P.G. Agarwal, J.
1. This writ appeal is directed against the judgment and order passed on January 27, 1999 by the learned single Judge in Civil Rule No. 3883/97.
2. The writ petitioner Sri Lohit Chandra Gogol, hereinafter referred to as 'the petitioner', is a Science Graduate and since 1994 he is knocking the doors of the appellant Indian Oil Corporation Ltd. to get an appointment to earn his livelihood. The petitioner was engaged as Trainee Apprentice with effect from November 23, 1992 for a period of 18 months with the Indian Oil Corporation Ltd., hereinafter referred to as 'IOC'. The petitioner completed his training programme on May 22, 1994. The IOC issued an employment notice for filling up 9 (nine) posts of Chemical 'D' Operators and the petitioner applied, for the same through Employment Exchange and also appeared in the written examination. However, the petitioner was not called for interview whereupon the petitioner approached this Court along with one Bakul Deka in Civil Rule No. 349/1995. As per the interim order passed in the said Civil Rule both the petitioners were allowed to be interviewed for the said post by the IOC and two posts were kept reserved for them. However, the said Civil Rule was ultimately dismissed and the petitioner along with said Sri Bakul Deka preferred a writ appeal (Writ Appeal No. 436/1995). The said writ appeal was disposed of with the following directions:
'This Court already dealt with a similar matter in Writ Appeal No. 569 of 1996. In the light of the aforesaid decision and in the light of the directions of the Supreme Court, the respondents are now directed to consider the cases of the appellants. The respondents are accordingly to take appropriate steps for training the appellant No. 1 for another 18 months so that he completes the statutory period of training of three years. Since, the appellant No. 2 is already qualified and trained, the respondents shall take steps for considering his case for being appointed as Chemical 'D' Operator in one of the two vacancies which are kept reserved by the order of this Court. The other vacancy which is also kept reserved shall remain vacant till completion of the training of the appellant No. 1'.
3. It may be mentioned here that although the petitioner appeared in the interview as per the interim order of the Court, he was not found suitable by the Interview Board and accordingly he was not selected. So far the other appellant Bakul Deka is concerned, we are not concerned in this writ appeal. As per the direction in the said writ appeal, the IOC constituted a Committee for considering the cases of the petitioner and the petitioner appeared before the Committee on May 17, 1997. The Committee, however, found the petitioner not fit for appointment for the post of Chemical 'D' Operator. The petitioner thereafter again approached this Court in Civil Rule No. 3883 of 1997 and after hearing both sides the learned single Judge allowed the writ petition. The relevant portion of the directions reads as follows:
'As per the spirit of the Act and in the light of the decision referred to above a trained apprentice on successful completion of training is not required to appear in the examination even if provided by regulations or contractual stipulations. In that view of the matter, respondents fell into error in insisting for clearing of further test and not appointing the person on the alleged ground of unsatisfactory performance. Therefore, the impugned action of the respondents deferring appointment to the petitioner cannot be sustained. The respondents are directed to consider the case of the petitioner for appointment as indicated in the earlier judgment dated March 27, 1997 of this Court and in conformity with the directions and observations made above. Respondents are directed to complete the, exercise within one month from today. Petition is disposed of.'
Feeling aggrieved, the IOC preferred the present appeal.
4. We have heard Mr. K.N. Choudhury, learned counsel for the appellant IOC and Mr. A.K. Bhattacharyya, Senior counsel appearing for the respondent/petitioner.
5. The bone of contention in this writ appeal is whether the petitioner, a successful trainee apprentice of the Corporation, is required to appear in any competitive examination or test for his appointment in the said Corporation, or gets a right to be appointed in a post straightaway without subjecting himself to any examination or test through which selection is made.
6. There is no dispute about the fact that the petitioner is a trainee apprentice of the Corporation and he has successfully completed training period. Relying on a decision of the Apex Court in the case of U.P. State Road Transport Corporation and Anr. v. U.P. Paribahan Nigam Shishuks Berozgar Sangh and Ors., reported in (1995-II-LLJ-854) (SC), hereinafter referred to as UPSRTC case, the learned single Judge held that having undergone apprenticeship-training the petitioner ought not to have subjected to written test as well as oral interview for the purpose of recruitment. In para 12 of the UPSRTC case (supra) the Supreme Court laid down the following stipulations/guidelines:
'In the background of what has been noted above, we state that the following would be kept in mind while dealing with the claim of trainees to get employment after successful completion of their training:
(1) Other things being equal, a trained apprentice should be given preference over other direct recruits;
(2) For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India v. N. Haragopal, (1987-I-LLJ-545) (SC) would permit this.
(3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the service rule concerned. If the service rule be silent on the aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given.
(4) The training institute concerned would maintain a list of persons trained yearwise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are seniors.'
7. The above decision was the subject-matter for consideration/interpretation before the Division Bench on this Court in Writ Appeal No. 436/1995 and also in the case of Oil India Ltd. Apprenticeship Trainee Union v. Oil India Ltd. and Ors. 1997 (3) GLT 394 and the Division Bench made the following observations:
'Upon hearing the learned counsel for the parties and after examination of all aspects of the matter we are of the view that the trained apprentices on successful completion of their training are not required to appear in the examination, if any, provided by the Regulations of contractual stipulations. In addition to the directions issued by the learned single Judge the respondents, while considering the cases of the trainees for providing employment, shall follow its own regulation but shall not insist upon the trainee-apprentices to appear in any written examination. The respondents are also directed to act: accordingly and fill up the existing as well as future vacancies in conformity with the law.'
8. Shri K.N. Choudhury, learned counsel for the appellant has submitted that in UPSR-TC (supra) case the Supreme Court did not lay down any law regarding non-holding of written examination or test for the apprentice trainees in para 12 as quoted above and the observations in para 13 were in respect of the case which was before the Apex Court. So far as the case at hand -are concerned, the relevant observations are in the following words:
'........ We make it clear that while considering the cases of the trainees for giving employment in suitable posts, what has been laid down in Service Regulations of the Corporation shall be followed except that the trainees would not be required to appear in any written examination, if any, provided by the Regulations.'
9. We are of the considered view that para 13 cannot be read in isolation, but it has to be read together with para 9 wherein it is stated that the Regulations of the said Corporation did not require an apprentice to undergo any written examination for selection. Moreover, the said observations were in respect of the particular case only and the Apex Court did not make any general law that the apprentices are not required to undergo any written examination. The guidelines have been laid down in para 12 as quoted above and the said para 12 does not provide that the apprentice cannot be subjected to written test and oral interview. As we know, the Apprentices Act, 1961 was enacted to ensure training of the persons to improve their employment potential in the backdrop of increasing demand for skilled craftsman. There was no obligation on the part of the employer to offer any employment on completion of the training nor it is obligatory on the part of the apprentice to accept employment under the employer. The decision of the Apex Court in UPSRTC (supra) was construed by the Andhra Pradesh High Court in the case of A. Suresh Babu v. A.P. State Electricity Board. The Andhra Pradesh High Court observed as follows:
'20. As discussed above, the endeavour of the Legislature in bringing out the Apprentices Act, 1961 is to see that the unemployed qualified candidates would get training which would enable them to improve their employment potential. If the contention of the counsel for the petitioner that trained apprentices shall not be subjected to written test and oral interview, is to be accepted, it would amount to a special category and making reservation for that category. In other words, employment is assured to every trained apprentice without any competition from any quarter, By all means, this would not be the intention of the Supreme Court. What the Supreme Court has laid down in the said decision is that preference could be given to a trained apprentice over the direct recruits, if other things being equal. In this case as the petitioner has failed even to secure the minimum percentage of marks either in written test or in oral interview, his standing on par with other candidates did not arise at all and as such no preference could be given to him over other candidates.'
10. The Allahabad High Court had occasion to consider the decision of the Apex -Court in the case of Manoj Kumar Mishra v. State of U.P., reported in 1997 2 CLR 617. Relying on the earlier decision of a Division Bench of the said High Court in the case of Ganga Ram v. State of U.P. in Special Appeal No. 77(S/s) of 1995, held that the observation in para 13 in UPSRTC (supra) were made only with regard to the case in hand and no direction can be given that a person who has completed apprenticeship training will not be required to appear in any examination.
11. Now coming to the facts of the present case, we find that the petitioner had appeared in the written examination and admittedly his marks were below the cut off marks and he was not called for interview. However, as per direction of this Court the petitioner was allowed to appear in the interview along with other candidates. The petitioner accordingly appeared in the interview, but he was not selected. In the earlier Writ Appeal the petitioner was given another opportunity to appear before the Committee for considering his case for appointment and this Committee also did not find the petitioner to be fit for appointment. In his usual fairness, Senior Advocate Shri Bhattacharyya has submitted that he is not advocating that the petitioner on successful completion of his training be appointed straightaway and the IOC has got no right to conduct any test to judge the eligibility and competence of the petitioner. Concurring with the view points of the Allahabad High Court and Andhra Pradesh High Court, we hold that in UPSRTC case the Supreme Court did not lay down any law prohibiting the employer from holding any written test or other test for judging suitability, competence or merit of the trainee apprentice for the post. Holding of written examination and other tests will be dependent on the provision of the respective rules and regulations of appointment.
12. Learned counsel for the petitioner has submitted that the petitioner was not selected as he was not given due credit for the experience gained by him while undergoing training and as such the selection process suffers from arbitrariness. The records of the selection test have been produced before us on behalf of the appellants and we have perused the same. The minutes of the first Selection Committee held on January 31, 1995 and February 1, 1995 for the post of Chemical 'D' Operator shows that all together 74 candidates including the petitioner were interviewed. Although the petitioner and Shri Bakul Deka were originally not selected for the interview, they were allowed to appear in the interview in pursuance of the orders of this Court as stated above. For the purpose of verification we have ignored the marks obtained by all the candidates in the written examination. The marks for viva voce were allotted under three heads - (1) physical fitness, (2) experience and technical knowledge and, (3) personality and presentation. Comparing to the selected candidates and many more, this petitioner got very low marks under the above three headings. It is submitted by the learned counsel for the appellant that even three other apprentice trainees (who are not selected for any appointment) got higher marks than the petitioner. It may be mentioned here that for 9 posts, 5 numbers of apprentice trainees were duly selected and appointed. Relying on the observations of the Constitution Bench of the Apex Court in Ajay Hasia v. K.M. Sherewardi, (1981-I-LLJ-103) (SC) the learned counsel for the petitioner submits that in the matter of public employment the oral, interview/test is not a very satisfactory test for assessing and evaluating the capacity and suitability of a candidate. Shri K.N. Choudhury on the other hand, submits that Ajay Hasia (supra) was explained and distinguished by the Apex Court in a later decision in the case of Madanlal and Ors. v. State of Jammu & Kashmir AIR 1995 SC 1088. In the instant case, the written test was done away with and as such there was no other alternative but the viva voce test to evaluate the merit of the candidate.
13. In compliance of the order of the Division Bench in Writ Appeal No. 436/1995 the petitioner was again called for interview on May 17, 1997 and this time the petitioner was the only candidate who was interviewed. As prayed for by the learned counsel for the petitioner, we have checked the credentials of the members of the Selection Committee and find that both the Selection Committees were manned by persons of equal or similar status. The First Selection Committee consists of 5 members and they were in the rank of (1) Deputy Director of Employment, (2) Deputy General Manager (G), (3) C.P.N.M. (4) C.H.R.M. (5) C.M.O., and SC/ST representative. The second Selection Committee also consists of 5 members of the above rank and status. The Second Committee also interviewed the petitioner and gave different marks under different headings and: the total marks obtained by the petitioner were found below the qualifying marks. As per the order of this Court two posts were kept vacant to accommodate the petitioner and another, in case the decision in the writ petition goes in favour of the petitioners. Admittedly, the petitioner was the only candidate who was interviewed, but he was not found fit for appointment On consideration of materials produced before us we find no infirmity or irregularity in the selection process adopted by the appellant IOC for filling up the post of Chemical 'D' Operator.
14. Learned counsel for the petitioner has further submitted that the present case is a case of malice in law on the part of the IOC and has referred to the decision of the Apex Court in the case of Smt. S.R. Venkatamman v. Union of India and Ors. (1979-I-LLJ-25) (SC). In view of our foregoing discussion and decision we are of the view that the IOC has acted fairly and from their actions no case of malice in law has been made out.
15. In the light of above observations and in the facts and circumstances of the case, we hold that the petitioner is not entitled to appointment to the post of Chemical 'D' Operator notified in the year 1994. The petitioner will be, however, at liberty to apply for future vacancy, if otherwise eligible.
16. The appeal is allowed and the impugned order is set aside. No costs.