficiency (COP) along with application. Clause 1.2.2 provides that the period of apprenticeship under Attendant Operator Chemical Plant (for those with Degree in Chemistry/Industrial Chemistry) would be treated as experience to the extent of apprenticeship training period on furnishing NAC (National Apprenticeship Certificate) along with application. It was notified that the selection would be based on online test which consists of 2 parts. 3. Being graduates who have undergone apprenticeship under FACT for one year petitioners submit that they are eligible for NAC and are fully qualified for appointment as Technician (Process). They claim that they are entitled to preference over W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [7 x 8] intentionally omitted <==** direct recruits in the light of the judgment of the Apex Court in _**UPSRT Corporation v. UP Parivahan NSB Sangh**_ **: AIR 1995 SC 1115** and Ext.P3 circular issued by the Director General of Employment and Training, on 15.03.1996, issued in implementation of the direction in that judgment. According to them the notification Ext.P6 is issued in violation of the judgment of the apex court as well as the Ext.P3 circular and that in view of the judgment and by virtue of Ext.P3 circular, they claim appointment/absorption as Technicians, without undergoing any process of selection, against the existing vacancies. 4. The petitioners further claim that subsequent to the amendment of Section 22(1) of Apprentices Act, 1961 every employer has to formulate its policy for recruiting any apprentice who has completed the period of apprenticeship training in his establishment. The respondent, FACT has not so far formulated any policy despite the amendment effected W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [7 x 8] intentionally omitted <==** to Section 22(1). Relying on the information collected under Right to Information Act in Ext.P5 letter, they claim that as long as the respondent has not formulated any policy, they have to follow the judgment in _**UPSRT Corporation's case (Supra)**_ and Ext.P6 notification which was issued without taking any policy, on the question of the recruitment of the apprentices, is illegal and the respondents cannot be allowed to proceed with it. 5. Relying on Ext.P4 judgment of this Court in a batch of cases in O.P.No.16099/1997 and connected cases and the judgment of the Apex Court in _**Public Service Commission, Uttaranchal v. Jagdish Chandra Singh Bora and Another**_ **: 2014 (8) SCC 644,** learned counsel for the petitioners argued that by granting of experience and age relaxation to the apprenticeship candidates there would be a sub classification among the apprenticeship candidates and that the proceedings initiated by the respondent for the recruitment, W.P.(C).Nos.14019 and 14243 of 2018 6 without formulating any policy as provided in Section 22 is illegal. 6. Based on the interim order passed by this Court, the respondent has conducted the selection. On 20.04.2018, this Court had made it clear that the pendency of the writ petition would not stand in the way of petitioners participating in the selection process pursuant to Ext.P6 and the selection would be subject to the result of this writ petition. 7. The respondent filed a counter affidavit stating that Ext.P6 notification was issued inviting applications for appointment of Technicians in various categories by direct recruitment, from among candidates having the qualification prescribed as against the respective posts. Apart from the educational qualification, experience is also required for appointment to the post. One year Technician Apprenticeship training in FACT or from other large Fertilizer/Chemical/Petrochemical Plants is treated as W.P.(C).Nos.14019 and 14243 of 2018 7 experience, in the case of diploma holders. The period of apprenticeship training in FACT under Attendant Operator Chemical Plant (AOCP) is treated as experience in the case of Degree holders on furnishing NAC along with application. Apart from that for the candidates who had successfully completed Apprenticeship in FACT, age was further relaxable to the extent of period of apprenticeship, as per Clause 2 of the notification. It is the case of the respondents that the apprentices are given relaxation in age and their apprenticeship period is treated as experience. Such relaxations are not available for direct recruits. Regarding Ext.P4 judgment, it is stated that the said recruitment was from among those who completed apprenticeship training from FACT. The question which arose there was regarding the ranking in between candidates who had undergone apprenticeship training in different batches and in that case it was held that the candidates of the first batch has to be 8 W.P.(C).Nos.14019 and 14243 of 2018 ranked above those who completed the apprenticeship in the subsequent batch, that too, after assessment of merit. Therefore it is stated that none of the judgments or provisions contained in the Apprentices Act, provides for recruitment of apprentices without undergoing the process of selection. It is also stated that there is no ban in conducting selection for recruitment of apprentices along with direct recruits. 8. The learned counsel for the petitioner submits that when Section 22(1) provides for a policy decision to be taken by the employer, the respondents cannot be permitted to carry on the process of recruitment. It is also argued that the judgment in _**Public Service Commission, Uttaranchal's case (Supra)**_ would show that the apprentices were given additional marks. A similar policy is to be adopted by the respondent herein. Otherwise, the apprentices would not get any preference. It is also pointed out that W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [7 x 8] intentionally omitted <==** in the case of petitioners, there was no additional benefit or preference given. 9. The learned Standing Counsel for respondents points out that some of the petitioners have qualified in the written test and interview and are already short listed. However, some of the petitioners did not qualify in the test. The learned Standing Counsel argued that the judgment in _**UPSRT Corporation's case (Supra)**_ is already clarified in the subsequent judgment in _**U.P.Rajya Vidyut Parishad Apprentice Welfare Association and Another v. State of U.P. And Others**_ **: 2000 (5) SCC 438** in which it was held that the preference need be given only if other things are equal, after undergoing the process of selection. In the judgment in _**Public Service Commission, Uttaranchal's case (Supra)**_ the Apex Court held that the apprentices have to undergo the selection process as in the case of the direct recruits and the apprentices like petitioners cannot have any vested 10 W.P.(C).Nos.14019 and 14243 of 2018 right for appointment. The judgment of the Madras High Court in _**N.Remani V Tamilnadu Generation and Distribution Corporation**_ **: 2017 SCC Online 6237** was also relied on where also the apprenticeship candidates challenged the notification for recruitment seeking a declaration that they were not liable to be subjected to any process of selection and for a direction to the Company to formulate a policy under Section 22(1) of the Apprenticeship Act, 1961 and seeking their absorption. The claim of the apprenticeship candidates were repelled. 10. I heard the learned Counsel for the petitioner and the learned Standing Counsel for the respondents. Since the petitioners are relying on the judgment in _**UPSRT Corporation's case (Supra)**_ , it is relevant to examine that judgment with reference to the judgment in _**U.P.Rajya Vidyut Parishad Apprentice Welfare Association's case (Supra)**_ and the subsequent judgments of the Apex Court where the impact of the W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [12 x 8] intentionally omitted <==** judgment in _**UPSRT Corporation's case (Supra)**_ was considered. 11. In the judgment in _**UPSRT Corporation's case (Supra)**_ , after analysing the object behind the enactment and the various provisions contained in the Apprentices Act, 1961, the Apex Court found that the legislature did desire and make adequate provisions to see that the competent persons receive due training to cater to the need of increasing demand for skilled craftsmen on one hand and to improve the employment potential of the trainees on the other, for which good amount of public money is spent on training the apprentices and that the training imparted is desired to be result-oriented. It was found that though Section 22 did not make it obligatory for the employer to offer employment to the apprentice, going by the circulars issued by the Government of UP as well as by the Government of India it was observed that it would not be just and proper to go merely by what is stated W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [12 x 8] intentionally omitted <==** in Section 22(1) of the Act, or in the model contract form and that what was required was to see that the nation gets the benefit of time, money and energy spent on the trainees, which would be so when they are employed in preference to non-trained direct recruits. In paragraph 12 of the judgment it was directed 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. 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_ W.P.(C).Nos.14019 and 14243 of 2018 13 _training would be given._ - _(4) The training institute concerned would maintain a list of the persons trained yearwise. 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.”_ It was directed that while considering the cases of the trainees for giving employment in suitable posts, the provisions in the Service Regulations of the Corporation shall be followed, but the trainees would not be required to appear in any written examination, while giving appointment. 12. The question whether the direction that the trainees need not appear in the selection process was confined to the _**UPSRT Corporation's case (Supra)**_ alone or it applies to others came up for consideration before a Full Bench of the Allahabad High Court in _**Arvind Gautam v. State of U.P**_ **: (1999) 2 UPLBEC 1397 (All) (FB)** and the Full Bench approved the judgment in W.P.(C).Nos.14019 and 14243 of 2018 14 _**Manoj Kumar Mishra v. State of U.P**_ **: (1997) 2 UPLBEC 1374** , where it was held that the direction was confined to that case alone and that the apprentices have to undergo the selection process as provided in the Recruitment Rules. When that question came up before the apex court in _**U.P. Rajya Vidyut Parishad Apprentice Welfare Assn.'s case (Supra)**_ **,** the Apex Court approved the view of the view of the Full Bench as the correct one and that apprentices have to go through the procedure of examination/interview and that they are however entitled to the benefits of the directions ( _1_ ) to ( _4_ ) in paragraph 12 of the judgment in the _**UPSRT Corporation's case (Supra)** ._ 13. The applicability of the directions in _**UPSRT Corporation's case (Supra)**_ again came up for consideration in _**Public Service Commission, Uttaranchal v. Jagdish Chandra Singh Bora**_ **:** _**(2014) 8 SCC 644,**_ when the Public Service Commission challenged the direction of the High Court to give weightage of W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [12 x 8] intentionally omitted <==** 10 bonus marks to the trained apprentice candidates, as per the “Uttaranchal Subordinate Engineering Services (Emergency Direct Recruitment) (First Amendment) Rules, 2003”. In that case the State issued a notification on 27-11-2001 inviting applications for appointment of Junior Engineers, in accordance with Uttaranchal Subordinate Engineering Services (Emergency Direct Recruitment) Rules, 2001. Pending the selection rules were amended making the apprentices eligible for additional ten marks on the total marks in written test and interview, while preparing the rank list. Thereafter a clarification was issued on 29.04.2004 that the additional 10 marks need be added only in a case where the direct recruit candidate and apprenticeship candidate stood on equal footing. Writ Petitions were filed seeking directions to add the additional 10 marks to all candidates who had undergone apprenticeship and claiming preference over direct recruits in the light of the _**UPSRT**_ W.P.(C).Nos.14019 and 14243 of 2018 16 _**Corporation's case (Supra)**_ . The High Court found that the selection should be governed by the 2003 rules and clarification issued in 2004 shall not apply. The UPSC challenged the judgment stating that the selection was conducted under 2001 Rules. The Apex Court found that the 2001 Rules were issued in view of the emergency for direct recruitment and the operation of those rules ceased in 2002, on completion of the recruitment and that the 2003 rules will not apply. The written examination was conducted by IIT and the interview was to be held by the PSC from the list of successful candidates in the written examination forwarded to it by the IIT, prepared on the basis of the marks in written examination. Apex court found that the advertisement did not provide for any weightage to the apprentices and all the candidates underwent the selection process, based on the said advertisement. The Apex Court further found that even the procedure for awarding the additional marks as per W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [12 x 8] intentionally omitted <==** the 2004 clarification was arbitrary as it denied the additional marks to all the apprentices equally effectuating discrimination. On the claim of the apprentices based on _**UPSRT Corporation's case (Supra)**_ , the following observations of the Apex Court are relevant: _**"25.** We are not able to accept the submission of Mr Hansaria that the benefit of 10 additional marks to the trained apprentices is limited only to those trained apprentices who have secured equal marks with one or more candidates in the category of direct recruits. The learned Senior Counsel seeks to support the aforesaid submission from the directions issued by this Court in U.P. Parivahan Nigam Shishukhs Berozgar Sangh case[1] which was as follows: (SCC p. 6, para 12)_ - _“12. … (1) Other things being equal, a trained apprentice should be given preference over direct recruits.”_ - _The only natural meaning of the aforesaid phrase “other things being equal” is that all the candidates must have been subjected to the same selection process_ W.P.(C).Nos.14019 and 14243 of 2018 18 _i.e. same written test and interview. Further that their inter se merit is determined on the same criteria, applicable to both categories. In this case, it is the aggregate of the marks secured by the candidate in the written test and the interview. The additional 10 marks are given to the apprentices as they are generally expected to secure lesser marks than the direct recruits in the written examination. Thus, by adding 10 marks to the total of the written examination of the trained apprentices, they are sought to be put on a par with the direct recruits. Therefore, necessarily this preference is to be given to all the trained apprentices across the board. It cannot be restricted only to those trained apprentices who fortuitously happen to secure the same marks as one or more of the direct recruits._ _**26.** In case the additional 10 marks are restricted only to such trained apprentice candidates, it would result in hostile discrimination.xxxxxxxxxxxx_ _**27.** The only direction issued by this Court in U.P. Parivahan Nigam Shishukhs Berozgar Sangh case was to give preference to the trained apprentices over direct recruits. No direction is given in the judgment as_ W.P.(C).Nos.14019 and 14243 of 2018 19 _to how the preference is to be given. It was left entirely to the discretion of the Government to make the necessary provision in the statutory rules. In that case, number of candidates who had successfully completed apprenticeship under the Apprentices Act, 1961 claimed appointment upon completion. In support of their claim, the candidates relied on a number of government orders, which according to them held out a promise that on successful completion of apprenticeship, they would be given employment. The High Court issued a writ in the nature of mandamus directing that such candidate should be given employment. In such circumstances, U.P. SRTC came before this Court and submitted that there was no obligation on the State Government to ensure employment to any trained apprentices. This Court analysed the various government circulars and came to the conclusion that there is no promise held out for the candidates of definite employment. However, in order to ensure that the training given to the apprentices at the State expense is utilised, certain directions were issued, which have been reproduced earlier."_ W.P.(C).Nos.14019 and 14243 of 2018 20 14. This question came up for consideration of the apex court again in _**Abdul Hamid v. Union of India**_ : **(2017) 16 SCC 346** where the proceedings for selection for appointment of “fresh face substitutes” in Group D in Railways, was under challenge by candidates who underwent apprenticeship elsewhere, on the ground that the source of recruitment was confined to those who had undergone apprenticeship training with the Railways, claiming that all persons who were otherwise qualified, were entitled to apply. The claim of the Railway trained apprentices on the judgment in _**UPSRT Corporation's case (Supra)**_ for preference over others was repelled observing that "What has been held is that if the non-Railway trained apprentice is equal to the Railways trained apprentice on merit, then preference can be given to the Railways trained apprentice and that the Railways trained apprentice will not have an exclusive right to be considered for appointment. It was held that the field of choice W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [12 x 8] intentionally omitted <==** cannot be limited only to those who have undergone their apprenticeship training with the Railways since that would patently violate Articles 14 and 16 of the Constitution of India depriving those who have not undergone apprenticeship training with the Railways of an equal opportunity for applying for these posts. Ext.P4 judgment of this Court will also not help the petitioners as the dispute therein was between apprentices of two different batches. Even in that case this Court found it necessary for them to undergo the process of selection. The circular Ext.P3 issued on the basis of _**UPSRT Corporation's case (Supra)**_ , cannot also help the petitioners in view of the subsequent judgments. 15. The contention of the learned counsel for the petitioner is that the relaxation given to the apprentices by the respondent with respect of age and reckoning the period of apprenticeship towards experience would amount to discrimination, as held by W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [12 x 8] intentionally omitted <==** the Apex Court in _**Uttaranchal's case (Supra)**_ . But I am unable to accept the said contention. In _**Uttaranchal's case (Supra)**_ , discrimination was found because the additional marks were admissible only where candidates from both sources, apprentices and direct recruits, were found to be on equal footing. Others were not given the marks. May be the petitioners are not benefited by the relaxation provided by the respondent, because they are within the age limit and they are having requisite experience otherwise. At the same time, those who became over aged as well as those who do not have any experience other than apprenticeship training are eligible to appear in the process of selection whereas the candidate in open market has to fulfill all the conditions prescribed in the notification. Therefore it cannot be said that there is a sub classification or that apprentices are not given any relaxation or any preference. The further contention that without W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [12 x 8] intentionally omitted <==** formulating any policy, the respondent cannot carry out any process of recruitment could also not be substantiated by petitioner. There is no provision in the Apprentices Act which provide that failure to formulate a policy would vitiate the proceedings for recruitment in any manner. None of the judgments relied on by the learned counsel for the petitioner also indicates any disqualification on the employer in proceeding with the process of selection or direct recruitment. It cannot be said that the respondent cannot proceed with direct recruitment from open market without formulating any policy. 16. What is provided in Section 22(1) is to formulate a policy in respect of recruitment of any apprentice who has completed apprenticeship training in the establishment. At the same time, it does not provide that such a policy has to be formulated before any process of recruitment is made. Of course, the purpose behind such a provision can be for the benefit W.P.(C).Nos.14019 and 14243 of 2018 24 of the apprentices since they have undergone training under the employer. At any rate, in the absence of any provision that no recruitment can be made until policy is formulated, the petitioners cannot have any right to insist that the respondents shall be compelled to formulate a policy before recruitment is made. Moreover, it is not a recruitment from among apprentices alone. If that be so, the respondents could have been directed to formulate a policy before proceeding with the selection. 17. In the above circumstances, I do not find any reason to interfere with the selection. However, when there is a provision in the Apprentices Act, it is only proper that the respondent employer take steps to formulate a policy without any delay, in accordance with the procedure. 18. In W.P.(C) No.14243/2018, the petitioners are Graduates in Physics. They have also undergone apprenticeship training. Their grievance is that when W.P.(C).Nos.14019 and 14243 of 2018 **==> picture [12 x 8] intentionally omitted <==** Ext.P7 notification in that case, which is the same as Ext.P6 in the other case, the qualification prescribed for Technician (Instrumentation) is Diploma in Instrumentation/Electronics Engineering with experience. According to them the qualification prescribed for Technician (Process) is Degree in Chemistry/Industrial Chemistry along with other qualifications. As far as Technician (Instrumentation) is concerned, the Graduates in Physics are eligible for such appointments. The Degree in Physics is not prescribed as a qualification. According to them the apprentices trainees in the trade of AOCP with Degree in Chemistry are eligible for the post of Technician (Process). Therefore apprentice trainees having NAC certificate in the trade of IMCP with Degree in Physics are eligible for the post of Technician (Instrumentation) and hence exclusion of Graduates in Physics from the candidature for appointment in the trade of Instrumentation is illegal. W.P.(C).Nos.14019 and 14243 of 2018 26 14. The learned Standing Counsel argued that the notification issued prescribing the qualifications which are prescribed in the service regulations and it is for the employer to decide what should be the qualification for appointment to a particular post. 15. It is settled law it is for the employer to decide the qualification to be prescribed for a post and this Court will not be in a position to take the role of the employer and to decide whether the Graduates in Physics are eligible for appointment as Technician (Instrumentation) and whether they should also be permitted to participate in the selection. It is settled law that the Courts under Article 226 shall not normally interfere with matters relating to prescription of qualification for a post and it is a matter entirely within the domain of the employer [ _**J.Rangaswamy v. Government of A.P**_ **: (1990) 1 SCC 288;** _**Nagaland Public Service Commission v. State of Nagaland**_ **: (2017) 13 SCC 498].** W.P.(C).Nos.14019 and 14243 of 2018 27 Therefore the petitioners in W.P.(C) No.14243/2018 could not also substantiate any ground for interference of this court. In the result both these writ petitions are dismissed. Sd/- **P.V.ASHA, JUDGE.** ww