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Thursday, January 10, 2013

- Service matter = the Division Bench concurred with the view expressed by the learned single Judge in CWP No. 1383 of 2009 whereunder the respondents were held entitled for grant of Assured Career Progression Scale (for short “the ACP Scale”) on completion of ten years of service which included training as apprentice.-invoked the writ jurisdiction of the High Court claiming the benefit of the second ACP Scale on completion of twenty years of service on the base that their period of training as apprentice had to be taken into consideration. Such a claim was founded on the assertion that they had joined as trainees between 17.4.1987 to 30.4.1987 and were subsequently absorbed and brought into the cadre. - On completion of ten years from the date they entered the service as trainees, the first ACP Scale was granted to them. However, when conferring of the benefit of the second ACP Scale arose, the same was not extended to them. = whether any of the clarificatory letters/circulars conferred any benefit on these employees so that they could be treated to be in regular service. On a perusal of the notification issued by the Board, it is clear as crystal that it relates to two categories of direct recruits who shall undergo training for a period of two years in the regular pay scale. Thus, the said notification has no application to apprentices who avail the training. In the clarification issued on 27.3.1991, there is a mention with regard to the regular pay scale in the notification dated 13.9.1990. The query was limited to the issue whether the training period of such a trainee would be counted for all intents and purposes or not. In that context, it was clarified that the period spent by the apprentice of all categories shall be treated as duty for all intents and purposes, i.e., for grant of increment in accordance with the provisions as contained in the policy, leave and seniority, i.e., from the date of joining in this cadre. It is worth noting that the Board had issued further clarification that the benefit of grant of annual increment under the provisions as contained in the letter dated 27.3.1991 was to be given to the trainees of all categories whose services had been regularized on 29.1.1991 or thereafter, and the consequential benefit should accrue only from the date on which the regular pay scale has been granted to the trainees of all categories. Clause 5 of the ACP Scheme which provides for eligibility criteria, in its note stipulates that for the purpose of the scheme, regular satisfactory service would mean continuous service counting towards seniority under the Board including the continuous service in PSEB before reorganization. It has been clearly stated that period spent on ad hoc basis, work charged basis, contingent basis and daily wages would not be counted for the purpose of counting the prescribed length of regular satisfactory service for the scheme. The respondents, as is evident, were appointed on different dates, i.e., 30.10.1988, 17.10.1988 and 25.10.1988 respectively as Technicians Grade-II in the pay scale on regular basis. Their period of probation was for two years. The letter/circular dated 27.3.1991 emphasizes the terms from the date of joining in the cadre. As is perceptible from the clarificatory letter dated 27.3.1991, the trainees of all categories have been granted regular pay scale from 21.1.1990 and decision had been taken that the training period or period spent as trainees of all categories shall be treated as duty for all intents and purposes. On 20th of January, 1992, it was further clarified that the period spent by the trainees of all categories on training would be counted as experience in service for the purposes of promotion. On a scrutiny of the promotion policy, the ACP Scheme and the communications, we find that the High Court has erred in its appreciation of the contents of the promotion policy and the conditions incorporated in the scheme and the clarificatory letters issued from time to time and their essential purport. The Board, on 14.3.1990, substituted and added certain clauses to the recruitment and promotion policy. We have reproduced the same earlier and on a proper scrutiny, it is perceivable that 50% posts are to be filled by direct recruitment from amongst persons who have passed 2 years ITI course with Matric as minimum qualification and such directly recruited Plant Attendants Grade-II would remain on training for a period of two years on the regular pay scale of Plant Attendant Grade-II to be allowed by the Board from time to time, and the other 50% is be filled up by direct recruitment from amongst persons who have passed two years ITI course with middle examination with two years experience or ITI one year course with middle examination and with three years experience of similar works. Such directly recruited Technician Grade-II shall remain on training for a period of two years in the regular pay scale. The clarificatory letter has to be read in the said context and we are disposed to think so as the persons appointed under the policy in the regular pay scale are required to go on training. The clarification sought related to grant of increment and computation of period that is spent as trainee in the capacity of Plant Attendant Grade-II and in that context, the clarification issued was that the training of all categories on training would be counted. It is worthy to note that the respondents were not recruited under the said policy. They were appointed as apprentices ITI trainee on 28.3.1987 and they were not given any kind of post. It is only mentioned that they may be appointed as Plant Attendant Grade- II/Technician Grade-II. Thereafter, they were appointed on different dates as Officiating Technician Grade-II. The regular pay scale was given from the date of appointment. Prior to that, it was a fixed pay. They were not working on a post. They did not belong to any cadre. In fact, they were not recruited and, hence, the term trainee which has been referred to in various clarificatory letters has been misconstrued by the High Court. 29. In view of the aforesaid analysis, we conclude and hold that the judgments rendered by the learned single Judge as well as by the Division Bench are unsustainable and are, accordingly, set aside. However, we clarify that if any financial benefit had been availed by the respondents, the same shall not be recovered, but their dates for grant of ACP Scale shall remain as determined by the appellants. Accordingly, the appeal is disposed of. The parties shall bear their respective costs.


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO. 100      OF 2013
                (Arising out of S.L.P. (C) No. 29987 of 2010)


Haryana Power Generation Corporation
Limited and Others                                       ... Appellants

                                   Versus

Harkesh Chand and Others                           ...Respondents










                               J U D G M E N T


Dipak Misra, J.


      Leave granted.

2.    The present appeal by special leave is directed against  the  judgment
and order dated 26th July, 2010 passed by  the  High  Court  of  Punjab  and
Haryana at Chandigarh in LPA No. 865 of  2010  whereby  the  Division  Bench
concurred with the view expressed by the learned single  Judge  in  CWP  No.
1383 of 2009 
whereunder the respondents were  held  entitled  for  grant  of
Assured Career Progression Scale (for short “the ACP Scale”)  on  completion of ten years of service which included training as apprentice.

3.    The facts as  have  been  undraped  are  that  the  three  respondents
invoked the writ jurisdiction of the High Court claiming the benefit of  the
second ACP Scale on completion of twenty years of service on the  base  that
their period of training as apprentice had to be taken  into  consideration.
Such a claim was founded on the assertion that they had joined  as  trainees
between 17.4.1987 to 30.4.1987 and were subsequently  absorbed  and  brought
into the cadre.
On completion of ten years from the date they  entered  the
service as trainees, the first ACP Scale  was  granted  to  them.   However,
when conferring of the benefit of the second ACP Scale arose, the  same  was not extended to them.  
The said action of the  employer  compelled  them  to
knock at the doors of the High Court and during the  pendency  of  the  writ
petition, by proceeding dated 23.4.2009, the benefits  conferred  under  the
first ACP  Scale  was  withdrawn  referring  to  a  notification  issued  on
11.3.1990 which stipulated in clause  (4)  that  the  trainees  referred  to
therein would be entitled to increment  only  on  successful  completion  of
their training and in case of Plant Attendant Grade-II and Technician Grade-
II, increment on successful completion of  training  would  be  granted  but
without arrears.  Though the writ petition was  confined  to  grant  of  the
second ACP Scale, yet the learned single  Judge  required  the  counsel  for
both the sides to address about the  justifiability  of  withdrawal  of  the
benefit of the first ACP Scale  and  decided  both  the  facets.   The  said
exercise was undertaken by the learned single Judge as the primal  issue  in
respect of both the ACP Scales rested on the  question  whether  the  period
spent during training could be counted towards regular satisfactory  service
or not.

4.     It  is  not  in  dispute  that  the  respondents  were  appointed  as
Apprentice ITI Trainees by the erstwhile  Haryana  State  Electricity  Board
(for short “the Board”) for a period of two years on fixed pay  of  Rs.350/-
per month in 1987.  The Board,  vide  Office  Order  No.  706/Finance  dated
27.2.1998, set out the eligibility criteria for  conferment  of  benefit  of
the ACP Scales.   There  is  no  dispute  that  the  respondents,  who  were
Technicians Grade-II, were not excluded from the application  of  the  same.
The only question that really emerged for consideration before  the  learned
single Judge as well as by the Division Bench was  the  relevant  date  from
which the regular satisfactory service was to be computed for grant  of  ACP
Scales.  The learned single Judge, after referring to  the  clause  and  the
communications issued by the Board from time to time, came to hold that  the
regular satisfactory service would include the period spent by  the  persons
as trainees.  As regards the withdrawal of the first ACP Scale, the  learned
single Judge, referring to the notification dated 14.3.1990  and  especially
to clause (4) which dealt with grant of increment  and  thereafter  applying
the same reasoning, came to hold that clause (4) would have no operation  to
override the Office Order dated 27.2.1998 which  provides  how  the  regular
satisfactory service could be reckoned and, eventually, came  to  hold  that
the ACP Scale that had been  withdrawn  during  the  pendency  of  the  writ
petition was absolutely erroneous.  Being  of  this  view,  he  quashed  the
withdrawal order and issued a writ of mandamus  commanding  the  respondents
therein to grant both the first and second ACP Scales reckoning  the  period
of training towards the regular satisfactory service.

5.    In the Letters Patent Appeal, the Division Bench analysed the  anatomy
of clause  3(q)  dealing  with  grant  of  the  second  ACP  Scale  and  the
eligibility criteria, placed reliance  on  the  memorandum  dated  27.3.1991
circulated to all the departments to the effect that the period of  training
of all employees should be treated as duty for  all  intents  and  purposes,
referred to the  memo  dated  2.1.1992  which  stated  that  the  period  of
training shall be treated as  duty  for  all  intents  and  purposes,  i.e.,
seniority, leave, etc. and for experience in  service  for  the  purpose  of
promotion and further relying on the memorandum dated  20.1.1992  which  has
laid down that such period would be counted as  experience  in  service  for
the purposes of promotion, concurred  with  the  opinion  expressed  by  the
learned single Judge and declined  to  entertain  the  appeal.   Hence,  the
present appeal by the appellants.

6.     We  have  heard  Mr.  Shivendra  Dwivedi,  learned  counsel  for  the
appellants,  and  Mr.  R.K.  Kapoor,  learned  counsel  appearing  for   the
respondents.

7.    At the very outset, we may note that the respondents were granted  the
first ACP Scale on 16.6.1997,  13.1.1999  and  30.6.1998  with  effect  from
1.5.1997 instead of 1.11.1998 as on that date, they completed ten  years  of
service.  The same was withdrawn during the pendency of  the  writ  petition
where the grievance pertained to non-grant of the second ACP Scale in  terms
of the Scheme dated 27.2.1998 introduced by the Board.  It is  also  apt  to
note here that the respondents have already been granted  second  ACP  Scale
with effect from 1.11.2008.  Thus, the only grievance  is  that  the  period
shall differ in respect of each respondent if the  training  period  is  not
computed.

8.    In the backdrop of the  aforesaid  narrow  controversy,  we  think  it
apposite to scrutinize the various documents brought on record and how  they
are to be understood, appreciated and interpreted regard being  had  to  the
contextual meaning of the term ‘training’.

9.    The respondent No. 1 was appointed  as  Apprentice  ITI  Trainee  vide
letter dated 28.3.1987 by the Board.  It was stipulated in the  said  letter
that during the period of training, he would get a  fixed  pay  of  Rs.350/-
per month and on successful completion of the training, he may be  appointed
as Plant Attendant Grade-II/Technician Grade-II in the scale  of  Rs.400-700
on temporary basis and  he  would  be  exclusively  posted  in  the  Thermal
Organisation.  It was also stipulated therein that he would  enter  into  an
agreement with the Board that he would serve the Board  for  at  least  five
years after successful completion of training and in  case  he  would  leave
the service of the Board, he would remit the entire  cost  incurred  by  the
Board in connection with the  training  during  the  period  and  thereafter
during the course  of  his  appointment  together  with  interest.   Similar
letter  was  issued  to  the  other  respondents.   Vide  Office  Order  No.
303/EOM/G-263 dated 6.6.1989, number of persons  including  the  respondents
were appointed as Officiating Technicians Grade-II in the pay-scale of  950-
20-1150-ED-25-1500 with  effect  from  the  dates  mentioned  against  their
names.  The respondents were appointed on regular  basis  with  effect  from
30.10.1988, 17.10.1988 and  25.10.1988  respectively  with  the  stipulation
that they would remain on probation for a period of two years.

10.   As the factual narration would exposit,  the  Board,  in  exercise  of
power under Section 79 of the  Electricity  (Supply)  Act,  1948,  issued  a
notification on 14.3.1990 by bringing certain amendments in the  recruitment
and  promotion  for  employees  working  in  Thermal  Power  Projects.   The
relevant part of the amendment reads as follows: -

           “Para 3(i) of Part-A shall be substituted and read as follows:

           50% posts shall be filled-up by direct recruitment from  amongst
           persons having passed 2 years ITI Course with Matric as  minimum
           qualification.  Such directly recruited  Plant  attendant  Gr-II
           shall remain on training for a period of two  years  in  regular
           pay scale of Plant Attendant Gr-II to be allowed  by  the  Board
           from time to time.  The Competent Authority  may  terminate  the
           services of a Plant Attendant Gr-II (Trainee) without notice and
           without assigning any reason, if his work and conduct during the
           period of training is not found satisfactory.”




           “Para-3 (i) of Part-B shall be substituted and read as follows:

           50% posts shall be filled-up by direct recruitment from  amongst
           persons having passed 2 years ITI Course with Middle examination
           with 2 years experience  or  ITI  one  year  course  and  Middle
           Examination and with 3 years experience on similar works.   Such
           directly recruitment Technician Gr-II shall remain  on  training
           for a period of two years in the regular pay scale to be allowed
           by the Board from time to time.   The  Competent  Authority  may
           terminate the services of a Technician Gr-II  (Trainee)  without
           notice and without assigning any reason, if his work and conduct
           during period of training, is not found satisfactory.

                 The trainees referred to above shall be  entitled  to  the
           increment only on successful completion of their  training.   In
           case of Plant attendant Gr-II and Technician Gr-II, increment on
           successful completion of training shall be granted, but  without
           arrears.”

                                                       [underlining is ours]

11.   We have referred to the substituted clauses in extenso  to  appreciate
the use of the word ‘training’ therein after appointment to a post  and  the
stipulation relating to the grant of increment.   In  the  context  of  this
notification, the policy relating to ACP Scale granted under the ACP  Scheme
and the clarificatory communications are to be understood.

12.   Coming back to the narration,  recruitment  and  promotion  policy  as
amended, the F.A. & C.A.O., PTPS, HSE, Panipat, vide  Memo  dated  7.12.1990
sought certain clarification  in  relation  to  grant  of  increments.   The
clarification sought was to the following effect: -

           “In this connection it  may  please  be  clarified  whether  the
           period  of  training  in  all  the  cases  will  count   towards
           increment, leave salary and pension.   The  above  clarification
           may please be issued at the earliest so that the cases are dealt
           with accordingly on account of  grant  of  increment  and  leave
           salary etc.”

13.   On 27.3.1991, the Secretary, HSEB, clarified the position  by  stating
as follows: -

           “Board vide its notification No. 57, 58, 59,  60/Reg-137,  dated
           14.03.1990 and Notification No. 76/Reg-39/L, dated 13.09.90 have
           granted regular pay scales to the trainee(s) of  all  categories
           w.e.f. 29.1.1990.  In  this  respect  the  Field  Officers  have
           sought for a clarification  whether  the  period  spent  by  the
           trainee on training is to be treated as duty for all intents and
           purposes or not.

                 After considering the pros and cons of the  case,  it  has
           been decided that the period spent  by  the  trainee(s)  of  all
           categories on training shall be treated as duty for all  intents
           and purposes i.e. grant of  increment  in  accordance  with  the
           provisions as contained in the Policy, leave and seniority  i.e.
           from the date of joining in this cadre.”

                                                         [emphasis supplied]

14.   In  continuation  of  the  aforesaid  clarificatory  memorandum  dated
27.3.1991, the Board issued another  memorandum  on  22.11.1991.   The  said
clarification related to grant of regular pay scale to the trainees  of  all
categories and in that letter, it has been stated as follows: -

           “In this connection, it is stated that some field  offices  have
           sought for a clarification as to whether  the  benefit  for  the
           grant of annual increment under the provisions as  contained  in
           letter dated 27.3.91 is to be given to all trainee(s), who  were
           appointed during the year, 1987, 1988 & 1989 etc.”

15.   After referring to the issue which required clarification,  the  Board
clarified that it has decided that monetary benefits of  regular  pay  scale
had to be granted to the trainee(s)  of  all  categories  with  effect  from
29.1.1990 but the benefit of grant of annual increment under the  provisions
as contained in letter dated 27.3.1991 has to be given to the trainee(s)  of
all  categories  whose  services  have  been  regularized  on  29.1.1991  or
thereafter.  It had been further  stated  that  the  consequential  benefits
would accrue only from the date on which the  regular  pay  scale  has  been
granted to the trainees of all categories.

16.   As the facts have been further uncurtained, on  27.1.1998,  the  Board
introduced the  Assured  Career  Progression  Scheme  (for  short  “the  ACP
Scheme”) with the objective to provide such Board employees who fall  within
the scope of the Scheme at least two financial  upgradations  including  the
financial upgradation,  if  any,  availed  by  such  Board  employees  as  a
consequence  of  the  functional  promotion.   Clause  2  excludes   certain
categories of employees, namely, appointed on ad  hoc  basis,  work  charged
basis, part time paid out of contingencies and a daily  wager  from  getting
the benefit of the  Scheme.   Clause  3  deals  with  the  definitions.   It
defines in Clause 3(b) “direct recruit  fresh  entrant”.   The  same,  being
relevant, is reproduced below: -

           “(b)  “Direct Recruited Fresh Entrant” with reference to a  post
           or a Board Employee means the post on which such Board  employee
           was recruited as a regular and direct  recruitee  in  the  Board
           service and is in continuous  employment  of  Board  since  such
           recruitment;”

17.   Clause 5 deals with the eligibility for grant  of  ACP  Scales.   That
being the thrust of the controversy the relevant part of the said clause  is
reproduced below: -

           “5.   Eligibility for Grant of ACP Scales:

           (1)   Every Board employee who,  after  a  regular  satisfactory
                 service for a minimum period of 10 years, has not  got  any
                 financial upgradation in terms of  grant  of  a  pay  scale
                 higher than the functional pay  scale  prescribed  for  the
                 post as on 31.12.1995, on which he was recruited as  direct
                 recruited fresh entrant: -

                 (a)   either as a consequence of his  functional  promotion
                       in the hierarchy, or

                 (b)   as a consequence of the revision of pay scale for the
                       same post, or

                 (c)   as a consequence of any other event through which the
                       functional pay scale of the post has  been  upgraded,
                       with respect to the functional pay  scale  prescribed
                       for the post as on 31.12.1995, shall for the purposes
                       of drawal of pay; be eligible for placement into  the
                       First ACP scale with reference to him.

           (2)   Every Board employee who,  after  a  regular  satisfactory
                 service for a minimum period of 20 years, has not got  more
                 than one financial upgradation in terms  of  grant  of  pay
                 scale higher than the functional pay scale  prescribed  for
                 the post as on 31.12.1995 on which he was  recruited  as  a
                 direct recruited fresh entrant: -

                 (a)   either as a consequence of his  functional  promotion
                       in the hierarchy, or

                 (b)   as a consequence of the revision of pay scale for the
                       same post, or

                 (c)   as a consequences of any other  event  through  which
                       the  functional  pay  scale  of  the  post  has  been
                       upgraded, with respect to the  functional  pay  scale
                       prescribed for the post as on 31.12.1995,  shall  for
                       the purposes  of  drawal  of  pay;  be  eligible  for
                       placement into the First ACP scale with reference  to
                       him.

                 Provided that grant of ACP scale shall also  be  considered
                 financial upgradation for the purpose of this para.

           NOTE : For the purposes  of  this  scheme  regular  satisfactory
           service would mean continuous service counting towards seniority
           under H.S.E.B. including continuous service in  P.S.E.B.  before
           reorganization, commencing from the  date  on  which  the  board
           employee joined his service after being  recruited  through  the
           prescribed procedure  or  rules  regulations  etc.  for  regular
           recruitment, in the cadre in which he is working at the time  of
           being considered his eligibility for grant of ACP  scales  under
           this  scheme  and  further  fulfilling  all   the   recruitments
           prescribed for determining  the  suitability  of  grant  of  ACP
           scales.  The period spent on ad hoc basis; work  charged  basis;
           contingent basis and daily wages will not  be  counted  for  the
           purpose  of  counting   of   prescribed   length   of   “Regular
           Satisfactory Service” for this scheme.”

                                                         [emphasis supplied]

18.   In this backdrop, it is  to  be  seen  whether  the  period  spent  in
apprenticeship would be counted towards regular satisfactory  service.   The
learned single Judge as well as the Division Bench has  returned  a  finding
in favour of the respondents  solely  on  the  basis  of  the  clarificatory
letters and communications.  Before we advert to  the  quintessential  tenor
of the said communications, it is necessitous to understand  the  nature  of
appointment, the concept of an apprentice, his rights under the law and  the
basic ingredients of regular satisfactory service.

19.   As  has  been  stated  earlier,  the  respondents  were  appointed  as
apprentices ITI trainee for a period of two years.  Each of them  were  paid
a fixed salary of Rs.350/-.   After  completion  of  the  training,  it  was
mentioned in the letter of appointment that they may  be  appointed  to  the
post of Officiating Technical Grade-II in the pay  scale  of  Rs.400/700  on
temporary basis.

20.   Section 2(aa) of the Apprentices Act, 1961 (for short “the 1961  Act”)
defines “apprentice” which means a person who is  undergoing  apprenticeship
training in pursuance of a contract of apprenticeship.

21.   Section 2(aaa) defines “apprenticeship training” which means 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.

22.   In U.P. State Electricity Board v. Shiv Mohan  Singh  and  Another[1],
A.K. Mathur, J., speaking for Hegde, J. and himself, while dealing with  the
status of apprentice, has stated thus: -
          “Therefore a combined reading of the sections as  well  as  Rules
          makes it clear  that  apprentices  are  only  persons  undergoing
          training and during that training they  are  entitled  to  get  a
          particular stipend, they have to work for fixed hours and at  the
          end of period of training they have to appear in the test  and  a
          certificate is issued to them. There is no obligation on the part
          of the employer to  give  them  any  employment  whatsoever.  The
          position of the apprentice remains as an apprentice  trainee  and
          during the period  of  training  they  will  not  be  treated  as
          workmen. Only obligation on the part of the employer is to impart
          them training as per provisions of the Act and Rules and  to  pay
          them stipend as required under Rule 11 and beyond that  there  is
          no obligation on the part of the employer to accept them  as  his
          employees and give them  the  status  of  workmen.  There  is  no
          relation of master and servant or employer and employee.”

23.   Be it noted, in the said case, in paragraph 51, it has been laid  down
that the 1961 Act is a  complete  code  in  itself  and  it  lays  down  the
conditions of the apprentices, their tenure, their terms and conditions  and
their obligations and what are the obligations  of  the  employer.  It  also
lays down that the apprentices are trainees  and  not  workmen  and  if  any
dispute arises, then the settlement has to be  made  by  the  Apprenticeship
Advisor as per Section 20 of the Apprentices  Act,  1961  and  his  decision
thereof is final. The nature and character of the apprentice is nothing  but
that of a trainee and he is supposed to enter into a contract and by  virtue
of that contract, he is to serve for a fixed period on a fixed  stipend  and
that does not change the character of the apprentice to that  of  a  workman
under the employer where he is undergoing the apprenticeship training.  Sub-
section (4) of Section 4  only  lays  down  that  such  contract  should  be
registered with the Apprenticeship Adviser, but by non-registration  of  the
contract, the position of the  apprentice  is  not  changed  to  that  of  a
workman. From the scheme of the Act, the apprentice  is  recruited  for  the
purpose of training as defined in Section  2(aa)  of  the  Apprentices  Act,
1961 and from the language employed in Sections 6 and 7,  it  is  more  than
clear 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.

24.   Thereafter, the majority, referring to Section 22 of the  Act,  opined
as follows: -
          “Section 22 makes it abundantly clear that  at  the  end  of  the
          apprenticeship training, it is not obligatory on the part of  the
          employer  to  offer  an  employment  to  an  apprentice  who  has
          completed the period of apprenticeship. 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.  At
          the same time, it is not obligatory on the part of the apprentice
          to serve that employer if there is no such  stipulation  to  this
          effect. So it is a mutual thing and it depends on  the  terms  of
          contract. The survey of all these provisions of the Acts and  the
          Rules as mentioned above, makes it clear that the  character  and
          status of apprentice remains the same  and  he  does  not  become
          workman and labour laws are not attracted.”


      S.B. Sinha, J., in his concurring opinion, has stated thus: -
          “Moreover in terms of Section 22 of the Act, the employer has  no
          statutory liability to give employment to an apprentice.”


25.   In Narinder Kumar and Others v. The State of Punjab and  Others[2],  a
two-Judge Bench dwelt upon the letter  of  appointment  of  apprentices  and
came to hold that the employer was bound to appoint the apprentices  in  the
available vacancies because of  Section  22(2)  of  the  1961  Act  and  the
contractual obligations arising out of para 2 of the letter  of  appointment
which stated that the apprentices shall be absorbed  in  the  department  if
there are vacancies.  Be it noted, emphasis was laid on the  nature  of  the
contract.

26.   In Dhampur Sugar Mills Ltd. v. Bhola Singh[3], while dealing  with  an
award passed by the Labour Court under  the  U.P.  Industrial  Disputes  Act
relating to apprentices, a two-Judge Bench opined thus: -
          “14. If the respondent was appointed in terms of the  Apprentices
          Act, 1961, he will not be a workman, as has  been  held  by  this
          Court in Mukesh K. Tripathi v. Senior Divisional Manager,  LIC[4]
          and U.P. SEB v. Shiv Mohan Singh (supra).


          15. In terms of the provisions of the Apprentices  Act,  1961,  a
          trainee  or  an  apprentice  has  no  right  to  be  absorbed  in
          services.”



27. We have referred to the aforesaid pronouncements solely for the  purpose
   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.   However,  if  the  terms  of  the  contract  of
   apprenticeship lay down a condition that  on  successful  completion  of
   apprenticeship an employer would offer him an  employment,  then  it  is
   obligatory on his part to do so.  In the absence of  such  a  condition,
   there is no obligation.  It depends on the terms of  the  contract.   In
   the case at hand, as the letter of appointment would show, the  employer
   had only stated that on  successful  completion  of  the  training,  the
   apprentice may be  appointed  as  Plant  Attendant/Technician  Grade-II.
   Thus, it was not a mandatory term incorporated in the agreement  casting
   an obligation on the employer to appoint him.

28. Having dealt with the rights of an apprentice, we may presently  proceed
   to  dwell  upon   the   issue  
whether   any   of   the   clarificatory
   letters/circulars conferred any benefit on these employees so that  they
   could be treated to  be  in  regular  service.   
On  a  perusal  of  the
   notification issued by the Board, it is clear as crystal that it relates
   to two categories of direct recruits who shall undergo  training  for  a
   period  of  two  years  in  the  regular  pay  scale.   
Thus,  the  said
   notification has no application to apprentices who avail  the  training.
   In the clarification issued on 27.3.1991, there is a mention with regard
   to the regular pay scale in the notification dated 13.9.1990.  
The query
   was limited to the issue whether the training period of such  a  trainee
   would be counted for all intents and purposes or not.  
In that  context,
   it was clarified  that  the  period  spent  by  the  apprentice  of  all
   categories shall be treated as duty for all intents and purposes,  i.e.,
   for grant of increment in accordance with the provisions as contained in
   the policy, leave and seniority, i.e., from the date of joining in  this
   cadre.   
It  is  worth  noting  that  the  Board  had   issued   further
   clarification that the benefit of grant of annual  increment  under  the
   provisions as contained in the letter dated 27.3.1991 was to be given to
   the trainees of all categories whose services had  been  regularized  on
   29.1.1991 or thereafter, and the  consequential  benefit  should  accrue
   only from the date on which the regular pay scale has  been  granted  to
   the trainees of all categories.   
Clause  5  of  the  ACP  Scheme  which
   provides for eligibility criteria, in its note stipulates that  for  the
   purpose  of  the  scheme,  regular  satisfactory  service   would   mean continuous service counting towards seniority under the Board  including the continuous service in  PSEB  before  reorganization.  
It  has  been
 clearly stated that period spent on ad hoc basis,  work  charged  basis, contingent basis and daily wages would not be counted for the purpose of counting the prescribed length of regular satisfactory service  for  the scheme.
The respondents, as is evident,  were  appointed  on  different
   dates, i.e.,  30.10.1988,  17.10.1988  and  25.10.1988  respectively  as
   Technicians Grade-II in the pay scale on regular basis.  

Their period of probation was  for  two  years.  
The  letter/circular  dated  27.3.1991
   emphasizes the terms from the date of  joining  in  the  cadre.   As  is
   perceptible from the clarificatory letter dated 27.3.1991, the  trainees
   of all categories have been granted regular pay scale from 21.1.1990 and
   decision had been taken that the training  period  or  period  spent  as
   trainees of all categories shall be treated as duty for all intents  and
   purposes.  
On 20th of January, 1992, it was further clarified  that  the
   period spent by the trainees of all  categories  on  training  would  be
   counted as experience in service for the purposes of  promotion.   
On  a
   scrutiny of the promotion policy, the ACP Scheme and the communications,
   we find that the High  Court  has  erred  in  its  appreciation  of  the
   contents of the promotion policy and the conditions incorporated in  the
   scheme and the clarificatory letters issued from time to time and  their
   essential purport.
The  Board,  on  14.3.1990,  substituted  and  added
   certain clauses to  the  recruitment  and  promotion  policy.  
We  have
   reproduced the same earlier and on a proper scrutiny, it is  perceivable
   that 50% posts are to be  filled  by  direct  recruitment  from  amongst
   persons who have passed 2  years  ITI  course  with  Matric  as  minimum
   qualification and such  directly  recruited  Plant  Attendants  Grade-II
   would remain on training for a period of two years on  the  regular  pay
   scale of Plant Attendant Grade-II to be allowed by the Board  from  time
   to time, and the other 50% is be filled up by  direct  recruitment  from
   amongst persons who  have  passed  two  years  ITI  course  with  middle
   examination with two years experience or ITI one year course with middle
   examination and with three years  experience  of  similar  works.  
Such
   directly recruited Technician Grade-II shall remain on  training  for  a
   period of two years in the regular pay scale.  The clarificatory  letter
   has to be read in the said context and we are disposed to  think  so  as
   the persons appointed under the policy in  the  regular  pay  scale  are
   required to go on training.  The clarification sought related  to  grant
   of increment and computation of period that is spent as trainee  in  the
   capacity  of  Plant  Attendant  Grade-II  and  in  that   context,   the
   clarification issued was that the training of all categories on training
   would be counted.  It is worthy to note that the  respondents  were  not
   recruited under the said policy.  They were appointed as apprentices ITI
   trainee on 28.3.1987 and they were not given any kind of  post.   It  is
   only mentioned that they may be  appointed  as  Plant  Attendant  Grade-
   II/Technician Grade-II.  Thereafter, they were  appointed  on  different
   dates as Officiating Technician Grade-II.  The  regular  pay  scale  was
   given from the date of appointment.  Prior to that, it was a fixed  pay.
   They were not working on a post.  They did not belong to any cadre.   In
   fact, they were not recruited and, hence, the  term  trainee  which  has
   been referred to in various clarificatory letters has been  misconstrued
   by the High Court.

29. In view of the  aforesaid  analysis,  we  conclude  and  hold  that  the
   judgments rendered by the  learned  single  Judge  as  well  as  by  the
   Division Bench  are  unsustainable  and  are,  accordingly,  set  aside.
   However, we clarify that if any financial benefit had  been  availed  by
   the respondents, the same shall not be recovered, but  their  dates  for
   grant of ACP  Scale  shall  remain  as  determined  by  the  appellants.
   Accordingly, the appeal is disposed of.  The parties  shall  bear  their
   respective costs.



                                                             ……………………………….J.
                            [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                     [Dipak Misra]

New Delhi;
January  07, 2013

-----------------------
[1]    (2004) 8 SCC 402
[2]    AIR 1985 SC 275
[3]    (2005) 2 SCC 470
[4]    (2004) 8 SCC 387

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