HARYANA POWER GEN.CORP.LTD. Vs HARKESH CHAND .
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: C.A. No.-000100-000100 / 2013
Diary number: 31919 / 2010
Advocates: RAJESH MAHALE Vs
ANIS AHMED KHAN
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 100 OF 2013 (Arising out of S.L.P. (C) No. 29987 of 2010)
Haryana Power Generation Corporation Limited and Others ... Appellants
Versus
Harkesh Chand and Others ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The present appeal by special leave is directed
against the judgment and order dated 26th July, 2010
passed by the High Court of Punjab and Haryana at
Chandigarh in LPA No. 865 of 2010 whereby the Division
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Bench concurred with the view expressed by the learned
single Judge in CWP No. 1383 of 2009 whereunder the
respondents were held entitled for grant of Assured Career
Progression Scale (for short “the ACP Scale”) on
completion of ten years of service which included training
as apprentice.
3. The facts as have been undraped are that the three
respondents invoked the writ jurisdiction of the High Court
claiming the benefit of the second ACP Scale on
completion of twenty years of service on the base that
their period of training as apprentice had to be taken into
consideration. Such a claim was founded on the assertion
that they had joined as trainees between 17.4.1987 to
30.4.1987 and were subsequently absorbed and brought
into the cadre. On completion of ten years from the date
they entered the service as trainees, the first ACP Scale
was granted to them. However, when conferring of the
benefit of the second ACP Scale arose, the same was not
extended to them. The said action of the employer
compelled them to knock at the doors of the High Court
and during the pendency of the writ petition, by
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proceeding dated 23.4.2009, the benefits conferred under
the first ACP Scale was withdrawn referring to a
notification issued on 11.3.1990 which stipulated in clause
(4) that the trainees referred to therein would be entitled
to increment only on successful completion of their
training and in case of Plant Attendant Grade-II and
Technician Grade-II, increment on successful completion
of training would be granted but without arrears. Though
the writ petition was confined to grant of the second ACP
Scale, yet the learned single Judge required the counsel
for both the sides to address about the justifiability of
withdrawal of the benefit of the first ACP Scale and
decided both the facets. The said exercise was
undertaken by the learned single Judge as the primal issue
in respect of both the ACP Scales rested on the question
whether the period spent during training could be counted
towards regular satisfactory service or not.
4. It is not in dispute that the respondents were
appointed as Apprentice ITI Trainees by the erstwhile
Haryana State Electricity Board (for short “the Board”) for
a period of two years on fixed pay of Rs.350/- per month in
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1987. The Board, vide Office Order No. 706/Finance dated
27.2.1998, set out the eligibility criteria for conferment of
benefit of the ACP Scales. There is no dispute that the
respondents, who were Technicians Grade-II, were not
excluded from the application of the same. The only
question that really emerged for consideration before the
learned single Judge as well as by the Division Bench was
the relevant date from which the regular satisfactory
service was to be computed for grant of ACP Scales. The
learned single Judge, after referring to the clause and the
communications issued by the Board from time to time,
came to hold that the regular satisfactory service would
include the period spent by the persons as trainees. As
regards the withdrawal of the first ACP Scale, the learned
single Judge, referring to the notification dated 14.3.1990
and especially to clause (4) which dealt with grant of
increment and thereafter applying the same reasoning,
came to hold that clause (4) would have no operation to
override the Office Order dated 27.2.1998 which provides
how the regular satisfactory service could be reckoned
and, eventually, came to hold that the ACP Scale that had
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been withdrawn during the pendency of the writ petition
was absolutely erroneous. Being of this view, he quashed
the withdrawal order and issued a writ of mandamus
commanding the respondents therein to grant both the
first and second ACP Scales reckoning the period of
training towards the regular satisfactory service.
5. In the Letters Patent Appeal, the Division Bench
analysed the anatomy of clause 3(q) dealing with grant of
the second ACP Scale and the eligibility criteria, placed
reliance on the memorandum dated 27.3.1991 circulated
to all the departments to the effect that the period of
training of all employees should be treated as duty for all
intents and purposes, referred to the memo dated
2.1.1992 which stated that the period of training shall be
treated as duty for all intents and purposes, i.e., seniority,
leave, etc. and for experience in service for the purpose of
promotion and further relying on the memorandum dated
20.1.1992 which has laid down that such period would be
counted as experience in service for the purposes of
promotion, concurred with the opinion expressed by the
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learned single Judge and declined to entertain the appeal.
Hence, the present appeal by the appellants.
6. We have heard Mr. Shivendra Dwivedi, learned
counsel for the appellants, and Mr. R.K. Kapoor, learned
counsel appearing for the respondents.
7. At the very outset, we may note that the respondents
were granted the first ACP Scale on 16.6.1997, 13.1.1999
and 30.6.1998 with effect from 1.5.1997 instead of
1.11.1998 as on that date, they completed ten years of
service. The same was withdrawn during the pendency of
the writ petition where the grievance pertained to non-
grant of the second ACP Scale in terms of the Scheme
dated 27.2.1998 introduced by the Board. It is also apt to
note here that the respondents have already been granted
second ACP Scale with effect from 1.11.2008. Thus, the
only grievance is that the period shall differ in respect of
each respondent if the training period is not computed.
8. In the backdrop of the aforesaid narrow controversy,
we think it apposite to scrutinize the various documents
brought on record and how they are to be understood,
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appreciated and interpreted regard being had to the
contextual meaning of the term ‘training’.
9. The respondent No. 1 was appointed as Apprentice
ITI Trainee vide letter dated 28.3.1987 by the Board. It
was stipulated in the said letter that during the period of
training, he would get a fixed pay of Rs.350/- per month
and on successful completion of the training, he may be
appointed as Plant Attendant Grade-II/Technician Grade-II
in the scale of Rs.400-700 on temporary basis and he
would be exclusively posted in the Thermal Organisation.
It was also stipulated therein that he would enter into an
agreement with the Board that he would serve the Board
for at least five years after successful completion of
training and in case he would leave the service of the
Board, he would remit the entire cost incurred by the
Board in connection with the training during the period
and thereafter during the course of his appointment
together with interest. Similar letter was issued to the
other respondents. Vide Office Order No. 303/EOM/G-263
dated 6.6.1989, number of persons including the
respondents were appointed as Officiating Technicians
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Grade-II in the pay-scale of 950-20-1150-ED-25-1500 with
effect from the dates mentioned against their names. The
respondents were appointed on regular basis with effect
from 30.10.1988, 17.10.1988 and 25.10.1988 respectively
with the stipulation that they would remain on probation
for a period of two years.
10. As the factual narration would exposit, the Board, in
exercise of power under Section 79 of the Electricity
(Supply) Act, 1948, issued a notification on 14.3.1990 by
bringing certain amendments in the recruitment and
promotion for employees working in Thermal Power
Projects. The relevant part of the amendment reads as
follows: -
“Para 3(i) of Part-A shall be substituted and read as follows:
50% posts shall be filled-up by direct recruitment from amongst persons having passed 2 years ITI Course with Matric as minimum qualification. Such directly recruited Plant attendant Gr-II shall remain on training for a period of two years in regular pay scale of Plant Attendant Gr-II to be allowed by the Board from time to time. The Competent Authority may terminate the services of a Plant Attendant Gr-II (Trainee) without notice and without assigning any reason, if his work and
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conduct during the period of training is not found satisfactory.”
“Para-3 (i) of Part-B shall be substituted and read as follows:
50% posts shall be filled-up by direct recruitment from amongst persons having passed 2 years ITI Course with Middle examination with 2 years experience or ITI one year course and Middle Examination and with 3 years experience on similar works. Such directly recruitment Technician Gr-II shall remain on training for a period of two years in the regular pay scale to be allowed by the Board from time to time. The Competent Authority may terminate the services of a Technician Gr-II (Trainee) without notice and without assigning any reason, if his work and conduct during period of training, is not found satisfactory.
The trainees referred to above shall be entitled to the increment only on successful completion of their training. In case of Plant attendant Gr-II and Technician Gr-II, increment on successful completion of training shall be granted, but without arrears.”
[underlining is ours]
11. We have referred to the substituted clauses in
extenso to appreciate the use of the word ‘training’
therein after appointment to a post and the stipulation
relating to the grant of increment. In the context of this
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notification, the policy relating to ACP Scale granted under
the ACP Scheme and the clarificatory communications are
to be understood.
12. Coming back to the narration, recruitment and
promotion policy as amended, the F.A. & C.A.O., PTPS,
HSE, Panipat, vide Memo dated 7.12.1990 sought certain
clarification in relation to grant of increments. The
clarification sought was to the following effect: -
“In this connection it may please be clarified whether the period of training in all the cases will count towards increment, leave salary and pension. The above clarification may please be issued at the earliest so that the cases are dealt with accordingly on account of grant of increment and leave salary etc.”
13. On 27.3.1991, the Secretary, HSEB, clarified the
position by stating as follows: -
“Board vide its notification No. 57, 58, 59, 60/Reg-137, dated 14.03.1990 and Notification No. 76/Reg-39/L, dated 13.09.90 have granted regular pay scales to the trainee(s) of all categories w.e.f. 29.1.1990. In this respect the Field Officers have sought for a clarification whether the period spent by the trainee on training is to be treated as duty for all intents and purposes or not.
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After considering the pros and cons of the case, it has been decided that the period spent by the trainee(s) of all categories on training shall be treated as duty for all intents and purposes i.e. grant of increment in accordance with the provisions as contained in the Policy, leave and seniority i.e. from the date of joining in this cadre.”
[emphasis supplied]
14. In continuation of the aforesaid clarificatory
memorandum dated 27.3.1991, the Board issued another
memorandum on 22.11.1991. The said clarification
related to grant of regular pay scale to the trainees of all
categories and in that letter, it has been stated as follows:
-
“In this connection, it is stated that some field offices have sought for a clarification as to whether the benefit for the grant of annual increment under the provisions as contained in letter dated 27.3.91 is to be given to all trainee(s), who were appointed during the year, 1987, 1988 & 1989 etc.”
15. After referring to the issue which required
clarification, the Board clarified that it has decided that
monetary benefits of regular pay scale had to be granted
to the trainee(s) of all categories with effect from
29.1.1990 but the benefit of grant of annual increment
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under the provisions as contained in letter dated
27.3.1991 has to be given to the trainee(s) of all
categories whose services have been regularized on
29.1.1991 or thereafter. It had been further stated that
the consequential benefits would accrue only from the
date on which the regular pay scale has been granted to
the trainees of all categories.
16. As the facts have been further uncurtained, on
27.1.1998, the Board introduced the Assured Career
Progression Scheme (for short “the ACP Scheme”) with the
objective to provide such Board employees who fall within
the scope of the Scheme at least two financial
upgradations including the financial upgradation, if any,
availed by such Board employees as a consequence of the
functional promotion. Clause 2 excludes certain
categories of employees, namely, appointed on ad hoc
basis, work charged basis, part time paid out of
contingencies and a daily wager from getting the benefit
of the Scheme. Clause 3 deals with the definitions. It
defines in Clause 3(b) “direct recruit fresh entrant”. The
same, being relevant, is reproduced below: -
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“(b) “Direct Recruited Fresh Entrant” with reference to a post or a Board Employee means the post on which such Board employee was recruited as a regular and direct recruitee in the Board service and is in continuous employment of Board since such recruitment;”
17. Clause 5 deals with the eligibility for grant of ACP
Scales. That being the thrust of the controversy the
relevant part of the said clause is reproduced below: -
“5. Eligibility for Grant of ACP Scales:
(1) Every Board employee who, after a regular satisfactory service for a minimum period of 10 years, has not got any financial upgradation in terms of grant of a pay scale higher than the functional pay scale prescribed for the post as on 31.12.1995, on which he was recruited as direct recruited fresh entrant: -
(a) either as a consequence of his functional promotion in the hierarchy, or
(b) as a consequence of the revision of pay scale for the same post, or
(c) as a consequence of any other event through which the functional pay scale of the post has been upgraded, with respect to the functional pay scale prescribed for the post as on 31.12.1995, shall for the purposes of drawal of pay; be eligible for placement into the
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First ACP scale with reference to him.
(2) Every Board employee who, after a regular satisfactory service for a minimum period of 20 years, has not got more than one financial upgradation in terms of grant of pay scale higher than the functional pay scale prescribed for the post as on 31.12.1995 on which he was recruited as a direct recruited fresh entrant: -
(a) either as a consequence of his functional promotion in the hierarchy, or
(b) as a consequence of the revision of pay scale for the same post, or
(c) as a consequences of any other event through which the functional pay scale of the post has been upgraded, with respect to the functional pay scale prescribed for the post as on 31.12.1995, shall for the purposes of drawal of pay; be eligible for placement into the First ACP scale with reference to him.
Provided that grant of ACP scale shall also be considered financial upgradation for the purpose of this para.
NOTE : For the purposes of this scheme regular satisfactory service would mean continuous service counting towards seniority under H.S.E.B. including continuous service in P.S.E.B. before reorganization, commencing from the date
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on which the board employee joined his service after being recruited through the prescribed procedure or rules regulations etc. for regular recruitment, in the cadre in which he is working at the time of being considered his eligibility for grant of ACP scales under this scheme and further fulfilling all the recruitments prescribed for determining the suitability of grant of ACP scales. The period spent on ad hoc basis; work charged basis; contingent basis and daily wages will not be counted for the purpose of counting of prescribed length of “Regular Satisfactory Service” for this scheme.”
[emphasis supplied]
18. In this backdrop, it is to be seen whether the period
spent in apprenticeship would be counted towards regular
satisfactory service. The learned single Judge as well as
the Division Bench has returned a finding in favour of the
respondents solely on the basis of the clarificatory letters
and communications. Before we advert to the
quintessential tenor of the said communications, it is
necessitous to understand the nature of appointment, the
concept of an apprentice, his rights under the law and the
basic ingredients of regular satisfactory service.
19. As has been stated earlier, the respondents were
appointed as apprentices ITI trainee for a period of two
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years. Each of them were paid a fixed salary of Rs.350/-.
After completion of the training, it was mentioned in the
letter of appointment that they may be appointed to the
post of Officiating Technical Grade-II in the pay scale of
Rs.400/700 on temporary basis.
20. Section 2(aa) of the Apprentices Act, 1961 (for short
“the 1961 Act”) defines “apprentice” which means a
person who is undergoing apprenticeship training in
pursuance of a contract of apprenticeship.
21. Section 2(aaa) defines “apprenticeship training”
which means a course of training in any industry or
establishment undergone in pursuance of a contract of
apprenticeship and under prescribed terms and conditions
which may be different for different categories of
apprentices. Section 18 clearly states that apprentices
are trainees and not workers.
22. In U.P. State Electricity Board v. Shiv Mohan
Singh and Another1, A.K. Mathur, J., speaking for Hegde,
J. and himself, while dealing with the status of apprentice,
has stated thus: - 1 (2004) 8 SCC 402
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“Therefore a combined reading of the sections as well as Rules makes it clear that apprentices are only persons undergoing training and during that training they are entitled to get a particular stipend, they have to work for fixed hours and at the end of period of training they have to appear in the test and a certificate is issued to them. There is no obligation on the part of the employer to give them any employment whatsoever. The position of the apprentice remains as an apprentice trainee and during the period of training they will not be treated as workmen. Only obligation on the part of the employer is to impart them training as per provisions of the Act and Rules and to pay them stipend as required under Rule 11 and beyond that there is no obligation on the part of the employer to accept them as his employees and give them the status of workmen. There is no relation of master and servant or employer and employee.”
23. Be it noted, in the said case, in paragraph 51, it has
been laid down that the 1961 Act is a complete code in
itself and it lays down the conditions of the apprentices,
their tenure, their terms and conditions and their
obligations and what are the obligations of the employer.
It also lays down that the apprentices are trainees and not
workmen and if any dispute arises, then the settlement
has to be made by the Apprenticeship Advisor as per
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Section 20 of the Apprentices Act, 1961 and his decision
thereof is final. The nature and character of the apprentice
is nothing but that of a trainee and he is supposed to
enter into a contract and by virtue of that contract, he is
to serve for a fixed period on a fixed stipend and that does
not change the character of the apprentice to that of a
workman under the employer where he is undergoing the
apprenticeship training. Sub-section (4) of Section 4 only
lays down that such contract should be registered with the
Apprenticeship Adviser, but by non-registration of the
contract, the position of the apprentice is not changed to
that of a workman. From the scheme of the Act, the
apprentice is recruited for the purpose of training as
defined in Section 2(aa) of the Apprentices Act, 1961 and
from the language employed in Sections 6 and 7, it is
more than clear that the nature and character of the
apprentice is that of a trainee only and on the expiry of
the training, there is no corresponding obligation on the
part of the employer to employ him.
24. Thereafter, the majority, referring to Section 22 of
the Act, opined as follows: -
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“Section 22 makes it abundantly clear that at the end of the apprenticeship training, it is not obligatory on the part of the employer to offer an employment to an apprentice who has completed the period of apprenticeship. It is only if the terms of the contract of the apprenticeship lay down a condition that on successful completion of an apprenticeship training, an employer will offer him an employment then it is obligatory on the part of the employer to do so. If there is no such condition stipulated in the apprenticeship contract then the employer cannot be compelled to offer employment to such apprentice. At the same time, it is not obligatory on the part of the apprentice to serve that employer if there is no such stipulation to this effect. So it is a mutual thing and it depends on the terms of contract. The survey of all these provisions of the Acts and the Rules as mentioned above, makes it clear that the character and status of apprentice remains the same and he does not become workman and labour laws are not attracted.”
S.B. Sinha, J., in his concurring opinion, has stated
thus: -
“Moreover in terms of Section 22 of the Act, the employer has no statutory liability to give employment to an apprentice.”
25. In Narinder Kumar and Others v. The State of
Punjab and Others2, a two-Judge Bench dwelt upon the 2 AIR 1985 SC 275
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letter of appointment of apprentices and came to hold
that the employer was bound to appoint the apprentices
in the available vacancies because of Section 22(2) of the
1961 Act and the contractual obligations arising out of
para 2 of the letter of appointment which stated that the
apprentices shall be absorbed in the department if there
are vacancies. Be it noted, emphasis was laid on the
nature of the contract.
26. In Dhampur Sugar Mills Ltd. v. Bhola Singh3,
while dealing with an award passed by the Labour Court
under the U.P. Industrial Disputes Act relating to
apprentices, a two-Judge Bench opined thus: -
“14. If the respondent was appointed in terms of the Apprentices Act, 1961, he will not be a workman, as has been held by this Court in Mukesh K. Tripathi v. Senior Divisional Manager, LIC4 and U.P. SEB v. Shiv Mohan Singh (supra).
15. In terms of the provisions of the Apprentices Act, 1961, a trainee or an apprentice has no right to be absorbed in services.”
27. We have referred to the aforesaid pronouncements
solely for the purpose that an apprentice does not have 3 (2005) 2 SCC 470 4 (2004) 8 SCC 387
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a statutory right to claim an appointment and the
employer is not under any statutory obligation to give
him employment. However, if the terms of the contract
of apprenticeship lay down a condition that on
successful completion of apprenticeship an employer
would offer him an employment, then it is obligatory on
his part to do so. In the absence of such a condition,
there is no obligation. It depends on the terms of the
contract. In the case at hand, as the letter of
appointment would show, the employer had only stated
that on successful completion of the training, the
apprentice may be appointed as Plant
Attendant/Technician Grade-II. Thus, it was not a
mandatory term incorporated in the agreement casting
an obligation on the employer to appoint him.
28. Having dealt with the rights of an apprentice, we
may presently proceed to dwell upon the issue whether
any of the clarificatory letters/circulars conferred any
benefit on these employees so that they could be
treated to be in regular service. On a perusal of the
notification issued by the Board, it is clear as crystal
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that it relates to two categories of direct recruits who
shall undergo training for a period of two years in the
regular pay scale. Thus, the said notification has no
application to apprentices who avail the training. In
the clarification issued on 27.3.1991, there is a mention
with regard to the regular pay scale in the notification
dated 13.9.1990. The query was limited to the issue
whether the training period of such a trainee would be
counted for all intents and purposes or not. In that
context, it was clarified that the period spent by the
apprentice of all categories shall be treated as duty for
all intents and purposes, i.e., for grant of increment in
accordance with the provisions as contained in the
policy, leave and seniority, i.e., from the date of joining
in this cadre. It is worth noting that the Board had
issued further clarification that the benefit of grant of
annual increment under the provisions as contained in
the letter dated 27.3.1991 was to be given to the
trainees of all categories whose services had been
regularized on 29.1.1991 or thereafter, and the
consequential benefit should accrue only from the date
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on which the regular pay scale has been granted to the
trainees of all categories. Clause 5 of the ACP Scheme
which provides for eligibility criteria, in its note
stipulates that for the purpose of the scheme, regular
satisfactory service would mean continuous service
counting towards seniority under the Board including
the continuous service in PSEB before reorganization.
It has been clearly stated that period spent on ad hoc
basis, work charged basis, contingent basis and daily
wages would not be counted for the purpose of
counting the prescribed length of regular satisfactory
service for the scheme. The respondents, as is evident,
were appointed on different dates, i.e., 30.10.1988,
17.10.1988 and 25.10.1988 respectively as Technicians
Grade-II in the pay scale on regular basis. Their period
of probation was for two years. The letter/circular
dated 27.3.1991 emphasizes the terms from the date
of joining in the cadre. As is perceptible from the
clarificatory letter dated 27.3.1991, the trainees of all
categories have been granted regular pay scale from
21.1.1990 and decision had been taken that the
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training period or period spent as trainees of all
categories shall be treated as duty for all intents and
purposes. On 20th of January, 1992, it was further
clarified that the period spent by the trainees of all
categories on training would be counted as experience
in service for the purposes of promotion. On a scrutiny
of the promotion policy, the ACP Scheme and the
communications, we find that the High Court has erred
in its appreciation of the contents of the promotion
policy and the conditions incorporated in the scheme
and the clarificatory letters issued from time to time
and their essential purport. The Board, on 14.3.1990,
substituted and added certain clauses to the
recruitment and promotion policy. We have
reproduced the same earlier and on a proper scrutiny,
it is perceivable that 50% posts are to be filled by
direct recruitment from amongst persons who have
passed 2 years ITI course with Matric as minimum
qualification and such directly recruited Plant
Attendants Grade-II would remain on training for a
period of two years on the regular pay scale of Plant
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Attendant Grade-II to be allowed by the Board from
time to time, and the other 50% is be filled up by direct
recruitment from amongst persons who have passed
two years ITI course with middle examination with two
years experience or ITI one year course with middle
examination and with three years experience of similar
works. Such directly recruited Technician Grade-II shall
remain on training for a period of two years in the
regular pay scale. The clarificatory letter has to be
read in the said context and we are disposed to think
so as the persons appointed under the policy in the
regular pay scale are required to go on training. The
clarification sought related to grant of increment and
computation of period that is spent as trainee in the
capacity of Plant Attendant Grade-II and in that
context, the clarification issued was that the training of
all categories on training would be counted. It is
worthy to note that the respondents were not recruited
under the said policy. They were appointed as
apprentices ITI trainee on 28.3.1987 and they were not
given any kind of post. It is only mentioned that they
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may be appointed as Plant Attendant Grade-
II/Technician Grade-II. Thereafter, they were appointed
on different dates as Officiating Technician Grade-II.
The regular pay scale was given from the date of
appointment. Prior to that, it was a fixed pay. They
were not working on a post. They did not belong to any
cadre. In fact, they were not recruited and, hence, the
term trainee which has been referred to in various
clarificatory letters has been misconstrued by the High
Court.
29. In view of the aforesaid analysis, we conclude and
hold that the judgments rendered by the learned single
Judge as well as by the Division Bench are
unsustainable and are, accordingly, set aside.
However, we clarify that if any financial benefit had
been availed by the respondents, the same shall not be
recovered, but their dates for grant of ACP Scale shall
remain as determined by the appellants. Accordingly,
the appeal is disposed of. The parties shall bear their
respective costs.
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……………………………….J. [K. S. Radhakrishnan]
……………………………….J. [Dipak Misra]
New Delhi; January 07, 2013
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