N. Chandra Shaker and Others Vs. the Ordnance Factories Board, Rep. by Director General of Ordnance Factories and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/938948
CourtCentral Administrative Tribunal CAT Hyderabad
Decided OnJan-30-2009
Case NumberO.A.No.175 of 2008
JudgeP. LAKSHMANA REDDY, VICE-CHAIRMAN & THE HONOURABLE MR. R. SANTHANAM, MEMBER (ADMN).
AppellantN. Chandra Shaker and Others
RespondentThe Ordnance Factories Board, Rep. by Director General of Ordnance Factories and Another
Advocates:Counsel for the Applicant : Sri P. Naveen Rao. Counsel for the Respondents : Sri G. Jayaprakash Babu, Sr. CGSC.
Excerpt:
r. santhanam, member (a) ) the applicants in this oa are aggrieved by the action of the 2nd respondent in not calling them for selection to fill the post of fitter auto (semi-skilled) grade and have questioned the same. 2. the facts of the case in brief are as follows :- all the applicants have passed the iti course in motor mechanic trade. they joined ordnance factory as apprentices and underwent apprenticeship training from 31.3.1996 to 30.3.1998. they passed in the examination conducted in may, 1998. the ordnance factory had issued pass certificate-cum-conduct certificate on successful completion of their apprenticeship training. it is the applicant's case that they have undergone apprenticeship training in ordnance factory as motor mechanic. however at the end of the training, in the certificate issued to them, they were described as apprenticeship trainees as driver-cum-fitter though the nature of training undergone by them was the same as motor mechanic. on 15.4.2004, the respondents issued a notification calling upon all ex-trade apprentices to update their personal particulars. in june, 2007, another notification was issued on the same lines to which the applicants responded. in march, 2008, the ordnance factory intended to fill the vacancies in the semi-skilled grade of fitter auto and call letters were issued to ex-trade apprentices in motor mechanic trade. the applicants did not receive call letters and on enquiries they came to know that no call letter would be issued to them as they do not have the necessary qualifications. the applicants submitted representations to the 2nd respondent informing him that they are all eligible and qualified and their specialized training is only in fitter auto trade and non- consideration on the ground that they have undergone apprenticeship training as drive-cum-fitter is arbitrary. there was no response to the representations. the applicants came to understand that selections were scheduled to be held on 24.3.08. since the applicants felt that they would suffer from grave and irreparable hardship, if their candidature was not considered, they filed this oa. 3. the respondents have filed a detailed reply statement in which they have stated that as per govt. of india instructions ex-trade apprentices of ordnance factory who have been imparted apprenticeship training have to be absorbed first when vacancies are available. a per the functional requirement of the factory recruitment action for induction of ex-trade apprentices to the industrial establishment was initiated. respondents have denied the contention of the applicants that they have undergone apprenticeship training in the trade of mechanic motor vehicle and at the end of apprenticeship training they were described as apprentice trainees in the trade of driver-cum-fitter. the respondents have also refuted the contention of the applicants that the job nature of apprentice training undergone by them in the trade of driver-cum-fitter was the same as that of mechanic motor vehicle. as per the apprenticeship act, 1961, both the trades are distinct from each other and are separate trades. the apprentice training pass certificate was issued by the national council of trades for vocational training (nctvt) as per apprenticeship act, 1961. 4. the respondents have also stated that the recruitment process in ordnance factories is governed by the provisions of statutory rules and provisions as per the sro 185 of 1994 (annexure r-3) which has been issued by the president of india in exercise of powers conferred by the proviso to article 309 of the constitution of india. these rules regulate the method of recruitment to the post of industrial employees in ordnance factory. according to these rules, the educational and other qualifications required for direct recruitment is nctvt certificate in the relevant trade failing which by iti or equivalent diploma certificate. as per the above guidelines, for filling the posts in the trade of fitter (automobile), the individuals possessing apprentice pass certificate in the trade of mechanic motor vehicle are to be considered. the job specifications of mechanic motor vehicle during the apprenticeship and the trade test specifications of fitter (automobile) are similar or one and the same. the respondents have further stated that the applicants possess apprenticeship certificate in the trade of driver-cum-fitter, which is not similar to that of mechanic motor vehicle either by pronouncement or even by job nature and therefore, as per designated trades notified under apprenticeship act, 1961, they were not considered for issue of call letters to attend the trade test for the post of fitter (automobile). 5. when the case was first heard on 19.3.2008, after hearing both sides, an interim direction was issued to the respondents to allow the applicants herein to appear for selection subject to eligibility, scheduled to be held on 24.3.08 or any subsequent date but the results shall not be declared till the next date of hearing. accordingly the applicants were allowed for the trade test for the selection for the post of fitter (automobile). this order was modified on 18.9.2008 permitting the respondents to publish the results. 6. heard sri p. naveen rao, learned counsel for the applicant and sri g. jayaprakash babu, learned senior standing counsel for the central government. the material papers submitted by them were also perused. 7. the issues that arise for consideration are (i) whether the apprenticeship training in the trade of driver-cum-fitter and mechanic motor vehicle are identical or similar as claimed by the applicants; (ii) whether the respondents were justified in rejecting the claim of the applicants to be considered for the post of fitter (automobile); and (iii) to what relief, if any are the applicants entitled. 8. issue no. (i) : the respondents have stated that the training institutes provide apprenticeship training to the candidates in the trades listed in the apprenticeship rules but not in the trades available in the respective institutes. as per the apprenticeship rules, 1992, issued in exercise of the powers conferred by sub-section (1) of section 37 of apprentice act, 1961, both the trades of mechanic (motor vehicle) and driver-cum-fitter are listed as designated trades. the apprenticeship training is provided in the trades notified under the apprenticeship act, 1961, as provided in the rules and in the trades opted by the individuals in response to the advertisement. there is no guarantee that the candidates trained in a particular trade would be eligible for a particular post. the trade once opted / approved by the regional director of apprenticeship training would be final and should not be changed at any time. on successful completion of apprenticeship training, the certificate are issued by national council of trade for vocational training. the respondents have invited attention to the list of trades designated under the apprenticeship ct, 1961, along with the duration of trade, n.c.o. code, rebate allowed, minimum educational qualifications etc., in annexure-viii of the apprenticeship training manual (annexure r2) which is also available in schedule-i to apprenticeship rules, 1992. in group no.10 (heat engines group) are listed eight different designated trades including mechanic motor vehicle and driver-cum-fitter. the relevant entries in the table are extracted below :- designated trade n.c.o. code period of app. training relevant iti trades / app. trades rebate allowed essential / desirable educational qualifications mechanic motor vehicle 753.27 3 yrs. mechanic motor vehicle 2 years passed 10th class examination or its equivalent driver cum fitter 843.50 986.55 3 yrs mechanic 1 years essential: passed 2 standard below sslc or passed 8th class examination or its equivalent under 10+2 system of education. desirable : passed 10th class examination under 10+2 system of education or its equivalent. the respondents have submitted that the trades of mechanic motor vehicle and driver-cum-fitter are both designated and are separate from each other as notified at sl. no. 1 and 6 in group-10 of the heat engines trades group of the apprenticeship trade manual. the respondents have further stated that the applicants have undergone training only in the trade of driver-cum-fitter. 9. learned counsel for the applicant submitted that the applicants have passed the prescribed trade test in the trade motor mechanic in the government industrial training institute conducted by the department of employment and training and a provisional national trade certificate has been issued to them. copies of these certificates are available at annexure a-vii enclosed to the application. they have also obtained the national apprenticeship certificate after undergoing the apprenticeship training at ordnance factory, eddumailaram, in the trade of driver-cum-fitter and have received a certificate from national council of trade for vocational training. learned counsel for the applicants invited our attention to the subjects and the maximum marks allotted for the motor mechanic trade test conducted by the iti and the driver-cum-fitter trade test conducted by the apprenticeship training institute of the respondents and submitted that the subjects are identical and the marks allotted for the different subjects are also same. he therefore argued that these are similar or identical trades and a person who has undergone apprenticeship training in driver-cum-fitter trade in the apprenticeship training institute should also be considered for the post of fitter (automobile) if he has passed the trade test in the trade of motor mechanic conducted by the iti. he also submitted that the applicants as apprentices in the trade of driver-cum-fitter have undergone the prescribed period of training which can be longer than that prescribed for mechanic (motor vehicle) trade since the rebate allowed in apprentice training is only for one year for the driver-cum-fitter whereas it is 2 years for mechanic (motor vehicle). he added that there is no post of driver-cum-fitter in the ordnance factory and therefore having given training in the driver-cum-fitter trade which is identical to that of mechanic (motor vehicle) trade, the respondents are liable to consider the case of the applicants for the post of fitter (auto). he also added that after the applicants had undergone apprenticeship training, nomenclature has been changed and now the said driver-cum-fitter trade is named as motor mechanical apprenticeship. the learned counsel for the respondents, after verification of the facts, denied the statement of the learned counsel for the applicant that the nomenclature of the trades in which the applicants had undergone training had been changed subsequent to the training. however, he confirmed that the post of driver-cum-fitter is not existing in the respondents' organization. at the same time, he maintained that it is not mandatory on the part of the respondents that the candidates trained for /driver-cum-fitter have to be necessarily absorbed. as per the instructions of the director general of training and employment, ministry of labour, in compliance of the orders of hon'ble supreme court, the ex-apprentices should be given preference over others. he maintained that since the applicants were given training in a trade which was designated but different from that of mechanical motor vehicle, they were not considered for appointment. 10. we have given careful consideration to the arguments of both the counsel. we see a lot of force in the contention of the learned counsel for the applicants that the trades of mechanic motor vehicles and driver-cum-fitter are similar (even though they may not be identical) since the relevant iti / apprenticeship trade in both the cases is shown as mechanical (motor vehicle) in schedule-1 of apprentice manual. there is a slight difference only in the essential / desirable educational qualifications and the rebate allowed in apprenticeship training as seen in the table at para-8 supra. as rightly pointed out by the learned counsel for the applicant, the subjects are identical and the maximum marks prescribed for each subject for test in the trade of driver-cum-fitter conducted by the apprenticeship training institute of the respondents' organization and in the trade of mechanic (motor vehicle) conducted by the iti are also identical. the only difference is that the marks obtained in the subject social science is included for assessing the overall performance in the iti whereas in the case of the apprentices training institute, it does not appear to be the case and the marks obtained in the subject social studies are shown separately. we also find from the performance of the applicants who took the examination on the orders of the tribunal that they have all been successful in the examination. this also confirms the point made by the learned counsel for the applicant that they are both one and the same, though known by a different nomenclature. despite being asked specifically as to how the applicants are considered unsuitable for the post of fitter (auto), the respondents were not able to give a convincing reply. we are therefore of the considered view that the apprenticeship training in the trade of driver-cum-fitter and in the trade of mechanic motor vehicle are identical in all respects but for the nomenclature. therefore the first issue is found in favour of the applicants. 11. issue no. (ii) : it is not disputed that the applicants have undergone apprenticeship training in the trade of driver-cum-fitter. it is also not disputed that they have undergone the training in mechanical motor vehicle trade conducted by the iti. it is again not disputed that the subjects in both the examinations are identical and the maximum marks in each subject are also identical. as trainees at the industrial training institute, the applicants have the added qualification of securing a pass in the subject "social studies", which is probably a compulsory subject for coming out successful in the apprenticeship training of the respondents' institute. the certificate issued by the respondents' institute states that during the period of training, the applicants had been given practical training in their workshop which is full fledged for maintaining all types of transport vehicles (47 trades) and material handling equipments. the certificate further states that they have been given training including complete overhaul, transmission system, brake and steering systems and that they had been trained in body repairs. it is evident from the certificate issued that the training has been quite comprehensive with regard to the mechanical aspects of motor vehicles. the respondents are not in a position to give any convincing reason as to how the applicants are disqualified for the posts for the post of fitter (automobile). they have stated in their reply affidavit that the job specifications of mechanic motor vehicle during the apprenticeship and trade test specifications of fitter (automobile) are similar or one and the same. since we have concluded earlier that the apprenticeship training in the trade of driver-cum-fitter and the training in the trade of mechanic motor vehicle are identical in all respects, but for the nomenclature, we are of the considered view that the respondents are not justified in rejecting the claim of the applicants to be considered for the post of fitter (automobile). therefore, the second issue is also found in favour of the applicants. 12. issue no. (iii) : the respondents in their reply affidavit have referred to the guidelines issued by the ordnance factory board in regard to recruitment of ex-trade apprentices in ordnance factory. these instructions had been issued in pursuance of ministry of labour, government of india, instructions no. dget 50(2)/95-ap dated 15.3.1996 which is in pursuance of the apex court judgment in a civil appeal. these guidelines at phase-i state as follows :- i) the factories shall maintain the seniority list of ex-trade apprentices of their own factory. apprentices trained in the earlier batch will be en-block senior to the apprentices of the subsequent batches. while maintaining the batch-wise seniority, marks/grading obtained in nctvt examination will be the criterion for determining the intra-batch seniority of the apprentices. ii) as and when vacancies arise and factories are permitted to make direct induction, in the first instance, ex-trade apprentices of their own factory will be considered for recruitment as already explained in the preceding para. iii) selection process is based on fitness cum seniority. only trade test will be conducted to ascertain whether the ex-trade apprentice is fit for the job or not. if he is unfit (i.e., he failed in trade test he is to be excluded. amongst the candidates who pass the trade test, and are therefore fit, the selection will be done strictly on seniority. that is why it is very important that the factories maintain accurately batch-wise and in the same batch seniority list. the trade test should be same as in a trade test conducted for promotions of industrial employees of ofs. the suitability or otherwise of the candidate is to be determined by the selection board in the test. iv) factories should normally call ex-trade apprentices for the test one and half times the number of vacancies intended to be filled up. this is to provide necessary cushion to meet the eventuality of some of the candidates so called not turning up for the test or failing in test. once the number of candidates selected / passed reaches the number required, the test is to be stopped. this position may be explained to the candidates before starting the test. this is necessary as maintaining a waiting list of selected candidates has its problems, leading to litigation later." the respondents have stated that they have implemented the above instructions and also the provisions as per sro 185 and the provisions in the apprenticeship act, 1961. 13. we have considered the respondents reply carefully. we find from the material papers furnished by the senior standing counsel for the respondents that for the 4 vacancies for the post of fitter (automobile), 7 candidates who had undergone apprenticeship training in the trade of mechanic motor vehicle were trade tested. the five applicants who have undergone training in the trade of driver-cum-fitter conducted by the respondents' institute as also the iti training in the trade of mechanical motor vehicle have also been permitted to take the examination based on the interim orders of this tribunal. the learned counsel for the respondents informed us that all the 12 candidates have passed the trade test and have been declared as fit by the selection board. since there are only four vacancies, the question arises as to how the selection has to be made. in the normal course, the respondents would have selected the four senior most persons from the list of 7 candidates who had undergone training in the trade of mechanic motor vehicle for these 4 posts. the situation is now different with two sets of candidates being in the field, one set comprising of 7 candidates who had undergone training in apprenticeship training in the trade of mechanic motor vehicle and the other set comprising the 5 applicants who had undergone apprenticeship training in the trade of driver-cum-fitter. we find from the material papers furnished by the learned counsel for the respondents that the applicants have done well in the trade test for the post of fitter (automobile) conducted on 24.3.2008. we are of the considered view that the interse seniority between these two sets of candidates should be determined on the basis of the date of completion of training in the respective trade i.e. mechanical motor vehicle or driver-cum-fitter conducted by the respondents' institute and the 4 senior-most persons who are found fit should be selected. if two or more candidates had completed their training on the same date, then the senior most among them by age should be selected. this issue is decided accordingly. 14. in the result, the oa is allowed. respondents are directed to announce the results based on the criteria spelt out in para-13 supra. there is no order as to costs.
Judgment:

R. Santhanam, Member (A) )

The applicants in this OA are aggrieved by the action of the 2nd Respondent in not calling them for selection to fill the post of Fitter Auto (semi-skilled) grade and have questioned the same.

2. The facts of the case in brief are as follows :-

All the applicants have passed the ITI course in Motor Mechanic Trade. They joined Ordnance Factory as Apprentices and underwent apprenticeship training from 31.3.1996 to 30.3.1998. They passed in the examination conducted in May, 1998. The Ordnance Factory had issued pass certificate-cum-conduct certificate on successful completion of their apprenticeship training. It is the applicant's case that they have undergone apprenticeship training in Ordnance Factory as Motor Mechanic. However at the end of the training, in the certificate issued to them, they were described as apprenticeship trainees as Driver-cum-Fitter though the nature of training undergone by them was the same as Motor Mechanic. On 15.4.2004, the respondents issued a notification calling upon all ex-trade apprentices to update their personal particulars. In June, 2007, another notification was issued on the same lines to which the applicants responded. In March, 2008, the Ordnance Factory intended to fill the vacancies in the semi-skilled grade of Fitter Auto and call letters were issued to ex-trade apprentices in Motor Mechanic Trade. The applicants did not receive call letters and on enquiries they came to know that no call letter would be issued to them as they do not have the necessary qualifications. The applicants submitted representations to the 2nd Respondent informing him that they are all eligible and qualified and their specialized training is only in Fitter Auto Trade and non- consideration on the ground that they have undergone apprenticeship training as Drive-cum-Fitter is arbitrary. There was no response to the representations. The applicants came to understand that selections were scheduled to be held on 24.3.08. Since the applicants felt that they would suffer from grave and irreparable hardship, if their candidature was not considered, they filed this OA.

3. The Respondents have filed a detailed reply statement in which they have stated that as per Govt. of India instructions ex-trade Apprentices of Ordnance Factory who have been imparted apprenticeship training have to be absorbed first when vacancies are available. A per the functional requirement of the factory recruitment action for induction of ex-trade apprentices to the industrial establishment was initiated. Respondents have denied the contention of the applicants that they have undergone apprenticeship training in the trade of Mechanic Motor Vehicle and at the end of apprenticeship training they were described as apprentice trainees in the trade of Driver-cum-Fitter. The Respondents have also refuted the contention of the applicants that the job nature of apprentice training undergone by them in the trade of Driver-cum-Fitter was the same as that of Mechanic Motor Vehicle. As per the Apprenticeship Act, 1961, both the trades are distinct from each other and are separate trades. The apprentice training pass certificate was issued by the National Council of trades for Vocational Training (NCTVT) as per Apprenticeship Act, 1961.

4. The Respondents have also stated that the recruitment process in Ordnance Factories is governed by the provisions of statutory rules and provisions as per the SRO 185 of 1994 (Annexure R-3) which has been issued by the President of India in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. These rules regulate the method of recruitment to the post of industrial employees in Ordnance Factory. According to these rules, the educational and other qualifications required for direct recruitment is NCTVT Certificate in the relevant trade failing which by ITI or equivalent diploma certificate. As per the above guidelines, for filling the posts in the trade of Fitter (Automobile), the individuals possessing Apprentice pass certificate in the trade of Mechanic Motor Vehicle are to be considered. The job specifications of Mechanic Motor Vehicle during the apprenticeship and the trade test specifications of Fitter (Automobile) are similar or one and the same. The Respondents have further stated that the applicants possess Apprenticeship Certificate in the trade of Driver-cum-Fitter, which is not similar to that of Mechanic Motor Vehicle either by pronouncement or even by job nature and therefore, as per designated trades notified under Apprenticeship Act, 1961, they were not considered for issue of call letters to attend the trade test for the post of Fitter (Automobile).

5. When the case was first heard on 19.3.2008, after hearing both sides, an interim direction was issued to the Respondents to allow the applicants herein to appear for selection subject to eligibility, scheduled to be held on 24.3.08 or any subsequent date but the results shall not be declared till the next date of hearing. Accordingly the applicants were allowed for the trade test for the selection for the post of Fitter (Automobile). This order was modified on 18.9.2008 permitting the respondents to publish the results.

6. Heard Sri P. Naveen Rao, learned counsel for the applicant and Sri G. Jayaprakash Babu, learned senior standing counsel for the central government. The material papers submitted by them were also perused.

7. The issues that arise for consideration are (i) whether the apprenticeship training in the trade of Driver-cum-Fitter and Mechanic Motor Vehicle are identical or similar as claimed by the applicants; (ii) whether the respondents were justified in rejecting the claim of the applicants to be considered for the post of Fitter (Automobile); and (iii) to what relief, if any are the applicants entitled.

8. Issue No. (i) : The Respondents have stated that the Training Institutes provide Apprenticeship Training to the candidates in the trades listed in the Apprenticeship Rules but not in the trades available in the respective institutes. As per the Apprenticeship Rules, 1992, issued in exercise of the powers conferred by sub-section (1) of Section 37 of Apprentice Act, 1961, both the trades of Mechanic (Motor Vehicle) and Driver-cum-Fitter are listed as designated trades. The Apprenticeship Training is provided in the trades notified under the Apprenticeship Act, 1961, as provided in the rules and in the trades opted by the individuals in response to the advertisement. There is no guarantee that the candidates trained in a particular trade would be eligible for a particular post. The trade once opted / approved by the Regional Director of Apprenticeship training would be final and should not be changed at any time. On successful completion of Apprenticeship Training, the certificate are issued by National Council of Trade for Vocational Training. The Respondents have invited attention to the list of trades designated under the Apprenticeship ct, 1961, along with the duration of trade, N.C.O. Code, Rebate allowed, minimum educational qualifications etc., in Annexure-VIII of the Apprenticeship Training Manual (Annexure R2) which is also available in Schedule-I to Apprenticeship Rules, 1992. In Group No.10 (Heat Engines Group) are listed eight different designated trades including Mechanic Motor Vehicle and Driver-cum-Fitter. The relevant entries in the table are extracted below :-

Designated

trade

N.C.O.

Code

Period of

App.

Training

Relevant

ITI Trades /

App. Trades

Rebate

Allowed

Essential / Desirable

Educational

Qualifications

Mechanic

Motor

Vehicle

753.27

3 Yrs.

Mechanic

Motor

Vehicle

2 Years

Passed 10th Class

examination or its equivalent

Driver cum

Fitter

843.50

986.55

3 Yrs

Mechanic

1 Years

Essential:

Passed 2 standard below SSLC or passed 8th class examination or its equivalent under 10+2 system of education.

Desirable :

Passed 10th Class examination under 10+2 system of education or its equivalent.

The Respondents have submitted that the trades of Mechanic Motor Vehicle and Driver-cum-Fitter are both designated and are separate from each other as notified at Sl. No. 1 and 6 in Group-10 of the Heat Engines Trades group of the Apprenticeship Trade Manual. The Respondents have further stated that the applicants have undergone training only in the trade of Driver-cum-Fitter.

9. Learned counsel for the applicant submitted that the applicants have passed the prescribed trade test in the trade Motor Mechanic in the Government Industrial Training Institute conducted by the department of Employment and Training and a provisional National Trade Certificate has been issued to them. Copies of these certificates are available at Annexure A-VII enclosed to the application. They have also obtained the National Apprenticeship Certificate after undergoing the Apprenticeship Training at Ordnance Factory, Eddumailaram, in the trade of Driver-cum-Fitter and have received a certificate from National Council of Trade for Vocational Training. Learned counsel for the applicants invited our attention to the subjects and the maximum marks allotted for the Motor Mechanic Trade Test conducted by the ITI and the Driver-cum-Fitter trade test conducted by the Apprenticeship Training Institute of the Respondents and submitted that the subjects are identical and the marks allotted for the different subjects are also same. He therefore argued that these are similar or identical trades and a person who has undergone Apprenticeship Training in Driver-cum-Fitter trade in the Apprenticeship Training Institute should also be considered for the post of Fitter (Automobile) if he has passed the trade test in the trade of Motor Mechanic conducted by the ITI. He also submitted that the applicants as Apprentices in the trade of Driver-cum-Fitter have undergone the prescribed period of training which can be longer than that prescribed for Mechanic (Motor Vehicle) trade since the rebate allowed in apprentice training is only for one year for the Driver-cum-Fitter whereas it is 2 years for Mechanic (Motor Vehicle). He added that there is no post of Driver-cum-Fitter in the Ordnance Factory and therefore having given training in the Driver-cum-Fitter trade which is identical to that of Mechanic (Motor Vehicle) trade, the Respondents are liable to consider the case of the applicants for the post of Fitter (Auto). He also added that after the applicants had undergone Apprenticeship Training, nomenclature has been changed and now the said Driver-cum-Fitter trade is named as Motor Mechanical Apprenticeship. The learned counsel for the respondents, after verification of the facts, denied the statement of the learned counsel for the applicant that the nomenclature of the trades in which the applicants had undergone training had been changed subsequent to the training. However, he confirmed that the post of Driver-cum-Fitter is not existing in the respondents' organization. At the same time, he maintained that it is not mandatory on the part of the respondents that the candidates trained for /Driver-cum-Fitter have to be necessarily absorbed. As per the instructions of the Director General of Training and Employment, Ministry of Labour, in compliance of the orders of Hon'ble Supreme Court, the ex-apprentices should be given preference over others. He maintained that since the applicants were given training in a trade which was designated but different from that of Mechanical Motor Vehicle, they were not considered for appointment.

10. We have given careful consideration to the arguments of both the counsel. We see a lot of force in the contention of the learned counsel for the applicants that the trades of Mechanic Motor Vehicles and Driver-cum-Fitter are similar (even though they may not be identical) since the relevant ITI / Apprenticeship trade in both the cases is shown as Mechanical (Motor Vehicle) in Schedule-1 of Apprentice Manual. There is a slight difference only in the essential / desirable educational qualifications and the rebate allowed in apprenticeship training as seen in the table at para-8 supra. As rightly pointed out by the learned counsel for the applicant, the subjects are identical and the maximum marks prescribed for each subject for test in the trade of Driver-cum-Fitter conducted by the Apprenticeship Training Institute of the respondents' organization and in the trade of Mechanic (Motor Vehicle) conducted by the ITI are also identical. The only difference is that the marks obtained in the subject Social Science is included for assessing the overall performance in the ITI whereas in the case of the Apprentices Training Institute, it does not appear to be the case and the marks obtained in the subject Social Studies are shown separately. We also find from the performance of the applicants who took the examination on the orders of the Tribunal that they have all been successful in the examination. This also confirms the point made by the learned counsel for the applicant that they are both one and the same, though known by a different nomenclature. Despite being asked specifically as to how the applicants are considered unsuitable for the post of Fitter (Auto), the Respondents were not able to give a convincing reply. We are therefore of the considered view that the apprenticeship training in the trade of Driver-cum-Fitter and in the trade of Mechanic Motor Vehicle are identical in all respects but for the nomenclature. Therefore the first issue is found in favour of the applicants.

11. Issue No. (ii) : It is not disputed that the applicants have undergone apprenticeship training in the trade of Driver-cum-Fitter. It is also not disputed that they have undergone the training in Mechanical Motor Vehicle trade conducted by the ITI. It is again not disputed that the subjects in both the examinations are identical and the maximum marks in each subject are also identical. As Trainees at the Industrial Training Institute, the applicants have the added qualification of securing a pass in the subject "Social Studies", which is probably a compulsory subject for coming out successful in the apprenticeship training of the Respondents' Institute. The certificate issued by the Respondents' Institute states that during the period of training, the applicants had been given practical training in their workshop which is full fledged for maintaining all types of transport vehicles (47 trades) and material handling equipments. The certificate further states that they have been given training including complete overhaul, transmission system, brake and steering systems and that they had been trained in body repairs. It is evident from the certificate issued that the training has been quite comprehensive with regard to the mechanical aspects of Motor Vehicles. The respondents are not in a position to give any convincing reason as to how the applicants are disqualified for the posts for the post of Fitter (Automobile). They have stated in their reply affidavit that the job specifications of Mechanic Motor Vehicle during the apprenticeship and trade test specifications of Fitter (Automobile) are similar or one and the same. Since we have concluded earlier that the apprenticeship training in the trade of Driver-cum-Fitter and the training in the trade of Mechanic Motor Vehicle are identical in all respects, but for the nomenclature, we are of the considered view that the Respondents are not justified in rejecting the claim of the applicants to be considered for the post of Fitter (Automobile). Therefore, the second issue is also found in favour of the applicants.

12. Issue No. (iii) : The Respondents in their reply affidavit have referred to the guidelines issued by the Ordnance Factory Board in regard to recruitment of ex-trade apprentices in Ordnance Factory. These instructions had been issued in pursuance of Ministry of Labour, Government of India, instructions No. DGET 50(2)/95-AP dated 15.3.1996 which is in pursuance of the Apex Court judgment in a Civil Appeal. These guidelines at Phase-I state as follows :-

i) The factories shall maintain the seniority list of ex-trade apprentices of their own factory. Apprentices trained in the earlier batch will be en-block senior to the Apprentices of the subsequent batches. While maintaining the batch-wise seniority, marks/grading obtained in NCTVT examination will be the criterion for determining the intra-batch seniority of the apprentices.

ii) As and when vacancies arise and factories are permitted to make direct induction, in the first instance, ex-trade apprentices of their own factory will be considered for recruitment as already explained in the preceding para.

iii) Selection process is based on fitness cum seniority. Only trade test will be conducted to ascertain whether the ex-trade apprentice is fit for the job or not. If he is unfit (i.e., he failed in trade test he is to be excluded. Amongst the candidates who pass the trade test, and are therefore fit, the selection will be done strictly on seniority. That is why it is very important that the factories maintain accurately batch-wise and in the same batch seniority list. The trade test should be same as in a trade test conducted for promotions of industrial employees of OFs. The suitability or otherwise of the candidate is to be determined by the selection board in the test.

iv) Factories should normally call ex-trade apprentices for the test one and half times the number of vacancies intended to be filled up. This is to provide necessary cushion to meet the eventuality of some of the candidates so called not turning up for the test or failing in test. Once the number of candidates selected / passed reaches the number required, the test is to be stopped. This position may be explained to the candidates before starting the test. This is necessary as maintaining a waiting list of selected candidates has its problems, leading to litigation later."

The Respondents have stated that they have implemented the above instructions and also the provisions as per SRO 185 and the provisions in the Apprenticeship Act, 1961.

13. We have considered the respondents reply carefully. We find from the material papers furnished by the senior standing counsel for the respondents that for the 4 vacancies for the post of Fitter (Automobile), 7 candidates who had undergone apprenticeship training in the trade of Mechanic Motor Vehicle were trade tested. The five applicants who have undergone training in the trade of Driver-cum-Fitter conducted by the Respondents' Institute as also the ITI training in the Trade of Mechanical Motor Vehicle have also been permitted to take the examination based on the interim orders of this Tribunal. The learned counsel for the Respondents informed us that all the 12 candidates have passed the trade test and have been declared as fit by the selection board. Since there are only four vacancies, the question arises as to how the selection has to be made. In the normal course, the respondents would have selected the four senior most persons from the list of 7 candidates who had undergone training in the trade of Mechanic Motor Vehicle for these 4 posts. The situation is now different with two sets of candidates being in the field, one set comprising of 7 candidates who had undergone training in apprenticeship training in the trade of Mechanic Motor Vehicle and the other set comprising the 5 applicants who had undergone apprenticeship training in the trade of Driver-cum-Fitter. We find from the material papers furnished by the learned counsel for the Respondents that the applicants have done well in the trade test for the post of Fitter (Automobile) conducted on 24.3.2008. We are of the considered view that the interse seniority between these two sets of candidates should be determined on the basis of the date of completion of training in the respective trade i.e. Mechanical Motor Vehicle or Driver-cum-Fitter conducted by the Respondents' Institute and the 4 senior-most persons who are found fit should be selected. If two or more candidates had completed their training on the same date, then the senior most among them by age should be selected. This issue is decided accordingly.

14. In the result, the OA is allowed. Respondents are directed to announce the results based on the criteria spelt out in para-13 supra. There is no order as to costs.