# Union of India & Anr v. C.A.T., Allahabad & Anr

- **Citation:** (2022) 12 ILRA 326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-08
- **Case number:** Writ-A No. 11776 of 2017
- **Bench:** Surya Prakash Kesarwani, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-anr-v-c-a-t-allahabad-anr-48022
- **Pages:** 23

## Headnote

A. Service Law - Recruitment/Selection -
Apprentices Act, 1961 - Sections 18 & 22 -
Ordnance Factories Group C & D Industrial
Posts Recruitment Rules, 1994 - Schedule
to the Recruitment Rules, 1994 - Column
(11) of clause (5).

Recruitment on the post of "Semi-Skilled
Workman" is governed by the Recruitment
Rules, 1994. The vacancies of "Semi-Skilled
Workman" are liable to be filled in accordance
with the Recruitment Rules, 1994 r/w Section 22
of the Act, 1961. (Para 11, 13 to 16)

B. In direct recruitment for the post of
"Semi Skilled Workman" trade test as
prescribed is mandatory. The term "NonSelection Post" used in Column 5 of Clause
5 of the Schedule of the Recruitment
Rules, 1994 read with Column 11 clearly
establishes that the term "Non-Selection
Post" has been used in Column 5 for posts
to be filled by promotion/ transfer and
also by direct recruitment. The term "NonSelection Post" used in Column 5 has not been
used in a strict sense to indicate only for posts
to be filled by promotion/ transfer. Therefore,
posts to be filled by direct recruitments as
mentioned in Column 11 has to be filled
following
the
procedure
provided
in
the
Recruitment
Rules,
1994
read
with
the
aforequoted policy decisions and particularly
Annexure
to
the
policy
decision
dated
06.01.2011. (Para 11, 17 to 24)

C. Obligation on the St. - It has been well
settled 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
12 All. Union of India & Anr. Vs. C.A.T., Allahabad & Anr.
327
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. (Para 25)

The St. is the model employer. The obligation
casts on the St. under Article 39(a) of the
Constitution is to ensure that all citizens
equally have the right to adequate means
of livelihood. Therefore, appointment to a post
in government service or in the service of its
instrumentalities, can only be by way of a
proper selection in the manner recognized by
the relevant legislation in the context of the
relevant provisions of the Constitution. In the
name of individualizing justice, it is also not
possible to shut our eyes to the constitutional
scheme and the right of the numerous as
against the few who are before us. The
Directive Principles of St. Policy have to
be reconciled with the rights available to
the
citizen
under
Part
III
of
the
Constitution and the obligation of the St.
to one and all and not to a particular
group of citizens or class who in the
present set of facts are respondents
asserting for automatic employment in
the
Ordnance
Factory
where
they
completed
their
apprenticeship,
in
exclus

## Text

_Characters 0–39,763 of 76,146. This is a partial read: ask again with offset=39763 for what follows._

326 INDIAN LAW REPORTS ALLAHABAD SERIES
and Division Bench of this Court and the
Supreme
Court
as
aforesaid,
service
rendered
in
ad-hoc,
temporary
establishment
and
work
charge
establishment has been considered as
qualifying
service
subsequent
to
regularisation of the incumbent. In case of
the petitioner, he was engaged as a Paid
Apprentice without any post. The proposal
for converting the post of Paid Apprentice
into the post of Tax Collector/Pound
Keeper was rejected by the Government
long ago. The petitioner was never
regularised on any sanctioned post. No
doubt, the petitioner was asked to work on
in various capacities for 26 years by the
respondents but such work that was taken
from him, was out of administrative
exigency and paid from contingency fund.
There being no post in the regular
establishment ever sanctioned by any
competent
Authority
on
which
the
petitioner could be said to have been
engaged in accordance with the Rules
framed by the Government in this regard,
this Court cannot grant the relief as prayed
for in this petition.

16. The writ petition lacks merit and
is hereby dismissed.
----------
(2022) 12 ILRA 326
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 11776 of 2017
With
Writ-A No. 4315 of 2017 & Other Cases

Union of India & Anr. ...Petitioners
Versus
C.A.T., Allahabad & Anr. ...Respondents

Counsel for the Petitioners:
Sri Shekhar Kumar Yadav, Sri Krishna
Agarawal, Sri Lal Mani Singh

Counsel for the Respondents:
Sri Shyamal Narain, Sri Siddharth Khare, Sri
Ajai Singh, Sri Ashok Khare (Sr. Advocate)

A. Service Law - Recruitment/Selection -
Apprentices Act, 1961 - Sections 18 & 22 -
Ordnance Factories Group C & D Industrial
Posts Recruitment Rules, 1994 - Schedule
to the Recruitment Rules, 1994 - Column
(11) of clause (5).

Recruitment on the post of "Semi-Skilled
Workman" is governed by the Recruitment
Rules, 1994. The vacancies of "Semi-Skilled
Workman" are liable to be filled in accordance
with the Recruitment Rules, 1994 r/w Section 22
of the Act, 1961. (Para 11, 13 to 16)

B. In direct recruitment for the post of
"Semi Skilled Workman" trade test as
prescribed is mandatory. The term "NonSelection Post" used in Column 5 of Clause
5 of the Schedule of the Recruitment
Rules, 1994 read with Column 11 clearly
establishes that the term "Non-Selection
Post" has been used in Column 5 for posts
to be filled by promotion/ transfer and
also by direct recruitment. The term "NonSelection Post" used in Column 5 has not been
used in a strict sense to indicate only for posts
to be filled by promotion/ transfer. Therefore,
posts to be filled by direct recruitments as
mentioned in Column 11 has to be filled
following
the
procedure
provided
in
the
Recruitment
Rules,
1994
read
with
the
aforequoted policy decisions and particularly
Annexure
to
the
policy
decision
dated
06.01.2011. (Para 11, 17 to 24)

C. Obligation on the St. - It has been well
settled 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
12 All. Union of India & Anr. Vs. C.A.T., Allahabad & Anr.
327
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. (Para 25)

The St. is the model employer. The obligation
casts on the St. under Article 39(a) of the
Constitution is to ensure that all citizens
equally have the right to adequate means
of livelihood. Therefore, appointment to a post
in government service or in the service of its
instrumentalities, can only be by way of a
proper selection in the manner recognized by
the relevant legislation in the context of the
relevant provisions of the Constitution. In the
name of individualizing justice, it is also not
possible to shut our eyes to the constitutional
scheme and the right of the numerous as
against the few who are before us. The
Directive Principles of St. Policy have to
be reconciled with the rights available to
the
citizen
under
Part
III
of
the
Constitution and the obligation of the St.
to one and all and not to a particular
group of citizens or class who in the
present set of facts are respondents
asserting for automatic employment in
the
Ordnance
Factory
where
they
completed
their
apprenticeship,
in
exclusion to other eligible candidates for
recruitment on the post of Semi-Skilled
Workman (Group 'C' posts), is against the
basic principles applicable for public
employment. (Para 28)

It is held in the present case, the respondentcandidates do not have any statutory right for
compulsory or automatic recruitment on the
post of "Semi-Skilled Workman" in the Ordnance
Factory where they have undergone apprentice
training under the Act, 1961 and merely
because they possess NCVT certificate. They
have a right to participate in the recruitment
process in terms of the Recruitment Rules, 1994
and the aforequoted policy decisions provided
they
fulfill
the
educational
and
other
qualifications required for direct recruitment as
prescribed in Column 8 of Clause 5 of Annexure
to the Recruitment Rules, 1994. (Para 11, 25 to
29)
D. Words and Phrases - 'preference' - Use
of the word 'preference' in clause 5(C) of the
Annexure
to
the
policy
decision
dated
06.01.2011
does
not
mean
that
trained
apprentices will have an exclusive right to the
exclusion of all others to be considered for
appointment. (Para 27, 30)

Apprentice trainees are also required to
participate in competitive examination or
test as may be provided by the rules of the
concerned
employers
in
respect
of
recruitments and when any of them is
found equal to a non-apprentice candidate
after
the
selection
test
then
only
preference is to be given in such a case to
the apprentice trainee. This protects the
possibility
of
meritorious
non-appearance
candidates from being discriminated vis-a-vis
apprentice trainee. (Para 26)

The field of choice cannot be limited only to
those who have undergone their apprenticeship
training... since that would patently violate
Article 14 and 16 of the Constitution of India
depriving those who have not undergone
apprenticeship
training
...of
an
equal
opportunity for applying for these posts. (Para
27)

E. The impugned order of the Tribunal
drawing inference of preference and
treating it as a right of the respondentcandidates to get employment as "SemiSkilled Workman" without facing selection
process to the exclusion of all others, is
incorrect, unsustainable and contrary to
the law laid down by Hon'ble Supreme
Court.

Legitimate Expectation - The inference
drawn by the Tribunal that on being selected
by National Council for Vocational Training to
award
certificate
under
the
Act,
1961,
candidates have legitimate expectation
and thus have preference in employment
over the direct recruits, in the Ordnance
Factory
where
they
undergone
apprenticeship. This finding of the Tribunal is
not referable to any of the provisions of the
Recruitment Rules, 1994. Use of the word
'preference' in clause 5(C) of the Annexure to
the policy decision dated 06.01.2011, provides
328 INDIAN LAW REPORTS ALLAHABAD SERIES
that in the selection process, other things being
equal, i.e. marks being equal, trained ex-Trade
apprentices of the recruiting Ordnance Factory
and sister Ordnance Factories shall be given
preference in the order in which they are St.d.

In other words, if two or more ex Trade
apprentices secure the same marks then
preference shall be given on the basis of
seniority and for this purpose the Ex-TA who
has passed NCTVT examination in earlier
batch (NCTVT) shall be senior to the Ex-TA
passed in subsequent batch. That apart, the
Central Government has now amended policy in
this regard by policy decision dated 09.05.2016 in
line with Section 22 of the Act, 1961 making
"Provision of granting five extra marks to Ex-Trade
Apprentices in the final merit list of the written
examination conducted for a total of 100 marks".
The advertisement being notifications dated
20.06.2015 to 26.06.2015 are not in conflict with
the Recruitment Rules, 1994 and the aforequoted
policy decision of the Ordnance Factory Board and,
therefore, the Tribunal has committed a manifest
error of law and fact to quash it. (Para 30)

All writ petitions are quashed. (E-4)

Precedent followed:

1. M. Sabarinathan Vs The General Ordinance
Factory & ors., Writ Appeal (MD) No. 316 of
2007, decided by Madras High Court (Madurai
Bench) on 14.12.2007 (Para 9(iii))

2. U.O.I. & ors. Vs M. Sabarinathan & ors.,
Special Leave to Appeal (Civil) No. 21454 of
2008, decided on 15.11.2010 (Para 9(iii))

3. Puneet & ors. Vs U.O.I. & ors., Writ Petition
(C) No. 26 of 2009, Judgment of Delhi High
Court dated 20.07.2010 (Para 10(iv))

4. Ajay Kumar Das Vs St. of Orissa, Civil Appeal
No. 4977 of 2009, decided on 31.07.2009 (Para
10(vi))

5. Vijay Singh Vs St. of U.P. & ors., 2004 (3)
UPLBEC 2789 (Para 10(vi))

6. Haryana Power Generation Corp. Ltd. & ors.
Vs Harkesh Chand & ors., (2013) 2 SCC 29
(Para 25)
7. Nanhey Singh & ors. Vs St. of U.P. & ors.,
Special Appeal (Defective) No. 110 of 2015,
decided on 06.02.2015 (Para 26)

8. Abdul Hamid & ors. Vs U.O.I. & ors., (2017)
11 SCALE 627; 2017 (16) SCC 346 (Para 27)

9. St. of Karn. Vs Uma Devi (3), (2006) 4 SCC 1
(Para 28)

Present
petitions
assail
order
dated
06.10.2016,
passed
by
Central
Administrative Tribunal Allahabad Bench,
Allahabad.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Krishna Agarawal and
Sri Lal Mani Singh, learned Central
Government Standing Counsel for the
petitioners and Sri Shyamal Narain, learned
Counsel for the respondents.

FACTS

2. Briefly stated the facts of the
present case are that all the private
respondents / candidates have completed
apprenticeship in different trades under The
Apprentices Act, 1961 (hereinafter referred
to as Act, 1961). Advertisement for direct
recruitment process (OPF/DR/2015A)
for Group ''C' posts was issued by the
Government
of
India,
Ministry
of
Defence, Indian Ordnance Factories,
Ordnance Parachute Factory, Napier
Road, Cantonment Kanpur in the month
of April, 2015, inviting applications for the
post of Tailor (ss), Machnist (ss), Fitter
General Machanic (ss), Carpenter (ss),
Fitter Electronic (ss), Examiner Clothing
(ss). In Clause 9 of the advertisement it has
been provided that the factories website
address is www.parachutekanpur.gov.in,
which
may
seen
by
the
intending
candidates for any purpose pertaining to
12 All. Union of India & Anr. Vs. C.A.T., Allahabad & Anr.
329
this recruitment process. In Claus11 and 24
of the advertisement, it was mentioned as
under:-

"11. All necessary information
pertaining to this Recruitment Process
including the FTA. OLAs. HCAs etc. and
also all required Links pertaining to
various activities of this Recruitment
Process / Selection Process shall be
displayed / available in the above Line /
Page from the required date and time
onwards and shall remain no displayed /
available for the prescribed periods only.

24.
It
is
emphasized
and
reassured to all intending Candidates that
the selection to these Posts shall be done
strictly based on the merit of the
Candidates
as
adjudged
from
their
performance in the Selection Process in a
fair and transparent manner. "

3. Looking into the advertisement, all
the petitioners of this batch of writ
petitions applied for the post advertised
for
recruitment
through
direct
recruitment process. The petitioners of
this batch of writ petitions, except the
petitioner of Writ-A No.11776 of 2017,
have
challenged
separately
the
advertisement issued by different Ordnance
Factories of the Ministry of Defence, which
are similar to the advertisement as noted
above.

4. Learned Counsel for the private
respondents / candidates states that the
candidate Aditya Kumar is respondent in
Writ A No.11776 of 2017 and Writ A
No.9563 of 2017 and he has neither applied
nor participated in the selection process.

5. All the respondents / candidates
filed Original Applications before the
Central Administrative Tribunal Allahabad
Bench,
Allahabad
which
have
been
disposed of by the impugned common
order dated 06.10.2016. In paragraph no.5
of the impugned common order, the
tribunal
has
noted
in
nutshell
the
controversy, as under:-

"what is the effect of Section 22
of the Act, 1961 as amended by Act 29 of
2014. w.e.f. 08.12.2014 and the SRO No.
185 of 1994, dated 01.11.1994."

6. The Tribunal considered the
controversy and held in paragraph no.11, as
under :-

"11. This order was adjudicated
before the Hon'ble High Court of Delhi in
the case of Puneet And Anr. Vs. U.O.I. and
Ors in W.P. (C) No.26/2009, dated
20.07.2010 in paragraph 10, 20 and 21 of
the judgment the bench observes that a
harmony has to be achieved of who have
successfully
undergone
apprenticeship
training are to be treated as senior to the
persons trained earlier and of those who
found suitable as other things being equal,
a trained apprentice should be given
preference
over
direct
recruits
and
thereafter the placement should be in
accordance with their seniority in the years
of completion of Apprenticeship course and
explaining the interpretation of the Hon'ble
Apex Court Judgment in the case of U.P.
State Road Transport Corporation's. In
paragraph 25 of the judgment the Hon'ble
High Court have explained that even in
granting preference it shall be on the basis
of seniority. Therefore, in the light of the
judicial
interpretation
we
have
also
examined this issue. It appears to us also
that the SRO 185 will reign supreme and
the amendment of Section 22 must be
understood in the light of SRO 1994 and
not in spite of it. Therefore, all the
330 INDIAN LAW REPORTS ALLAHABAD SERIES
notifications
dated
20.06.2015
to
26.06.2015 which are issued contrary to
the words of SRO 1994 are hereby
quashed. The respondents shall offer
appointment
in accordance
with
the
seniority list and merit to the Apprentice
and only if there is a vacancy, following
this then only they will be eligible to entitle
for call for a direct recruitment. "

7. Aggrieved with the impugned
common order, the petitioners i.e. Union
of India has filed the present writ
petitions.

8. Since, with the consent of the
learned Counsel for the parties, the writ
petition being Writ A No.11776 of 2017 is
treated as the leading writ petition,
therefore, the relief sought therein, is
reproduced below:-

"(i) Issue a writ order, a direction
in the nature of certiorari quashing the
impugned order dated 06.10.2016, passed
by the Hon'ble Central Administrative
Tribunal, Allahabad in OA No.330/00801
of 2016, Aditya Kumar vs Union of India
and others (Annexure No.1 to this writ
petition).

(ii) Issue a writ order, direction
in the nature of mandamus to not to
interfere in process of selection under the
advertisement.

(iii) Issue any suitable writ order
or direction with this Hon'ble Court may
deem
fit
and
proper
under
the
circumstances of the present case.

(iv) Award Cost."

SUBMISSIONS

9. Learned Central Government
Standing Counsel for the petitioners
submits as under :-

(i) The respondent / candidates
having passed apprenticeship under the
Act, 1961 do not have any right to get
employment automatically, unless they go
through the recruitment process for direct
recruitment as per SRO No. 185 of 1994.
Therefore, the Tribunal has committed a
manifest error of law to quash the
advertisement and to direct the petitioners
herein
to
offer
appointment
to
the
respondents in accordance with seniority
list and merit to the apprentice and if still
there is a vacancy, then only appointment
can be made by direct recruitment.

(ii)
The
Tribunal
although
admitted
that
recruitment
by
direct
recruitment process may be made and yet
illegally and without reference to any
statutory
provisions
directed
to
give
necessarily employment to the respondents
/ candidates who completed apprenticeship
under the Act, 1961. Thus, tribunal has
directed for automatic appointment to each
candidates
having
completed
apprenticeship under the Act, 1961, which
is wholly illegal and contrary to the
provisions of Section 18 and 22 of the Act,
1961 as well as the SRO 1994.

(iii) After the judgement in the
case of M. Sabarinathan vs. The General
Ordnance Factory and others in Writ
Appeal (MD) No. 316 of 2007 decided by
Madras High Court (Madurai Bench) on
14.12.2007 which was affirmed by Hon'ble
Supreme Court in Special Leave to Appeal
(Civil) No.21454 of 2008 (Union of India
and others vs. M. Sabarinathan and others)
decided on 15.11.2010 dismissing the SLP,
a decision was taken by the Central
Government to make appointments by
direct recruitment and candidates who have
completed apprenticeship under the Act,
1961, shall be given preference. Therefore,
the
advertisements
in
question
were
withheld and the selection process was not
12 All. Union of India & Anr. Vs. C.A.T., Allahabad & Anr.
331
proceeded with and a new policy decision
was taken on 09.05.2016.

(iv) Thus, the appointments are
now to be made by direct recruitment in
which
those
candidates
who
have
completed apprenticeship under the Act
1961 would be granted weightage of five
extra marks. Because of the pendency of
writ petitions, the recruitment process
could not be carried further and the entire
recruitment process is withheld.

(v) The SRO 185 of 1994, dated
01.11.1994 provides for recruitment for
non-selection post, by three modes, firstly
by promotion, secondly by transfer and
thirdly by direct recruitment. It does not
provide for automatic appointment of
candidates
who
have
completed
apprenticeship under the Act, 1961. The
posts advertised are such which could not
be filled either by promotion or by transfer
and
therefore,
the
advertisement
for
appointment by direct recruitment was
made.

(vi) Column 12 of Clause 5 of the
SRO 185 of 1994 provides for person in
unskilled trade to pass trade test. Note 6 of
the SRO provides the term trade test will
include written, oral, practical examination,
aptitude test, interview and also statutory
qualification test. Thus, as per SRO 185 of
1994 the trade test is mandatory.

(vii) The real grievance of the
respondents / candidates is that they
completed training in the ordnance factory
and were awarded National Apprenticeship
Certificate by the National Council of
Trade Vocational Training. Therefore, they
must be given employment in exclusion to
others who have completed training in
other
factories.
This,
claim
of
the
respondents/candidates amounts to breach
of Article 14 and 16 of the Constitution of
India on one hand and on the other hand
requires automatic employment on mere
completion of apprenticeship in conflict
with the provisions of Sub-Section (2) of
Section 22 of the Act, 1961.

10. Learned Counsel for the
respondents / candidates submits as
under :-

(i) Recruitment Rules is the
SRO 185 of 1994. The respondents issued
several circulars being circular dated
07.10.2013 and 09.05.2016 etc. which is in
conflict the aforesaid recruitment Rules.
The respondents / candidates filed O.A.
mainly for the relief that the recruitment
should be made on the advertised posts,
strictly in accordance with SRO 185 of
1994. It is not the case of the respondents
/
candidates
that
they
should
be
appointed as a matter of right on
account of possessing apprenticeship
certificate issued by NCVT. By the
impugned order, the Tribunal has merely
granted
the
relief
by
quashing
the
advertisements
published
between
20.06.2015 to 26.06.2015 being contrary to
the SRO 185 of 1994 and directed the
respondents to enforce SRO 185 of 1994.

(ii) The only attack in the present
writ petitions which can be made by the
petitioners is the findings of the tribunal
that
"the
respondents
shall
offer
appointment
in
accordance
with
the
seniority list and merit to the apprentice
and only if there is a vacancy, following
this than only they will be eligible to entitle
for call for a direct recruitment."

(iii) The aforesaid direction of the
tribunal in the impugned order is valid for
the following reasons :-

(a) Clause 5 of the Rules, 1994
provides for recruitment of semi skilled
workmen (List of trades at Annexure-A and
B). It is a non-selection post. In Column 11
method of recruitment has been provided to
332 INDIAN LAW REPORTS ALLAHABAD SERIES
be 80% by transfer failing which by direct
recruitment and 20% by promotion. Since
the recruitment Rules i.e. SRO 185 of 1994
provides for recruitment on the post in
question as a non-selection post, therefore,
even if some posts are left after transfer, it
has to be filled in the manner as provided
under the Rules and not by way of open
competition.

(b) Since the Rules, 1994 i.e.
SRO 185 of 1994 does not provide for
recruitment on semi skilled posts by open
competition,
therefore,
the
petitioners
possessing apprenticeship certificate issued
by NCVT are not required to face open
competition
in
the
absence
of
any
provisions in recruitment rules. Therefore,
to fill the posts by open competition shall
be in contradiction to the nature of posts
i.e. non-selection posts. Therefore, the
respondents / candidates are entitled to be
appointed
as
per
seniority
list
of
apprentices
who
hold
apprenticeship
certificate after completion of training in a
particular ordnance factory in accordance
with seniority list maintained by training
factories.

(c) Column 8 (5) provides for
academic qualification limited to NCVT
certificate in the relevant trade failing
which ITI or equivalent diploma/certificate
as well as degree. Therefore, no further
qualification or test or competition is
required under the rules for recruitment of
semi skilled workmen.

(iv) Reliance is placed upon the
judgement of Delhi High Court dated
20.07.2010 in Writ Petition (C) No. 26 of
2009, Puneet and others vs. Union of India
and others, (Paragraphs 15 and 18 to 25).

(v) The judgement relied upon by
the petitioners are totally distinguishable on
facts of the present case inasmuch as in
those cases, the recruitment rules itself
provide for open competition whereas the
present set of rules i.e. SRO 185 of 1994
does not provide for any open competition
for recruitment on the post of semi skilled
workmen. Therefore, the rules which hold
the field cannot be overridden by circular
issued by the authorities.

(vi) Reliance is placed upon the
judgement of Hon'ble Supreme Court in the
case of Ajay Kumar Das vs. State of Orrisa,
(Civil Appeal No.4977 of 2009), decided
on 31.07.2009 (Paragraph 10), which laid
down the law that statutory rules framed in
exercise of powers conferred under Article
309(1) of the Constitution of India can be
amended only by the rule making body
exercising
the
powers
under
the
constitution and not otherwise. Similar
principles have been laid down by full
Bench decision of this Court in Vijay Singh
vs. State of U.P. and others, 2004 (3)
UPLBEC 2789 (Paragraphs 6, 7, 8, 9, 10,
11).

(vii) If a thing is required to be
done in a particular manner that can be
done in that manner alone and in no other
manner. Therefore, the Government has the
power to amend the recruitment rules, 1994
but the authorities cannot override it by
issuing circulars. Therefore, since the
recruitment Rules, 1994 is amended, it
shall continue to hold the field. Therefore,
the OFB circular dated 17.10.2013 and the
Ministry of Defence letter dated 09.05.2016
(Annexure-8 and 9 respectively) being in
conflict with the recruitment Rules, 1994
deserves to be ignored.

11. Having heard learned Counsel for
the parties, the following questions are
framed
with
their
consent
for
determination :-

(a) Whether the recruitment on
the post in question i.e. "Semi-Skilled
Workman" is governed by the provisions of
12 All. Union of India & Anr. Vs. C.A.T., Allahabad & Anr.
333
the Ordnance Factories Group C & D
Industrial Posts Recruitment Rules, 1994
notified by S.R.O. 185 of 1994 dated
01.11.1994 in exercise of powers conferred
by
proviso
of
Article
309
of
the
Constitution of India?

(b) Whether posts termed as
"Non-Selection Post" in Clause (5) of the
Ordnance
Factories
Group
C
&
D
Industrial Posts Recruitment Rules, 1994
includes vacancies to be filled by direct
recruitment
and
whether
for
direct
recruitment, Trade Test is mandatory?

(c) Whether under the facts and
circumstances of the case, the respondentcandidates have any statutory right to be
recuited on "Semi-Skilled Posts" merely on
the basis of NCVT (Natoinal Council for
Vocational Training) Certificate, without
any competetive test?

(d) Whether under the facts and
circumstances of the case, the impugned
order of the Tribunal is valid?

Discussion and Findings:-

12. We have carefully considered the
submissions of learned counsels for the
parties and perused the record of the writ
petitions.

13. Undisputedly the respondentcandidates
possess
NCVT
certificates
acquired by them under the Apprentices
Act, 1961 (hereinafter referred to as 'the
Act, 1961"). To obtain the aforesaid
certificates, they have completed their
training in the Ordnance factories in
question. They are prospective candidates
for the post of "Semi-Skilled Workman" of
the trades specified in Annexure-A of the
Ordnance
Factories
Group
C
&
D
Industrial Posts Recruitment Rules, 1994
(hereinafter referred to as "the Recruitmet
Rules, 1994"). It is admitted case of the
respondent-candidates that recruitment on
Group "C" Posts of Semi Skilled
Workman in trades of Annexure ''A' is
governed by Clause (5) of the Schedule to
The Recruitment Rules, 1994 read with the
Notes appended thereto. The Schedule
appended to the Rules, 1994 contains six
clauses. Clause (1) relates to recruitment
on the post of Master Craftman. Clause (2)
relates to recruitment on the post of highly
Skilled Grade Workman (List of trades at
Annexure A & B). Clause (3) relates to
recruitment on the post of highly skilled
Grade II Workman (List of trades at
Annexure A & B). Clause (4) relates to
Skilled
Workman
(list
of
trades
at
Annexure A and B). Clause (5) relates to
recruitment of Semi-Skilled Workman
((List of trades at Annexure A & B).
Clause (6) relates to recruitment on the
post of unskilled workman.

14.

To
appreciate
the
rival
submissions of parties, it would be
appropriate to reproduce the relevant
portion of the aforesaid Rules, 1994,
Clause (5) of the Schedule and ''Notes'
appended to the Rules, as under:-

"S.R.O. 185.-In exercise of the
powers conferred by the proviso to article
309 of the Constitution and in supersession
of the Ordnance Factories Group C and
Group D Industrial posts Recruitment
Rules, 1989, except as respects things done
or omitted to be done before such
supersession, the President hereby makes
the following rules regulating the method
of recruitment to the posts of industrial
employees in Group C and Group D in
Ordnance
Factories
and
Ordnance
Equipment and Clothing Factories and
other offices establishments under the
Ordnance
Factories
Organisation,
namely:-
334 INDIAN LAW REPORTS ALLAHABAD SERIES

Short title and commencement.-
(1) These rules may be called the
Ordnance Factories Group C and Group
D Industrial Posts Recruitment Rules,
1994.

(2) They shall come into force on
the date of their publication in the Official
Gazette.

Application-These
rules
shall
apply to the posts specified in column 1 of
the Schedule annexed to these rules. The
trades and grade of these posts shall be as
per the Aunnexures A and B of the said
Schedule.

Number, classification and scale
of pay.-The number of the said posts, their
classification and the Scales of pay
attached thereto shall be as specified in
columns 2, 3 and 4 respectively of the said
Schedule.

Method of Recruitment, age
limit, qualifications etc.- The method of
recruitment to the said posts, age limit,
qualifications
and
other
matters
connected herewith shall be as specified
in the columns 5 to 14 of the aforesaid
Schedule.

Disqualification:
.............................................

Power
to
relax.-Where
the
Central Government is of the opinion that it
is necessary or expedient to do so, it may
by order, for reasons to be recorded in
writing, relax any of the provision of these
rules with respect to any class or category
of persons.

Saving.-Nothing in these rules
shall affect reservations, relaxation of age
limit and other concessions required to be
provided for the Schedule Caste, the
Schedule Tribes, Ex-Serviceman and other
special categories of persons in accordance
with the orders issued by the Central
Government from time to time in this
regard.
Clause (5) of the Schedule:

1
Name of
post
2
No. of
post
3
Classifi
cation
4
Sc
ale
of
pa
y
5
Whet
her
Selec
tion
or
Nonselec
tion
post
6
Wheth
er
benefit
of
added
years
of
service
admiss
ible
under
rule 30
of the
Centra
l Civil
Service
s
(pensio
n)
Rules,
1972
Semiskilled
workman
(list
of
trades at
Annexure
A and B)
16005*
(1994)
*Subje
ct
to
variati
on
depend
ent on
worklo
ad
Civilia
n
in
Defenc
e
Service
, Group
'D'
Industr
ial
Rs.
80
015
-
10
10
-
EB
-
20
-
11
50
Nonselec
tion
post
Not
applica
ble
7
Age limit
for direct
recruits
8
Educat
ional
and
other
qualifi
cations
require
d for
direct
recruit
s
9
Wheth
er age
and
other
educati
onal
qualifi
cations
prescri
bed for
direct
recruit
s will
apply
in the
case of
promot
ees
10
Pe
rio
d
of
pr
ob
ati
on
if
an
y
11
Method of
recruitment
whether by
direct rectt. or
by promotion
or by
deputation/
transfer and
percentage of
the vacancies to
be filled by
various
methods
30 years
(a. (i)
For
the
Trades
No
Fo
r
Pr
om
(i) For trades
listed
at
Annexure
A80% by transfer
12 All. Union of India & Anr. Vs. C.A.T., Allahabad & Anr.
335
at
Annex
ure A
Nation
al
Counci
l
of
Trades
for
Vocati
onal
Traini
ng
Certifi
cate in
the
relevan
t trade
failing
which
by ITI
or
equival
ent
Diplom
a/
Certifi
cate
holder
ote
es:
Nil
Fo
r
dir
ect
rec
rui
ts:
2
ye
ars
failing
which
by
direct
recruitment.
20%
by
promotion
for
each
trade
including allied
trades
after
adjustment
of
surplus
(ii) For trades
listed
at
Annexure
B100%
by
promotion
for
each
trade
including allied
trades
after
adjustment
of
surplus
and
transfers.
In
any trade (such
as new trade on
failure
of
recruitment by
promotion
by
transfer failing
which by direct
recruitment
12
In case of rectt. by
promotion/
deputation/transfer,
grades from which
promotion/
deputation/ transfer
to be made
13
If a DPC
exists, what is
its
composition
14
Circumstances
in which UPSC
is to be
consulted in
making
recruitment
Promotion:
From
persons in the unskilled grade in the
pay scale of Rs. 75012-870-EB-14-940
having a minimum
regular service of 3
years
and
on
passing trade test
and on acquiring
statutory
qualifications
where required.
Transfer:
On
passing the trade
test
and
on
acquiring statutory
qualifications where
required
Not
applicable
Not applicable
.....................

Note 1 :The number of posts
indicated in Column 2 in the Schedule are
subject
to
variation
dependent
on
workload.

Note 2: The age limits indicated
under
Column
7
are
relaxable
for
Government
servants,
upto
35
in
accordance with the instructions or order
issued by the Government of India.

Note 3 : Wherever the words
"adjustment of surplus" occur in Column
11 of this Schedule it shall mean
appointment in public interest by the
Management of persons already holding
posts
same
or
identical
or
nearly
equivalent scale of pay in any factory or
office or anywhere in the Ordnance
Factories
Organisation
whom
it
is
necessary to adjust in the posts in the
exigencies of service consequent on the
persons or the posts held by them being
found surplus by the Management.

Note 4 : Wherever the word
"Transfer" occurs in Column 11 or 12 of
this Schedule it shall include transfer in
public interest by the Management of
persons (already holding posts in the same
or identical or nearly equivalent scale of
pay) to posts in the same factory or office
in the Ordnance Factories Organisation
and also Transfer within the same factory
or office at the request of the person
concerned
where
agreed
to
by
the
Management. The Transfers in public
interest will include Transfers from one
grade, interse promotions from another
grade where from two different grades. The
transfer in public interest will also include
filling of posts by transfer of persons
holding post from which there is no
promotion to any other posts or grade
whether or not such posts are declared
equivalent posts and such appointments by
transfer may be made prior to filling of
posts by promotion from other grades or by
direct recruitment. The transfer in public
interest will also include Transfer of
336 INDIAN LAW REPORTS ALLAHABAD SERIES
persons in the Trades to be abolished or
merged with other trades on administrative
grounds.

Note 5 : The term "Deputation"
shall mean deputation for specified period
in
accordance
with
orders
of
the
Government in-force from time to time and
in the exigencies of service, the Ordnance
Factory Board or the General Manager of
the factory may, in the public interest, take
suitable persons from outside the Ordnance
Factories Organisation on deputation to
any of the posts specified in this Schedule.

Note 6: Wherever "trade test" is
laid down in Column 12 of this Schedule
such trade test shall be prescribed by the
General Manager of the factory or the
Ordnance Factory Board. The term
"Trade test" will include written, oral and
practical examination and aptitude test
and
interview
and
also
statutory
qualification test where applicable.

Note 7 : Wherever the words
"Penal prepared by relevant Departmental
Promotion Committee" occur in Column 11
and recruitment is to be made by selection
the words shall mean preparation of panel
purely on the basis of merit by reference to
confidential reports/ performance reports,
if no confidential reports are prescribed
and/ or by reference to results of a trade
test.

Note 8 : Promotion indicated in
Columns 11 and 12 of this Schedule will
normally be from feeder grade indicated
as Column 12 but where two or more
Factories Organisation "allied trades" or
"allied grades" by the General Manager of
the factory or Ordnance Factory Board
selection for promotion will he made from
common seniority list of eligible persons in
the allied grades or allied trades.

Note 9 : The words "equivalent
posts" and its variants in these rules will
mean any posts in some or identical scale
of pay as another posts in the same or
another category and which posts the
Ordnance Factory Board or General
Manager of factory may declare as
equivalent
posts
and
they
will
be
considered to be interchangeable or stroke
(/) appointments.

Note 10: In relation to prescribed
qualifications under Column 8 of this
Schedule
the
question
whether
a
qualification is equivalent to the prescribed
qualification for any post shall be decided
by the Ordnance Factory Board.

Note 11: For the purpose of these
rules, the Ordnance Factory Board may
authorise any Member of the Board or an
Additional Director General Ordnance
Factories to exercise any or all its powers
on its behalf and it shall he deemed to have
been exercised by the said Board.

Note 12 : In these rules the term
"General Manager of the Factory" and its
variations shall include Senior General
Manager, Additional General Manager,
Officer-in-Charge, Officer in temporary
charge of the factory and Director of Staff
College and heads of other establishments
declared by Ordnance Factory Board to be
equivalent to General Manager of Factory.

Note 13: Wherever any age limit
is laid down in Column 7 of this Schedule
the crucial date for determining the age
limit shall be the closing date for receipt of
applications from candidate in India (from
Andaman
and
Nicobar
Islands
and
Lakshadweep). In respect of posts the
apointment to which are made through the
Employment Exchanges the crucial date for
determining the age limit, in each case, will
be the last date upto which the Employment
Exchanges are asked to submit the names.

Note 14 : Wherever any condition
of a minimum service is laid down in
Column 12 of this Schedule and a junior
employee is considered for selection by
12 All. Union of India & Anr. Vs. C.A.T., Allahabad & Anr.
337
virtue of his satisfying the said minimum
serivce condition all persons senior to him
who have completed probationary period
shall also become eligible for consideration
for selection notwithstanding that they may
not satisfy the said minimum service
condition.

Note 15 : In the exigencies of the
service within the total number of posts in
the same scale of pay (Grade) the
Ordnance Factory Board may add to the
number of trades or sub-divide, abolish or
merge any trade mentioned in Annexure A
and B to this Schedule or add to and reduce
number of posts in different trades on same
scale of pay from time to time on the basis
of changes in functional requirements.

Note 16 : The incumbents of posts
in this Schedule are normally liable for
service in the same factory or office in the
Ordnance
Factories
Organisation but
without prejudice to the right of the
Management, in the public interest, to
transfer them to equivalent posts in any
other factory or office in the Ordnance
Factories Organisation."

15. Sections 18 and 22 of the
Apprentices Act, 1961 would be relevant to
be considered, which are reproduced
below:

"Section 18: Apprentices are
trainees and not workers.- Save as
otherwise provided in this Act,-

(a) every apprentice undergoing
apprenticeship training in a designated
trade in an establishment shall be a trainee
and not a worker; and

(b) the provisions of any law with
respect to labour shall not apply to or in
relation to such apprentice.

Section
22:
Offer
and
acceptance of employment - (1) Every
employer shall formulate its own policy
for recruiting any apprentice who has
completed the period of apprenticeship
training in his establishment.

(2) Notwithstanding anything in
sub-section (1), where there is a condition
in a contract of apprenticeship that the
apprentice shall, after the successful
completion of the apprenticeship training,
serve the employer, the employer shall, on
such completion, be bound to offer
suitable employment to the apprentice,
and the apprentice shall be bound to serve
the employer in that capacity for such
period and on such remuneration as may
be specified in the contract:

Provided that where such period
or remuneration is not, in the opinion of the
Apprenticeship Adviser, reasonable, he
may revise such period or remuneration so
as to make it reasonable, and the period or
remuneration so revised shall be deemed to
be the period of remuneration agreed to
between the apprentice and the employer.

Note: The aforequoted Section 22
was substituted by Act 29 of 2014 w.e.f.
22.12.2014."

Question No. (a) Whether the
recruitment on the post in question i.e.
"Semi-Skilled Workman" is governed by
the provisions of the Ordnance Factories
Group
C
&
D
Industrial
Posts
Recruitment Rules, 1994 notified by
S.R.O. 185 of 1994 dated 01.11.1994 in
exercise of powers conferred by proviso
of Article 309 of the Constitution of
India?

16. It is admitted case of the parties
that recruitment on the post of "SemiSkilled Workman" is governed by the
Recruitment Rules, 1994.