Abdul Rehman Khan vs R.S.E.B. and Others

Jasraj Chopra, J.—This writ petition is directed against the order Annexure-P. 9 dated 10.8.1979 passed by the Joint Secretary, (Admn.), RSEB, Jaipur whereby the examination of the petitioners, which was conducted by the respondent RSEB for the post of Accounts Clerks was cancelled.

The facts necessary to be noticed for the disposal of this writ petition briefly stated are: that an advertisement came to be issued by the respondent RSEB inviting applications for granting Apprenticeship training in different trades including the posts of L.D. Cs. The petitioners applied and they were declared successful. They were amongst 36 selected candidates as per the letter Annexure-P. 1 dated 16.2.1976 written by the Deputy Secretary (Examination) RSEB, Jaipur to the Superintending Engineer (JDC), RSEB, Jodhpur. These 36 selected candidates were posted at different places. The petitioner Abdul Rehman Khan was posted as a trainee LDC in the Office of the Assistant Engineer RSEB, Sirohi whereas petitioners Banshilal Soni and Ramsingh were posted as trainee LDCs in the offices of the Assistant Engineer Jalore and the Assistant Engineer, Sumerpur and it was ordered that during the period of their training, which shall be initially for one year, they shall be paid Rs. 100/- per month as stipend. Later on, the period of training was reduced to six months.

However, the petitioners came to be appointed in service on regular basis as Lower Division Clerks vide order Annexure-5 dated 10.12.1976. The names of petitioners Banshilal Soni, Ramsingh and Rehmankhan appear at serial Nos. 38, 42 and 48 respectively in the order Annexure-5.

It is alleged that thereafter, the notification Annexure-P. 6 date 21.6.1978 was issued by the respondent Board inviting applications for the posts of Accounts Clerks from the departmental candidates eligible for the departmental examination for the post to be held tentatively in the month of September, 1978. The eligibility condition for filling up the form was that all the Upper Division Clerks were entitled to appear in the said departmental examination but so far as the Lower Division Clerks were concerned, the non-Graduate LDCs with five years of service and Graduate LDCs with two years of service in the Board as on 31.7.1978 were made entitled to appear in the said departmental examination.

According to the petitioners, their training period as Apprentice should be treated to be in service. They have submitted that if this training period of Apprenticeship is treated to be in service period then they have completed two years in service on 31.7.1978 because they joined their apprenticeship training somewhere in February 1976. The application form for Accounts Clerk Examination has been filed and marked as Annexure. P. 7 and the item No. 6 of that form relates to the Date of joining the Board''s service.

The petitioners have submitted that the result of the said departmental examination was declared vide Result Annexure-P. 8, in which, the names of petitioners Abdul Rehman Khan, Banshilal Soni and Ramsingh Gehlot appear at items Nos. 237, 240 and 284 respectively. Before the departmental examinations were held, the respondent Board issued a Notice Annexure-Rule 4 dated 29.9.1978 in which it was made clear that Service in case of LDCs mean service in the regular pay scale of LDC and the period spent as trainee/apprentice on payment of monthly stipend is not to be taken as Service for the purpose of determination of eligibility for appearing in the examination. In that notice, it was further stated that it has been brought to notice that some LDCs have mentioned in column 6 of their application; the date of appointment as trainee LDC and not the date of their appointment as LDC in the regular pay scales. Admission Cards have been issued to such persons also on the basis of the information furnished by them. The admission cards issued to the persons concerned make a mention that the permission is being given provisionally and is based on the information furnished by the candidate. It was suggested that the LDCs who have not rendered the prescribed period of service in the regular pay scale of LDC on 1.7.1978 are not eligible and they should not appear in the examination on the authority of the Admission Cards issued to them on the basis of the wrong information furnished by them in their application form and in case, any such ineligible person appears in the examination, his examination will be treated as cancelled and action will be taken against him for furnishing wrong information. The contention of the petitioners is that this notice was never served on them. Be that as it may, they appeared and passed the said departmental examination and that examination has been ultimately cancelled by the respondent Board by its order Annexure-P. 9 dated 10.8.1979.

After their examination has been cancelled by the respondent Board, the petitioners have made representations Annexure P. 10 dated 13.12.1979 and P. 11 dated 15.12.1979. However, when nothing was heard then one more representation was filed by them on 13.3.1989, which is Annexure-P. 12. Hence, they have filed this writ petition.

According to the petitioners, certain persons who have been given appointment on the posts of Accounts Clerks in the year 1988 vide order Annexure-P. 11 date 21.12.1988 but as their period of training as Apprentice on the post of LDC has not been counted to be in regular service, their examination has bee cancelled treating them ineligible to appear in the said departmental examination and hence, they have been deprived from the fruits of the said departmental examination, which is violative of Article 14 and 16 of the Constitution. It was submitted that the petitioners are workmen and, therefore, the services which they have rendered as Apprentice should also be treated as Board''s service because their services were later on regularised.

It was contended that the case of Shri Mohan Lal Israni is akin to the case of the petitioner because he was also a LDC trainee and the period of LDC training has been reckoned for the purpose of service whereas their training period has not been reckoned for the purpose of service. According to the petitioners, cancellation of their examination is violative of the principles of natural justice. They have claimed that as they have cleared the departmental examination conducted by the respondent Board for the Post of Accounts Clerks, they should be appointed as Accounts Clerks.

A reply to the writ petition has been filed on behalf of the respondents, in which, it has been contended that the period of apprenticeship cannot be treated as period in service because apprenticeship was granted to the petitioners under the Apprentices Act, 1961 (for short the Act''). Section 13 of the Act provides that the Apprentices are only entitled to stipend. Section 18 of the Act provides that every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker and therefore, the training period of the petitioners cannot be counted in Service as LDC. According to the respondents, if the petitioners were working against some vacant posts during the period of their training, that does not confer any right on them to be treated as in service employees because; till they completed their training successfully, they were not entitled to any regular appointment as LDC. It was, therefore, submitted that not treating their period of training as. service is neither violative of Article 14 nor of Article 16 of the Constitution.

According to the respondents, an apprentice may be performing certain duties as provided by the Employees Service Regulation, 1964 but that duty cannot be treated as Service and, therefore, their examination has rightly been cancelled by the respondent Board. Moreover, the examination was cancelled way back in the year 1979 and this writ petition has been filed after the expiry of 13 long years and, therefore, this writ petition in highly belated and such a delayed claim cannot be entertained because much water has flown under the Bridge as thereafter so many persons have been promoted. Thus, the petitioners are guilty of latches and, therefore, their claim cannot be entertained at such a belated stage.

I have heard Mr. P.P. Choudhary, the learned Counsel appearing for the petitioners and Mr. Mridul Jain for the respondents and have carefully gone through the record of the case.

It has been contended by Mr. P.P. Choudhary, the learned Counsel appearing for the petitioners that the period of apprenticeship of the petitioners should be treated as service because service as Apprenticeship has also been described as duty as per Section 3(vii) of the Employees Service Regulations, 1964. It is a different matter that an apprentice may be treated to be performing certain duties but that does not make him a regular appointee because Section 18 of the Act clearly provides that every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker. Section 13 of the Act also provides that the apprentices are only entitled to the payment of stipend, which was Rs. 100/- per month in this case. The petitioners were regularly appointed as LDC vide order Annexure. P. 8 dated 2.4.1979 on successful termination of their apprenticeship training and, therefore, their services start from the date they have been regularly appointed and before that they cannot be treated in service, item No. 6 or Clause (6) of application form for the post of Accounts Clerks (Annexure-P. 6) clearly provides that an applicant is required to furnish information about the date of joining the Board''s service. As stated above, an apprentice is only a trainee. May be that the petitioners were asked to work on vacant posts but that does not mean that the period of apprenticeship should be treated as service.

Moreover, the petitioners were informed vide Notice Annexure-Rule 4 dated 29.9.1978 prior to the holding of the examination that they are not entitled to appear in the examination and despite this, if they appear in the examination, their examination will be cancelled. This notice was issued by the respondent Board in its regular course of business and it is expected that its employees know about it. Even if this notice has not come to the knowledge of the petitioners then too, their examination was cancelled way back on 10.8.1979 and presently we are running in the year 1993 and, therefore, the petitioners, who are guilty of latches, cannot press their remedy after the expiry of 13 long years. As stated above, their examination was cancelled on 10.8.1979 and therefore, the cause of action arose to them on 10.8.1979. After the cancellation of their examination, the petitioners made 2-3 representations but that hardly matters because even if they did not received any reply they were not...expected to wait for 13 long years. According to the respondents, those representations were rejected. Be that as it may, even if the result of those representations was not conveyed to the petitioners then too, the cause of action arose to them on 10.8.1979 when their examination was cancelled. Coming to the court after the expiry of 13 long years from the date, the cause of action arose to the petitioner, cannot be entertained because the petitioners are guilty of serious latches and inordinate delay.

In this respect, Mr. Mridul Jain drew my attention to a decision of their lordships of the Supreme Court in Naib Subedar Lachhman Dass Vs. Union of India (UOI )and Others, , wherein the petition was filed after 4 years without satisfactory explanation for the delay. Their lordships held that the petition was rightly dismissed.

My attention was next drawn to a decision of their lordships of the Supreme Court in State of Orissa Vs. Pyarimohan Samantaray and Others, , wherein the petitioner by a Government servant challenging seniority list was filed after 11 years of rejection of his representation. No satisfactory explanation for the delay was given. Their lordships held that making of repeated representations after the rejection of one representations could not be held to be a satisfactory explanation of the delay. The High Court should have rejected the petition on this preliminary ground. In this case, two representations were given in the year 1979 and when nothing was heard, the petitioneent slept over it for 10 years and before filing this writ petition they again made a representation in the year 1989. Thus, they are guilty of latches in prosecuting the legal remedies which were available to them and, therefore, they cannot now be heard at this late stage as regards cancellation of their examination which took place in the year 1979.

Mr. Jain further drew my attention to a decision of their lordships of the Supreme Court in K.R. Mudgal v. R.P. Singh AIR 1986 SC 2087, where in it has been held that the petition challenging inter se seniority was filed 18 years after issuance of first seniority list and, therefore, the petition deserves to be dismissed on the ground of latches alone.

Taking an over all view of the matter, I am firmly of the view that not only the duties rendered by the petitioners as apprentice can neither be treated to be regular service nor they can be granted any relief after the expiry of such a long period against the order Annexure-P. 9 dated 10.8.1979 cancelling their examination.

In the result, I find no force in this writ petition and it is hereby dismissed without any order as to costs.