U.L. Bhat, J.@mdashPetitioner was selected as an apprentice in the Cochin Shipyard Ltd. (first respondent) in the trade Mechanical (Diesel) for a
period of two years as per agreement duly executed. The contract was terminated as per Ext. P1, order at the expiry of the term of the contract.
Under Ext. P1 apprentices were advised to register their names in the Employment Exchange so that their cases could be considered for
appointment against future vacancies in the Company. Petitioner completed his training in November, 1981. Among the apprentices in his batch,
seven, persons including petitioner were not absorbed permanently in the Shipyard. It appears, apprentices who completed training in the
subsequent batches (respondents 3 to 5 were absorbed under Ext. P2 order. Petitioner has therefore filed this original petition seeking to quash
Ext. P2 in so far as it relates to respondents 3 to 5, seeking a writ of mandamus forbearing further appointments without reference to Employment
Exchange and to absorb petitioner consistent with his qualifications and training in the trade. Petitioner was trained in the sixth batch of apprentices
in the trade Mechanical (Diesel). Respondents 3 to 5 appointed under Ext. P2 as Fitters Structural Gr. I were trained in the eighth batch. This job
falls within the category of Mechanical (Diesel). According to petitioner, appointment given to respondents 3 to 5 overlooking his prior claim
amounts to hostile discrimination violative of Articles 14 and 16 of the Constitution of India. Though in the original petition reliance has not been
placed by the petitioner on the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short ''the Act''),
learned counsel for the petitioner at the stage of arguments placed reliance on the same.
1A. Second respondent has filed counter affidavit. On behalf of respondents 4 and 5, fourth respondent has filed counter affidavit. Second
respondent is the Manager (Personnel) under the first respondent. His counter affidavit shows that petitioner was selected as apprentice under the
Apprentices Act for training in the designated trade, Mechanical (Diesel). Petitioner had executed contract of apprenticeship which was duly
registered with the Regional Director of Apprenticeship Training, Southern Region, Madras. Under the Apprentices Act, there is no obligation on
the part of the employer to offer employment to apprentices on completion of apprenticeship training. The same is the position regarding the
contract of apprenticeship also. Therefore, petitioner has no legal right to compel his appointment. During earlier years when the Cochin Shipyard
was established, there were large number of vacancies in different trades. There were not enough suitable or qualified candidates available for
recruitment. Therefore, first respondent had to appoint apprentices on completion of training. Apprentices in the five batches could be so absorbed
for employment. Petitioner was an apprentice in the sixth batch. By that time vacancies available were few in number and only some of the
apprentices could be absorbed-Petitioner could not be absorbed for want of vacancy. Subsequent vacancies arose only in 1983, long after
petitioner left the Shipyard. At that time, apprentices of the eighth batch had just completed training and three among them were appointed under
Ext. P2. This did not amount to discrimination against petitioner. This was done as per practice adopted earlier to appoint apprentices on
completion of training subject to availability of vacancies. There was no discrimination or arbitrariness or violation of Articles 14 and 16 of the
Constitution as alleged.
2. Petitioner has not made out his right to compel first respondent to give him appointment. His claim, such as it is, could only be on the basis that
he was an apprentice trained under the first respondent in the sixth batch between 1979 and 1981. That was governed by a contract of
apprenticeship. The contract did not confer on him any right to employment. On the other hand, the contract, as the counter affidavit would show,
clearly stated that it shall not be obligatory for the employer to offer employment to the petitioner after completion of the period of apprenticeship
and it shall not be obligatory on the part of the apprentice also to accept employment under the employer. This part of the contract is consistent
with the provisions of the Apprentices Act, 1961. Petitioner was appointed apprentice by virtue of the provisions of this Act. It is necessary only to
refer to Sec. 22 of this Act. Sub-sec. (1) of Sec. 22 states that it shall not be obligatory on the part of the employer to offer any employment to
any apprentice who has completed the period of his apprenticeship training in his establishment, nor shall it be obligatory on the part of the
apprentice to accept an employment under the employer. Sub-sec. (2) states that notwithstanding anything in Sub-sec. (1), where there is a
condition in a contract of apprenticeship that the apprentice shall, after the successful completion of the apprenticeship training, Serve the
employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to
serve the employer in that capacity for such period and on such remuneration as may be specified in the contract.
3. Learned counsel for the petitioner placed reliance on a decision of the Supreme Court in Narinder Kumar and Others Vs. State of Punjab and
Others, . That was a case in Which the contract of apprenticeship clearly stipulated that on successful completion of the training, the apprentice
would be absorbed in the department if there wore vacancies without any commitment. The Supreme Court held that by virtue of the contract, the
apprentice had a right to be appointed subject to availability of vacancies and there was commitment on the part of the management to appoint him
subject to availability of Vacancy. By virtue of the contract, the case came within the purview of sub-sec. (s) of Sec. 22 of the Apprentices Act.
But where the contract does not contain any such provision, it is Sub-sec. (1) of Sec. 22 Which would apply. The employer is not obliged to offer
employment to apprentice on completion of the period of training and the apprentice is not obliged to accept employment under the employer.
4. Learned counsel for the petitioner placed strong reliance on the provisions of the Employment Exchanges (Compulsory notification of vacancies)
Act to contend for the position that action of the first respondent in appointing respondents 3 to 5 without reporting the vacancies to the
Employment Exchange was illegal. According to learned counsel, appointments could have been made only of persons advised by the Employment
Exchange. Petitioner had registered his name in the Employment Exchange and there was every likelihood of his name being advised by the
Employment Exchange for consideration for appointment. That opportunity was denied to him since the vacancies were not reported to the
Employment Exchange.
5. Sub-sec. (1) of Sec. 4 of the Act states that after the commencement of the Act, the employer in every establishment in public sector before
filling up any vacancy in any employment in that establishment shall notify that vacancy to such Employment Exchange as may be prescribed. Sub-
sec. (2) states that appropriate Government may by notification published in the gazette require that the employer in every establishment in private
sector or every establishment pertaining to any class or category of establishments in private sector shall before filling up any vacancy in any
employment in that establishment, notify that vacancy to such Employment Exchange as may be prescribed and the employer shall thereupon
comply with such requisition. Establishment of the, first respondent is an establishment in public sector. Therefore, it is contended that the first
respondent had obligation to notify the vacancies to the Employment Exchange concerned and any appointment made disregarding the provisions
of Sec. 4 (1) of the Act should be treated as illegal.
6. No doubt, by virtue of Sec. 4(1) of the Act, first respondent should have notified the vacancies to the Employment Exchange concerned.
Question is whether the provision is mandatory in the sense that non-observance thereof involves consequence of invalidity of appointment. No
doubt, the provision uses the expression ""shall"". But that is not decisive of the intention of the legislature to make it mandatory. In border to decide
this question, the Court has to carefully study the nature, design and scope of the statute, the consequences which would follow from considering it
one way or the other, the impact of other provisions whereby the necessity of complying with the provision is avoided or projected provisions for
penalty for non-compliance of the provision serious or trivial nature of the consequences there of and whether the object of the legislation would be
protected or defeated and other relevant circumstances. It is not enough that the act required to be done is for public benefit so as to be regarded
as mandatory. The controversy must be decided on the basis of practical reasoning and public convenience.
7. The Act is to provide for compulsory notification of vacancies to Employment Exchanges. Sec. 3 makes the Act inapplicable in relation to
vacancies in Certain establishments. Sub-sec. (1) of Sec. 4 requires the employer of every establishment in public sector to notify vacancies to the
Employment Exchange concerned before filling up the Vacancies. Sub-sec. (2) enables appropriate Government to extend this provision to
establishments in private sector also Sub-sec. (4) states Nothing in Subsections (1) and (2) shall be deemed to impose any obligation upon any
employer to recruit any person through the employment exchange to fill any vacancy merely because that vacancy has been notified under any of
those sub-sections.
8. It appears to me that Sub-sec. (4) is of vital significance. It declares that the employer has no obligation to recruit any person through the
employment exchange merely because the employer has complied with Sub-sec. (1) If a vacancy is reported to the employment exchange by an
employer, under Sub-sec. (1), normally one Would expect the employment exchange to submit names of persons registered in the Employment
Exchange, Even so, because of Sub-sec. (4) the employer is not obliged to recruit anyone of the persons advised by the employment exchange.
He could appoint any other person. That is not inhibited by the provision. Such action could not be illegal. If this is the consequence where an
employer complies with Sub-sec. (1), it is extremely difficult to hold that this will not be the result where the employer has not complied with sub-
sec. (1).
9. Sec. 5 of the Act requires that the employer in every establishment in public Sector shall furnish such information or return as may be prescribed
in relation to vacancies that have occurred or are about to occur to such employment exchanges as may be prescribed. Sec. 6 states that such
officer of the Government as may be prescribed in this behalf, or any person authorised by him in writing shall have access to any relevant record
or document in the possession of any employer required to furnish information or return under Sec. 5 and may enter at any reasonable time any
premises where he believes such record or document to be and inspect or take copies of relevant records or documents or ask any question
necessary for obtaining any information required.
10. Sec. 7 provides for penalties. If any employer fails to comply with the provisions of Sub-sec. (1) or Sub-sec. (2) of Sec. 4, he shall be
punishable in the manner stated therein. Sec. 8 deals with cognizance of offences. No prosecution for an offence under the Act shall be instituted
except by, or with the sanction of, such officer of Government as may be prescribed in this behalf or any person authorised by that officer in
writing. Sec. 10 gives the Central Government power to frame rules for carrying out the different purposes of the Act,
11. Provision for imposition of penalties cannot be treated as, decisive of, the legislative intent to make Sub-sec. (1) of Sec. 4 mandatory
particulary in the light of Sub-sec. (4) of Sec. A : Object of the statute is to compel employers to notify vacancies in their establishments to, the
employment exchanges concerned. The statutes : does not prohibit appointment being made by employers to fill up vacancies, occurring, in their,
establishments. The Statute does not contain any provision rendering invalid appointments made otherwise than through the employment exchanges
and without complying with sub-sec. (1) of Sub-sec. (2) of Sec. 4. There is a specific provision which declares that it is not obligatory on the part
of the employer to appoint persons, advised by the employment exchange.
12. On a consideration of the scheme of the Act, object which it is intended to serve and in the light, of Sub-sec. (4) of Sec. 4, I have to hold that
Sub-sec. (1) is not mandatory and appointments made by the employer will not be rendered invalid merely by reason, of the employer not
complying with the requirements, of sub-section (1). ""of Sub-sec. (2) of Sec. 4. I am strengthened in this view by a decision of the Mysore High
Court in Narastmhamurthi v. Director of Collegiate Education (1967 (2) L.L.J. 606) and a decision of the Allahabad High"" Court in Sambhu Natk
Tewari v. The, State of Uttar Pradesh and others (1975(2) S.L.R. 636). In these circumstances, I have to hold that appointment of respondents 3
to 5 is not invalid. They, were trained in the eight batch of apprentices. When, the training programme was complected, vacancies were available
and were offered to them. That was what happened when training programme of apprentices in the first five batches was completed. That was
what happened when the training programme of the sixth, batch in which petitioner was also trained, was completed. Unfortunately, at that time
sufficient vacancies were not available to accommodate petitioner. I am unable to find anything unreasonable or arbitrary in, the action of the first
respondent. I, may also advert to the submission made by learned counsel for respondents 1 and 2 to the effect that hereafter first respondent, will
report all vacancies to the employment exchange and appointments will be made through the employment exchange. These submissions are
recorded and the O.P. dismissed but in the circumstances without costs.