JUDGMENT
S.P. Srivastava, J.
1. Feeling aggrieved by the directions issued by the learned single Judge while disposing of the writ petition filed by the respondent/ petitioner, the employer-appellants have now come up in Letters Patent Appeals seeking redress praying for the reversal of the impugned order.
2. We have heard the learned counsel for the appellants as well as the learned counsel representing the respondent/petitioner, and have carefully perused the record.
3. The facts in brief shorn of details, and necessary for the disposal of this appeal lie in a narrow compass: The petitioner- respondent holds a diploma in Electrical Engineering which he has obtained in the year 1980. He had been appointed as ‘Technician Apprentice’ under the Apprentices Act, 1961 in the establishment of the Madhya Pradesh Electricity Board on a fixed stipend of Rs. 520/-per month vide the order dated November 10, 1980 and had joined as such on November 26, 1980. His training period was extended for a period of six months in view of the recommendations of the ‘appraisal committee’. It was further extended for a period of three months. These extensions had been granted finding his work and performance to be unsatisfactory. The ‘appraisal committee’ consisted of General Manager/Chief Engineer and two Superintending Engineers. On the successful completion of his training, he was selected for appointment to the post of Sub-Engineer/Junior Engineer and absorbed in the cadre of Junior Engineers with effect from November 26, 1982, on a temporary basis in the regular time scale of pay admissible to such an appointee. This appointment was subject to various conditions including a condition that he had to pass the departmental examination in accounts and in such subjects as may be prescribed in maximum three attempts within the specified period.
4. The Madhya Pradesh Electricity Board in its policy decision circulated vide the circular dated September 15, 1955, had laid down that the seniority of the employees in various cadres was to be determined either on the basis of appointment or on the date of confirmation based on their position shown in the selection panel, and where more than one candidate was selected in the same batch, the seniority was to be regulated in accordance with the order of merit in the panel recommended at the time of selection irrespective of the date of joining or initial pay offered, making it clear that for the purpose of determining the seniority, an employee’s continuous officiating service alone will be counted.
5. Vide the circular dated March 9, 1990 the aforesaid Board had altered the criteria for determining the seniority to a limited extent providing that the seniority of the confirmed employees in their respective cadre will be determined on the basis of the length of continuous officiation based on the priority of selection in panel prepared by the Selection Committee at the time of selection.
6. For the purpose of determination of the seniority of the petitioner, the date which had been taken into account was the date on which he had completed his apprentice training period. This date was November 26, 1982. The petitioner objected to the fixation of his seniority on the aforesaid basis and submitted a representation dated August 5, 1991 asserting that the aforesaid date should be altered to November 26, 1981 and his seniority be determined accordingly as the period of apprentice training could not be deemed to exceed beyond one year. In support of his claim, he placed reliance upon the decision of this Court in the case of M.P. Electricity Board v. Basant Kumar reported in (1991-I-LLJ-323) (MP) and the fact that B.K. Pandey and R.S. Sharma who were also diploma trainees and were junior to him had been granted absorption in service on regular basis taking into account the period of their apprenticeship to be only one year. He claimed parity with those persons and alleged that he was meted out with a treatment which was discriminatory.
7. There was delay in the disposal of the aforesaid representation with the result that the petitioner/respondent had to approach this Court by means of a writ petition No. 1133 of 1992 which was disposed of by this Court vide the judgment and order dated November 30, 1994, directing the appellants to consider the representation filed by the petitioner/ respondent and take a decision thereon within a period of three months from the date of communication of the order.
8. Subsequent to the aforesaid judgment and order passed by this Court, the petitioner/ respondent moved an application dated December 8, 1994 requiring the Joint Secretary, Personnel, Madhya Pradesh Electricity Board that in place of the date November 26, 1982, the date November 26, 1981 be substituted and his seniority be determined treating the period of his apprenticeship to be of one year only taking into account the decision of the Court in the case of Basant Kumar (supra).
9. The aforesaid representation was rejected by the employer vide the order dated February 28, 1995.
10. Being aggrieved, the petitioner/ respondent filed a writ petition which has given rise to the present appeal.
11. The appellants/employer contested the writ petition asserting that the period of apprenticeship could not be taken into account for the fixation of the seniority and the seniority of the petitioner had been determined taking his entry in service from the date November 26, 1982, that is the date on which he was appointed in the establishment on regular post of Sub-Engineer. In the return/counter-affidavit it had been asserted that the work and performance of the petitioner during his apprenticeship had been found to be unsatisfactory. It was extended for a period of six months and thereafter for a period of three months. Reliance had been placed on the various circulars issued by the Board regulating the fixation of seniority. It was asserted that the petitioner was not entitled to any relief on the basis of the alleged discriminatory treatment and could not be treated to be at par with Shri Pandey and Shri Sharma as claimed.
12. The learned single Judge vide the impugned order drawing support from the observations made by this Court in the case of M.P. Electricity Board v. Basant Kumar (supra) held that if an employee remained as an apprentice for more than one year then he was not to be considered as an apprentice and expressing the view that the petitioner in that case was entitled to the same benefits as was given to his colleagues and whose cases were under consideration in the aforesaid case, the Board was required to consider the entire matter in the light of the order passed by this Court holding that the apprenticeship cannot be of a period of more than one year. The present appellants were required to pass an order in the light of the observations made in the body of the judgment within a period of three months.
13. The learned counsel for the appellants has strenuously urged that the ratio of the decision in the case of Basant Kumar (supra) was not at all attracted to the facts and circumstances of the present case and the aforesaid decision or the observations made therein could not be taken to furnish a justifiable basis for issuing the impugned directions. It has further been urged that in any view of the matter, an order passed in favour of the persons with whom the petitioner is claiming parity could not be held sufficient to sustain the plea of discrimination. What has been urged is that the lis in the case of Basant Kumar (supra) was not in regard to any question relating to the fixation of seniority. It was confined to the matter relating to the validity or otherwise of an order terminating the services of the petitioners in that case. This Court in its decision in the aforesaid case had found that the petitioners therein were workmen who could not be taken to be apprentices and dealt with accordingly.
14. The learned counsel for the respondent has however tried to support the impugned order on the reasonings contained therein and has heavily relied upon the observations made in the decision of this Court in the case of Basant Kumar (supra).
15. In the present case what we find is that not only in the order dated November 10, 1980 relied upon by the petitioner himself, it had been clearly indicated that he had been taken in service as a ‘Technician Apprentice’ under the provisions of the Apprentices Act, 1961 but even in his representation, the petitioner had clearly admitted that he was an ‘apprentice’ as envisaged under the aforesaid Act. It is also not in dispute and in fact it is clearly borne out from the materials placed on the record that he could not complete the apprenticeship training within the time stipulated therefor on account of his unsatisfactory performance and on the recommendations of the duly constituted ‘appraisal committee’, his period of apprenticeship training was extended initially for a period of six months and thereafter for a period of three months. He could complete the training after two years whereas the persons with whom parity is claimed had completed the apprenticeship training within the period stipulated therefor.
16. It should not be lost sight of that seniority is a question of comparison in respect of the incumbents in the same cadre and is ordinarily determined on the basis of the length of service. As observed by the Apex Court in its (sic) in the case of Bhey Ram Sharma v. The Haryana State Electricity Board, reported in (1994-I-LLJ-753) (SC) a person who enters the service first shall rank senior unless there is some Rule providing otherwise which could be held to be consistent with Articles 14 and 16 of the Constitution. While making the aforesaid observations, the Apex Court had referred to the decisions in the case of N.K. Chauhan v. State of Gujarat, reported in AIR 1977 SC 251, Paramjit Singh v. Ram Rakha Mal, reported in (1983-I-LLJ-213) (SC), A. Janardhana v. Union of India, reported in (1983-II-LLJ-175) (SC) and A.N. Pathak v. Secy. to the Government, Ministry of Defence, reported in (1987-II-LLJ-140) (SC) as well as in the case of Direct Recruit Class-II Engineering Officers’ Association v. State of Maharashtra, reported in (1995-III-LLJ(Suppl.)-144) (SC). Obviously, therefore, in the absence of any rule to the contrary, it is the entry into the cadre which will have to be taken as the determining factor for the purpose of fixation of the seniority. However, a person entering into a cadre as a stop gap arrangement cannot claim seniority as observed by the Apex Court in the case of Direct Recruit Class-II Engineering Officers’ Association (supra).
17. The question which therefore arises for consideration in this case is as to whether the period of apprenticeship training could be counted towards seniority.
18. We are of the considered opinion that the period of apprenticeship training, taking into consideration the scheme underlying the Apprentices Act, 1961, has to be taken as anterior to the entry into service or cadre that is a separately sanctioned unit of a service.
19. In the present case, the petitioner could successfully complete his apprenticeship training only on November 26, 1982. He had been granted the appointment on regular basis in the cadre of Sub-Engineers on November 26, 1982 as indicated in the return/counter-affidavit.
20. We are clearly of the opinion that the petitioner was not entitled to any such presumption whereunder his apprenticeship training period was to be deemed to have been completed on the expiry of the one year especially when the duly constituted ‘appraisal committee’ had found his work and performance as an apprenticeship trainee to be far from satisfactory requiring extension of the period of training initially for a period of six months and thereafter for a period of three months.
21. There is yet another aspect of the matter.
22. It may be noticed that the Apex Court in its decision in the case of Chandigarh Administration v. Jagjit Singh, reported in AIR 1995 SC 705 had clarified that the there fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order.
23. The Apex Court in its aforesaid decision had made it clear that by refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act or order nor can such illegal order constitute the basis for a legitimate complaint of discrimination, indicating further that giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest and will amount to negation of law and the rule of law. It was further observed that the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles.
24. Taking into consideration the facts and circumstances as brought on record, we are of the considered opinion that the petitioner was not entitled to the reduction of his apprenticeship training period as claimed and further no case has been made out for the issuance of any direction on the plea of discrimination.
25. In the aforesaid view of the matter, the impugned order passed by the learned single Judge is not at all sustainable in law.
26. In the result, this appeal succeeds. The impugned Judgment and Order passed by the learned single Judge is set aside and the writ petition is dismissed.
27. There shall however be no order as to cost.
