S.H.A. Raza and Bhagwan Din, JJ.
1. The petitioner after obtaining a degree of Bachelor in Engineering underwent the course of apprenticeship under the Apprentices Act in the Public Works Department. In pursuance of Notification No. Al/B-3/96-97 for recruitment of Assistant Engineers (Civil), the petitioner appeared in the examination but the result of the same is not being declared.
2. The contention of the petitioner is that neither the Public Service Commission has made its recommendations nor the appointment on any post in the Public Works Department has yet been made.
3. Placing reliance upon a decision of the Hon'ble Supreme Court in U. P. State Road Transport Corporation and another v. U. P. Pariwahan Nigam Shikshak Berojgar Sangh and others, JT 1995 (2) SC 26, which has arisen from the judgment passed by the Lucknow Bench of this Court in which one of us (Hon'ble Mr. Justice S. H. A. Raza) was a member, it was contended by the learned counsel for the petitioner that as he had underwent a training, hence he is entitled for the benefit of the order which has been passed by the Hon'ble Supreme Court. In the said judgment, Hon'ble Supreme Court issued the following directions :
(i) other things being equal, a trained apprentice should be given preference over direct recruits,
(ii) 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,
(iii) 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 rules. If the service rules be silent on this aspect. relaxation to the extent of the period for which the apprentice had undergone training would be given.
(iv) the concerned training Institute would maintain a list of the persons trained yearwise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior.'
4. In accordance with the directions issued by the Hon'ble Supreme Court, the State Government has issued circulars which have been annexed by the petitioner as Annexure-Nos. 4. 5 and 6 to the writ petition, in which the departmental heads were directed to act in accordance with the dictum of the Hon'ble Supreme Court. It is pertinent to mention here that the case of apprentices before the Lucknow Bench of this Court which went upto the Hon'ble Supreme Court was of drivers and conductors working in the U. P. State Road Transport Corporation. The Hon'ble Supreme Court in the body of its judgment particularly after the amendment in the Apprentices Act had indicated that the Act also covered the Engineers.
5. The post of Assistant Engineer in the Public Works Department in accordance with the Rules is within the purview of the Public Service Commission. As far as the question as to whether the State Government can appoint a person without consulting the Public Service Commission is concerned, when the Rules provide that the post falls within the purview of the Public Service Commission, it may be said that Article 320 of the Constitution is advisory/directory in nature, but it has been held by the Hon'ble Supreme Court in Union of India v. Chotia, AIR 1978 SC 1214, that if the word 'shall' is used in rule made by the Government, the consultation would be mandatory. In the present case. Rule 5 of the Service Rules provide that consultation shall be necessary.
6. In view of the aforesaid situation, we cannot direct the State Government to appoint anybody including the petitioner whose post falls within the purview of the Public Service Commission. The State Government, if so chooses, can exempt such apprentices from the purview of the Public Service Commission, and then only such appointment should be made.
7. In view of the aforesaid position as stated hereinabove, no writ in the nature of mandamus can be issued to the State Government to appoint the petitioner as Assistant Engineer as the post in question can be filled up only with the consultation of the Public Service Commission.
8. But in view of the fact that the petitioner has already applied for his appointment on the post of Assistant Engineer in pursuance of the notification issued in the year 1996 and has appeared into the test/examination and the process of selection has not yet been fully completed, and the recommendation has not been made to the State Government, the Public Service Commission will give preference to the petitioner as per the directions of the Hon'ble Supreme Court in interview, if he has cleared the written examination in comparison with the other candidates because the petitioner and persons like him gained some experience by undergoing apprenticeship training.
9. Before parting with this Judgment, we took note of the Government Order, dated 12.9.1996 which has been issued to all Secretaries and Departmental Heads as well as to the Public Service Commission by the State Government in which the State Government has clearly indicated that directions of the Hon'ble Supreme Court should be strictly complied with and in that regard the service rules, etc.. If required, should be amended.
10. Our attention has been drawn by the learned standing counsel that the State Government has taken a decision to complete the process of formulating or modifying the service rules which may be done by the end of January. 1998.
11. We are of the view that the directions of Hon'ble Supreme Court which are binding under Article 141 of the Constitution of India, on the State as well as all the Instrumentalities of the State, should be followed and if in that regard, theRules come in its way, the State Government may amend the relevant Rules by excluding those qualified Assistant Engineers who had underwent apprenticeship course from the purview of the Public Service Commission by issuing a Government Order and may also amend the relevant Rules.
12. With the aforesaid directions, this writ petition is finally disposed of.