- (1.) S. N. Srivastava, J. By means of the present petition, the petitioner has prayed for the relief of mandamus directing respondents to regularize his service and to pay salary regularly and a further mandamus not to dispense with his service and not to make any appointment in his locum as stenographer.
(2.) SHORN of unnecessary details, a brief resume of necessary facts bearing on the controversy may be stated. The petitioner having obtained diploma in commercial and secretarial practice from Maharana Pratap Polytechnic Gorakhpur was articled to the office of Mukhya Nagar Adhikari Nagar Nigam Gorakhpur to serve as apprentice wherein he joined on 12-4-1994. He continued as such upto 1998. He was again offered appointment as stenographer in the year 1999. By means of letter dated 26th May, 1999, Mukhya Nagar Adhikari communicated to the Principal Secretary Nagar Vikas, Government of U. P. the requirement of the posts and sought sanction of seven posts of stenographers. In the meantime, some orders were issued by the Government of U. P. embodying therein the direction not to create new posts. It would appear from the record that a fresh request was made by the Mukhya Nagar Adhikari this time, seeking sanction of two posts of stenographer attended with the request to grant imprimatur to continue the petitioner who has already been at work in the Nagar Nigam as stenographer. As a sequel to this letter, Special Secretary, Government of U. P. sought certain information by means of letter dated 17th December, 1999 revolving round the terms and conditions of service of stenographer, which the Mukhya Nagar Adhikari furnished by means of letter dated 23-12-1999. Accordingly, Government of U. P. accorded approbation to the Nagar Nigam Gorakhpur to appoint petitioner as stenographer on contract basis pending creation of new posts. Again by means of letter dated 27-3- 2002, Mukhya Nagar Adhikari apprised State of U. P. regarding extension of service of the petitioner till 30th September, 2002 and sought instructions if any otherwise in the matter. By means of letter dated 19th October, 2003, the Mukhya Nagar Adhikari again sent a letter to the State of U. P. seeking permission to continue petitioner in the service of Nagar Nigam congruent with the requirements of the Nagar Nigam but in the meantime, some letter came to be issued by Special Secretary U. P. Shasan Lucknow which had its genesis in U. P. Public Services (Regulation of Appointments) Adhyadesh, 2001, thereby declining extension to the appointment of the petitioner. It is in the above backdrop that the petitioner felt aggrieved and preferred the instant petition. Learned counsel for the petitioner canvassed that the petitioner was articled to the office of Mukhya Nagar Adhikari to service as apprentice under the Apprentices Act, 1961 and he worked as apprentice between 1994 and 1998 during which period he rendered immaculate and satisfactory service matching the requirements of the Nagar Nigam and without any room for complaint and on completion of successful apprenticeship, proceeds the submission, he was entitled to be appointed as stenographer in the Nagar Nigam. He further submitted that notwithstanding exigent requirements of as many as seven posts of stenographers, the Government accorded approbation to appointment of petitioner on contract basis pending creation of posts by the State of U. P. He further submitted that the petitioner was consequently retained in service and he is still discharging his duties but is not being paid salary. Lastly, it has been submitted that the petitioner is entitled to regularization of his service as stenographer and staked claim to payment of salary regularly. Per contra, Sri B. D. Mandhyan for the respondents tried to whittle down the submissions for regularization by terming the appointment of the petitioner as illegal and in vindication, he drew attention of the Court to Definition clause 2 (e) of the Adhyadesh 2001. He further invited attention to clause 5 of the Adhyadesh arguing that the appointment being illegal was liable to cancellation within a period not exceeding fifteen days in view of clause 5 of the Adhyadesh. He finally argued that there is no sanctioned post and hence the petitioner's appointment was illegal having been made without following due procedure of selection. The rival contentions made across the bar by the learned counsel for the parties, crystallize following issues for determination : (i) Whether petitioner being apprentice under the Apprentice Act, 1961, and having served as apprentice between 1994 and 1998 was entitled to be appointed on regular basis in the Nagar Nigam? (ii) Whether the petitioner who was appointed on contract basis is entitled to be considered for appointment on regular basis? (iii) Whether the petitioner having worked on contract basis was entitled to salary for the period he worked in the Nagar Nigam? (iv) Whether the petitioner upon being appointed on contract basis pursuant to the permission accorded by the Government as contained in the letter of Special Secretary could be termed to be an appointment made illegally without following due procedure of selection? (v) Whether the petitioner is entitled to preference under the Apprentice Act, 1961? I would first dwell upon questions 1 and 2. It brooks no dispute that the petitioner was a valid diploma holder and was articled to the office of Mukhya Nagar Adhikari and served as apprentice between 1994 and 1998. It further bears no dispute that pursuant to the request made by the Nagar Nigam seeking appointment and extension of service of the petitioner as stenographer, the Government accorded permission to appoint the petitioner on contract basis pending sanction of posts and in consequence, his services came to be extended till 30th September, 2002. In view of the above, the precise question that presents itself in the forefront for consideration is whether Apprentices Act, 1961, lends countenance to the claim of the petitioner to be appointed by reason of being trained apprentice, without recourse to due procedure prescribed for selection. In connection with this proposition, the learned counsel sought aid of decision rendered by the Apex Court in Narinder Kumar and others v. The State of Punjab and others, AIR 1985 SC 275. The essence distilled from the decision aforestated is that under Section 22 (1) it is not obligatory on the part of the employer to offer any employment of any apprentice who has completed the period of his apprenticeship training in his establishment nor it is obligatory on the part of the apprentice to accept an employment under the employer. It was further held by the Apex Court that this provision is however, subject to the non-obstante Clause in Section 22 (2 ). The Supreme Court also observed that sub-section (2) leaves no doubt that despite the provision contained in sub-section (1) the employer is under an obligation to offer suitable employment to the apprentice if the contract of the apprenticeship contains a condition that the apprentice shall serve the employer after the successful completion of the training. The learned counsel also called in aid the Government letter dated 12th September, 1996. From a perusal of this letter, it is obvious that the Government relaxed certain rigours in relation to appointment of apprentices, which carries connotation that an apprentice is entitled to be considered for appointment in preference to other similarly situated persons. The contents of letter do not bear out that the petitioner has any absolute right to get appointment only on the ground that he served as apprentice in the Nagar Nigam after obtaining diploma. In this connection, reference has also been made to a decision of the Supreme Court in U. P. S. R. T. C. v. U. P. Parivahan Nigam, S. B. S. , 1995 (1) LBESR 472 (SC) : 1995 (1) UPLBEC 320. In this decision, the Apex Court laid down following guidelines : " (1) Other thing 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. Hargopal, AIR 1987 SC 1227, 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 concerned service rule. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. (4) The concerned training institute would maintain a list of the persons trained year-wise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior. " In the aforestated decision, the Apex Court scanned the entire Apprentices Act, 1961 and also the Apprenticeship Rules, and its Objects and Reasons and after traversing upon the Act and Rules, the Apex Court quintessentially observed that it is clear that the training imparted is rather exhaustive and elaborate; that sufficient amount of money is also spent on the trainees by way of payment of stipend to them; that what is more, there is an obligation on the employers to provide an apprentice with training in his trade in accordance with the provisions of the Act; that the employer is also required to ensure that a person possession prescribed qualification is placed in charge of training of the apprentices. The Apex Court also observed that the Act seeks to enforce these obligations on the pain of even prosecution about which mention has been made in Section 30 of the Act. The Apex Court also dwelt upon the aspect of legislative intention observing 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 craftsman on one hand and to improve the employment potential of the trainees on the other; that good amount of money, which would be public money in case of public bodies like the Corporation is also spent on training the apprentices. It was also observed that during the period of training, the apprentices are put under a discipline akin to that of regular employee inasmuch as Section 17 states that in all matters of conduct and discipline, the apprentice shall be governed by the rules and regulations applicable to employees of the corresponding category in the establishment in which the apprentice is undergoing training. In ultimate analysis, the Apex Court in deciding the case in hand directed that while considering the cases of the trainees for giving employment in suitable posts what has been laid down in the Service Regulations of the Corporation shall be followed, except that the trainees would be required to be given preference. The trainees in that cases were serving as apprentices in the U. P. S. R. T. C. What would transpire from the above is that there must be sanctioned posts and the cases of such apprentices would be considered in the course of selection by due procedure prescribed subject to the relaxations as indicated above.
(3.) ADMITTEDLY, no selection has taken place in Nagar Nigam Gorakhpur and therefore, no question arises for giving preference to the petitioner qua others. It is also obvious in the conspectus of facts that the Nagar Nigam sought creation of posts of stenographers and there is no existing post on which any regularization could be claimed. Besides, the learned counsel for the petitioner has not been able to pinpoint any provision, which contemplates regularization of persons sans any existing sanctioned post. In the above perspective, it therefore, follows that there exists no sanctioned post and even otherwise, the learned counsel has not adverted to any provision, which could furnish foundation for regularization of the petitioner as stenographer in the Nagar Nigam. Mere letter containing requirement of the Nagar Nigam cannot be stretched so far as to mean that he could be considered for regularization pending sanction of such posts. There must be sanctioned post on the anvil of which claim for regularization could be sustained. In view of above discussion, the questions (i) and (ii) are answered in negative. The next question that begs consideration is whether the appointment of the petitioner on contract basis could be termed as illegal appointment by reason of being made without following due procedure of selection in terms of Clause 5 of the U. P. Public Services (Regulation of Appointments) Adhyadesh, 2001. In Clause 2 (e) of the Ordinance, 2001, term 'illegal appointment' has been defined to mean a person who is engaged or employed on or after the commencement of this Ordinance to a post in a public service on daily wages, by whatever designation called, and includes, a person engaged or employed on the basis of nominal muster roll or on consolidated pay, either on full-time or part-time or piece rate basis or as work charged employee on or after such commencement. Clause 3 of the Ordinance envisages that (1) no person shall be appointed to a post in a public service except in accordance with the procedure prescribed in the relevant enactment, service rules, regulations, bye- laws, or executive instructions, as the case may be, for recruitment and appointment to such post and (3) every appointment by direct recruitment to a post in a public service shall be made only after advertising the vacancy in two daily newspapers having wide circulation. And (3) no person shall be appointed as a daily wage employee or ad hoc employee. Coming to the instant case, it would appear that the petitioner was not appointed against any post in the public service. The order passed by the Government permitting the Nagar Nigam to employ the petitioner on contract basis consistent with its exigent requirement does not connote that his employment on contract basis was intended against any sanctioned post. No doubt the order envisaged that the petitioner may be employed on contract basis pending creation of post but the same cannot be taken advantage of to form the basis that the Government intended to create posts consistent with the requirements of the Nagar Nigam. On the other hand, from a perusal of the scheme of ordinance it would crystallize that it was intended for application to persons appointed on ad hoc basis or daily wage basis against any post while in the case of the petitioner, he was neither appointed on ad hoc basis nor on daily wage basis and rather, he was appointed under the orders of the Government. By this reckoning, the provisions of ordinance cannot be said to be intended for application to the appointment of the petitioner and in the circumstances, the appointment of the petitioner cannot be branded as illegal appointment as defined under the Act and in consequence the respondents transgressed the bounds of jurisdiction in directing Nagar Nigam not to allow the petitioner on account of promulgation of the Ordinance. Concededly, the petitioner was appointed with due permission of the Government on contract basis and from the materials on record, it is too patent to be ignored that the Nagar Nigam had placed its requirements before the Government for sanction of seven posts of stenographer. It is also obvious from the record and has not been disputed that the petitioner worked in the Nagar Nigam and Nagar Pramukh passed number of orders for payment of salary. In the circumstances, the conclusion is irresistible that the petitioner having been appointed on contract basis with prior permission of the Government was entitled to continue on contract basis as stenographer till such period, the regular selection is made on creation of posts by the State Government. In view of what has been discussed above, the questions (iii) and (iv) are answered accordingly and it is accordingly held that the appointment of the petitioner on contract basis cannot be termed as illegal appointment within the definition of clause 2 (e) of the Adhyadesh, 2001 and it is further held that the petitioner is entitled to salary for the period he worked in the Nagar Nigam on contract basis.;