1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6754 OF 2008
[Arising out of SLP (C) No.6463/2008]
Board of Trustees for Port of Calcutta & Ors. ... Appellants
Versus
Avijit Kumar Ray & Ors. etc. ... Respondents
JUDGMENT
AFTAB ALAM,J.
1. Heard counsel for the parties
2. Leave granted
2
3. In times of fast shrinking employment opportunities, trade
apprentices who have completed their training staked their claim on an old
practice, long discontinued, under which the Calcutta Port Trust in the
port’s Mechanical Engineering department used to make recruitment of
trained apprentices and wards of employees dying in harness in the ratio of
1:1.
4. Three hundred and twenty one trained apprentices (respondents
before this Court; hereinafter referred to as `the trained apprentices’) joined
together and approached the Calcutta High Court in WP No. 21877(W)/99.
They made the grievance that in disregard of the practice earlier followed,
the Calcutta Port Trust was giving appointments only on compassionate
grounds to the wards of their employees dying in harness and had
completely stopped the recruitment of trained apprentices. They sought
appropriate directions from the High Court asking the Calcutta Port Trust to
appoint trained apprentices equal in number to those appointed on
compassionate basis during the past many years so as to restore the 1:1 ratio
between the two groups. At that stage the High Court did not pass any
positive order in the matter but disposed of the writ petition directing the
Chairman, Calcutta Port Trust to examine the claim of the trained
3
apprentices and to dispose of their representation after giving them an
opportunity of hearing.
5. In compliance with the order of the Court the Chairman, Calcutta Port
Trust heard representatives of the trained apprentices and examined their
claim. He turned down the claim by a reasoned order dated July 5, 2000.
From the order it appears that the trained apprentices raised three
grievances/demands before him. One, the Calcutta Port Trust should not fill
up the vacancies of Firemen in the Marine department by transfer of
unskilled labourers from the Mechanical Engineering department. Two, the
Port Trust should maintain a list of trade apprentices who completed the
apprenticeship course in the Port for consideration for employment against
future vacancies and three, the vacancies of unskilled labourers in the
Mechanical Engineering department should be filled up by the dependents
of employees dying in harness and trained apprentices in 1:1 ratio. In regard
to the third demand the trained apprentices further claimed that during the
last 20 years the ratio was not properly maintained and in order to restore it
trained apprentices should be appointed in equal numbers to those
appointed on compassionate basis. The Chairman noted that the posts of
Fireman in the Marine department were never filled up by transfer of
unskilled labourers from the Mechanical Engineering department; hence,
4
the first grievance/ demand of the trained apprentices was quite unfounded.
As regards maintenance of list of trade apprentices for appointment as
Firemen the Chairman noted that the Trust was passing through great
financial stringency and was burdened with surplus workforce. As a result,
the Trust was not in a position to take in any more unskilled labourers or to
make appointments on other posts. He further noted that there was already a
list of about 1200 persons, dependents of the employees who died in
harness. Similarly, a list of trained apprentices was already maintained by
the Trust in light of the Central Government instructions and the decisions
of this Court for giving preference to them in the matter of direct
recruitment to the post(s), matching their skills and qualifications. As per
the instructions, being followed by the Trust, a trained apprentice is not
required to get his name sponsored by any employment exchange and he is
also given relaxation of age bar to the extent of the period of training. Thus
there was no occasion to maintain any other list of trained apprentices for
filling up only the vacancies in the Marine department. In conclusion the
Chairman passed the following order:
“Notwithstanding anything contained hereinabove it is
reiterated that if any occasion arises to fill up the posts of
USL under Mechanical Engineering department by
Direct recruitment the passed out Trade apprentices may
also be considered.”
56. The trained apprentices once again went to the High Court in WP No.
9259 (W) of 2001 re-agitating their claims and challenging the order of the
Chairman, Calcutta Port Trust.
7. This time a learned Single Judge of the Court allowed the writ
petition by judgment and order dated June 11, 2004, giving the following
directions to the Calcutta Port Trust:
“For the above reasons the writ petition should succeed.
Accordingly, I allow the writ petition. The order
impugned is hereby set aside. The respondents are
hereby directed to consider the cases of the petitioners in
accordance with the decisions that the respondent Port
Trust had taken for giving employment to its trade
apprentice in the ratio 1:1 to be maintained with the
candidates from the died in harness category. Since the
respondent Port Trust has already given employment to
the died in harness category candidates in excess of the
quota available to such category, the respondents are
hereby directed to take immediate steps for rectifying the
situation and restoring the balance in the quota meant for
the two categories. For implementing this order the
respondent shall immediately frame a scheme on the
basis of such scheme they shall consider the case of the
petitioners. The scheme shall be prepared and the names
of the petitioners shall be placed in an appropriate panel
within a period of four weeks from the date of receipt of
a copy of this judgment and order by them. After
preparing the scheme and the panel, the respondents
shall consider the cases of the petitioners according to
the scheme and panel against the available vacancies, in
terms of the government order issued in the year 1983
and their own decisions as quoted hereinbefore.”6
8. Against the judgment of the single Judge the appellant, Calcutta Port
Trust preferred an appeal (MAT 2601 of 2004) before the Division Bench of
the High Court. The appeal was dismissed by judgment and order dated
May 10, 2007 and confirming the order of the single judge the Division
Bench made the following observations and directions:
“In the aforesaid circumstances, we are of the considered
view that the learned Single Judge has rightly issued
appropriate directions for considering the cases of the
writ petitioners and giving employment as ex-trade
Apprentices along with the died-in-harness category
candidates in the ratio of 1:1 in the matter of giving
employment in the Kolkata Port trust pursuant to the
promise given on behalf of the said appellants and as
mentioned in the written communication of Labour
Advisor dated 4th January, 1985 and further considering
the guidelines issued by the Government of India and
mentioned in the circular dated 21st April, 1983.”9. The appellant has brought the matter in appeal to this Court.
10. Mr. G. Vahanvati, learned Solicitor General appearing on behalf of
the appellants submitted that the orders passed by the High Court were quite
bad and illegal. The High Court clearly exceeded its jurisdiction in directing
the appellant to give employment to three hundred and twenty one writ
petitioners without any consideration of the appellant’s requirements, its
financial position and other similar issues. Moreover, the High Court
arrived at its conclusions on a complete misreading and misinterpretation of
7the relevant government guidelines and circulars and communications
issued by the Port Trust. The Solicitor General emphasised that there was
never ever any promise made by the appellant to absorb the trained
apprentices in employment and the High Court completely misread the
communication of the Labour Advisor of the Trust dated January 4, 1985
and the guidelines contained in the circular dated April 21, 1983 issued by
the Government of India.
11. The Solicitor General stated that in the 1970s the Calcutta Port Trust
indeed followed the practice of making recruitment of unskilled labour in
the Mechanical Engineering department of the Port from amongst the
dependents of employees dying in harness and trained apprentices in the
ratio of 1:1. He, however, made it clear that the practice was based neither
on any statutory provision nor on agreement(s) of any binding nature; it was
followed by the Trust unilaterally having regard to the circumstances
obtaining at that time. He further clarified that this practice was confined
only to the Mechanical Engineering department while the other departments
had their own recruitment policy, depending upon their respective
requirements. He then took us, one by one to the circulars, decisions,
communications etc. relied upon by the High Court for making the
impugned directions.
8
12. First in the series is a circular bearing no. D.O. DECT-1-83/AP dated
April 21, 1983 issued by the Ministry of Labour and Rehabilitation
(Department of Labour), Government of India. By this circular all the
ministries were urged to endeavour to ensure that 50% of the total semi-
skilled and skilled categories of jobs in the establishment under them should
be filled by direct recruitment. Further, that 50% of the vacancies available
for direct recruitment should be filled by trained apprentices and first
preference be given to apprentices completing the training course under that
establishment. Para.2.2 of the circular read as follows:
“50% of the direct recruitment vacancies may be filled
by trained apprentices first preference being given to the
apprentices trained by the said establishment and
thereafter to those trained by other establishment.”13. Next is a letter of January 4, 1985 from the Labour Adviser &
Industrial Relations Officer of the Port Trust to the Joint General Secretary
of the Calcutta Port Shramik Union. The letter is on the subject of
recruitment of the ex-trade apprentices and refers to some discussion held in
that regard. As this letter is the mainstay of the High Court judgments it is
reproduced below in full.
“Subject: Recruitment of Ex-Trade Apprentices
Dear Sir,
9Kindly recall the discussion held in Chairman’s
room on 3.1.1985 on the above subject.Ex-Trade Apprentices were being recruited along
with the died in harness candidates in the ratio of 1:1.
This is now been stopped in view of the ban imposed by
Government on direct recruitment. Ex-Trade Apprentices
will be recruited again as and when the ban is lifted and
their quota will be restored.”It is this letter that is mainly relied on by the High Court to hold that the
Port Trust was bound by its promise to recruit the trained apprentices in the
same ratio as dependents of employees dying in harness. The Solicitor
General submitted that it is quite unreasonable to read this letter as an
unqualified promise of recruitment of trained apprentices in all future times.
The letter simply said the ex-trade apprentices would be recruited and their
quota would be restored again as and when the ban on direct recruitment
was lifted. He pointed out that in the order of the Chairman, Calcutta Port
Trust that came under challenge before the High Court it was likewise stated
that the Trust was not in a position to provide employment opportunity to
the trained apprentices on account of the twin problems of actuate financial
distress and surplus workforce but as and when the need arises to induct
unskilled labour in the Mechanical Engineering department the trained
apprentices would also be considered for recruitment. There is thus no
10change in the stand of the Trust and there is no question of enforcement of
any unconditional promise made by the Trust.
14. The Solicitor General referred to the decision in U.P. State Road
Transport Corporation & Anr. Vs. U.P. Parivahan Nigam Shishukhs
Berozgar Sangh & Ors. (1995) 2 SCC 1 and submitted that on similar facts
this Court held that the High Court was wrong in giving direction to give
employment to the trainees. In regard to enforcement of promise the Court,
in paragraph 10 of the decision, observed and held as follows:
“For a promise to be enforceable, the same has,
however, to be clear and unequivocal. We do not read
any such promise in the aforesaid three documents and
we, therefore, hold that at the call of promissory
estoppel, the direction in question could not have been
given by the High Court. But then, we are left in no
doubt that the Government of India did desire that
preference should be given to the trained apprentices and
it is because of this that the State Government stated in
its letter No.735/38-6-16(T)-79 dated 12-11-1979 that
where such apprentices are available, direct recruitment
should not be made. Indeed, the Government of India in
its letter dated 23-3-1983 even desired reservation of 50
per cent vacancies for apprentice trainees.”(emphasis added)
15. Proceeding then to examine the rights of the ex-trade apprentices
under the Apprentices Act, 1961 the Court, in paragraph 12 of the decision,
laid down as follows:
“In the background of what has been noted above, we
state that the following would be kept in mind while
11dealing with the claim of trainees to get employment
after successful completion of their training:
(1) Other things being equal, a trained apprentice should be
given preference over direct recruits.
(2) For this, a trainee would not be required to get his name
sponsored by any employment exchange. The decision of
this Court in Union of India vs. N. Hargopal would permit
this.
(3) If age bar would come in the way of the trainee, the same
would be relaxed in accordance with what is stated in this
regard, if any, in the service rule concerned. If the service
rule be silent on this aspect, relaxation to the extent of the
period for which the apprentice had undergone training
would be given.
(4) The training institute concerned would maintain a list of the
persons trained year-wise. The persons trained earlier
would be treated as senior to the persons trained later. In
between the trained apprentices, preference shall be given
to those who are senior.”
16. The Solicitor General submitted that in light of the decision in U.P.
State Road Transport Corporation, other things being equal, the ex-trade
apprentices were entitled to preference in the ways indicated in that
decision. The decision made it clear that the establishment where the
apprentices had completed their training was under no obligation to absorb
them in employment regardless of availability of any vacancies or other
considerations. The trust was scrupulously following the directions of the
Supreme Court in U.P. State Road Transport Corporation in the matter of
recruitment of trained apprentices.
12
17. The Solicitor General stated that after this Court’s decision in U.P.
State Road Transport Corporation the Government of India also slightly
modified its policy on the matter. He referred to the letter DO NO. CGET 23
(3) dated 15 October 1996 issued under the hand of the Secretary, Ministry
of Labour, Government of India. In paragraph 5 of the letter it is stated as
follows:
“5. I am taking this opportunity to share with you our
concern about the seriousness of the problem and find
practical solutions so that the trained apprentices can get
regular employment either within the establishments
where they have been trained or in other
Government/Private sector establishment. I shall be
grateful if suitable steps are initiated by your Ministry to:
(a) fill up the seats located by engaging apprentices under the
Apprenticeship Act for utilization of existing training
facilities to the fullest extent;
(b) improve the quality of training by closer monitoring of the
scheme at the scheme at the shop floor level; and
(c) ensure that preference is given to passed out apprentices
for recruitment in regular jobs matching their skills and
qualifications.
(emphasis added)
The Solicitor General submitted that the policy of the Government of India
is to give preference to the passed out apprentices for recruitment in regular
jobs matching their skills and qualification.
18. The Solicitor General reiterated that in the communication of the
Legal Advisor of the Trust dated January 4, 1985 there was no promise to
13
recruit the trained apprentices. He further submitted that in any event after
the legal position was made absolutely clear by the decision in U.P. State
Road Transport Corporation and following the decision the Government of
India had also modified its policy regarding recruitment of trained
apprentices it was completely unreasonable to make that letter the basis for
the direction to appoint three hundred and twenty one trained apprentices.
He further stated that even though the decision in U.P. State Road
Transport Corporation was brought to the notice of the High Court it
unfortunately persisted in reading the letter dated January 4, 1985 as making
the promise for appointment of trained apprentices.
19. As regards the appointment of trained apprentices in equal number to
appointments on compassionate basis the Solicitor General submitted that
was a practice followed by the Trust at one point of time long ago when
there was adequate employment potential in the port. After more than 25
years and under vastly changed conditions, both in law and in the
circumstances concerning the Calcutta Port, it was no longer possible to
follow the practice and to link up the appointments from two entirely
different categories. The Solicitor General stated that in the past thirty years
though ex-trade apprentices were appointed in substantial numbers,
depending on the exigencies in certain years, the ratio of 1:1 between the
14
two groups was never maintained. In recent years of course, employment
opportunity for every group had practically dried up. In this regard he
brought to our notice the following table giving the break-up of
appointments made as unskilled labourer in the Mechanical Engineering
department from different sources from 1979 till 2000, when this case
started.
Year of By died- By Ex- By By ST By Total
in-harness Trade Casual candidate sports
Recruitmen candidate Apprentice worker s perso
s s s n
t
1979 54 98 140 5 X 297
1980 84 82 1 X X 167
1981 31 X X X X 31
1982 71 54 14 X 2 141
1983 6 23 1 X X 30
1984 45 9 X X X 54
l-TOTAL 291 266 156 5 2 720
1985 110 62 1 X X 173
1986 37 39 X X X 76
1987 1 X X X X 1
1988 14 4 X X X 18
1989 11 5 X 20 X 36
1990 X 2 X X 1 3
ll-TOTAL 173 112 1 20 1 307
1991 X 3 X X 3 6
1992 X X X X X X
1993 X X X X X X
1994 X X X X X X
lll-TOTAL X 3 X X 3 6
1995 25 X X X X 25
1996 4 X X X X 4
15
1997 9 X X X X 9
1998 2 1 21 X X 24
1999 1 X 8 X X 9
2000 1 X X X X 1
IV- 42 1 29 X X 72
TOTAL
TOTAL 506 382 186 25 6 1105
OF I,II,III
&IV
20. The Table clearly shows the number of appointments from different
groups tapering off. In the ten years from 1991 to 2000, 42 persons were
employed on compassionate basis and only 4 persons from amongst the ex-
trade apprentices. The Solicitor General stated that appointments on
compassionate basis were made only in dire cases that had the potential of
causing labour unrest creating major problems. He submitted that in present
conditions it is not possible to link-up the recruitments from the two
categories and the High Court was in error in giving the impugned direction.
21. We find much substance in the submissions made by the Solicitor
General. Like the case of U.P. State Road Transport Corporation we find it
difficult to read in the communication of January 4, 1985 any clear,
unequivocal and unqualified promise that may be enforceable after a quarter
of century under vastly different conditions. We are also in agreement that
16
the recruitments from the two categories cannot be linked-up and made
contingent on each other.
22. Mr. Krishnamani, learned counsel appearing for the respondents, the
trained apprentices supported the judgments of the High Court. He
submitted that the High Court rightly held that the letter of the Legal
Advisor dated January 4, 1985 made the promise of recruitment of the
trained apprentices and restoration of the ratio between the two groups as
and when the ban on direct recruitment imposed by the Central Government
was lifted. Mr. Krishnamani further submitted that the ban on recruitment of
ex-trade apprentices was lifted by letter dated July 30, 1986 addressed by
the Secretary of the Trust to the Joint General Secretary, Calcutta Port
Shramik Union and with the lifting of the ban the promise made in the
earlier letter of January 4, 1985 became enforceable and binding. The letter
of July 30, 1986 referred to by Mr. Krishnamani is as follows:
“Dear Sir,
“Subject: Absorption of the Trade Apprentices under
the S.R.C. (ex.C.H.E.’s Deptt.)Reference your letter No.C/8/645 dated the 16th June, 1986.
2. The case has been considered by the Chairman. It has
been decided to resume recruitment or ex-Trade Apprentices,
as per their quota against the available vacancies of U.S.L.
subject to work requirement and on observance of SC/ST
17reservation orders. The General Manager (Ship Repair
Complex) is being suitably advised in the matter.”
This letter is of July 30, 1986 and a reference to the table giving year-wise
appointments would show that in the year 1986, 39 ex-trade apprentices
were appointed against 37 persons appointed under the scheme of
compassionate appointments. Thus the Trust did exactly what was stated in
this letter.
23. We are unable to accept that this letter on its own or read along with
the earlier communication dated January 4, 1985 constitutes an unqualified,
enforceable promise or lays down a mode of recruitment on a permanent
basis or creates any rights in favour of the trained apprentices.
24. Moreover, the letter does not answer the main question in the case,
i.e., how could the High Court give direction for appointment of over three
hundred trained apprentices regardless of the vacancy position and the other
relevant considerations. Confronted with the question Mr. Krishnamani
submitted that the order of the High Court should not be understood to mean
that all the respondents must be appointed forthwith. The High Court asked
the Trust to evolve a scheme for their absorption in a phased manner. When
pointed out that if the directions of the High Court are to be understood in
the way suggested by him then their will not be much difference between
18
the High Court order and the order passed by the Chairman, Calcutta Port
Trust, Mr. Krishnamani submitted the vital difference between the two was
that the order of the Chairman, Port Trust sought to do away with the parity
between the two groups in the matter of recruitment. He further submitted
that the respondents’ main claim was to adhere to and restore the parity
between the ex-trade apprentices and those covered by the scheme of
compassionate appointments in the matter of recruitment. We are entirely
unable to accept the claim of the respondents. As stated by the Solicitor
General the ex-trade apprentices were at one time appointed in equal
numbers to those appointed under the compassionate appointments scheme
but the practice was not on the basis of any statutory provision or any
agreement between the Trust and the workmen. We are equally unable to
see any rational basis for such parity between the two groups. It might have
served the interests of a certain group in the past and it may appear to the
present respondents as a handy bargaining point but in the long term it will
be fair neither to ex-trade apprentices nor to those coming under the scheme
of compassionate appointments. There is no comprehensible connection
between the two groups nor is there any rational basis for parity between the
two in the matter of recruitment.
25. On a consideration of the materials on record and the rival
submissions we are of the view that the orders passed by High Court are
19
plainly unsustainable. We accordingly set aside the orders of the High Court
and dismiss the writ petitions.
26. Before parting with the records of the case we may, however, observe
that though the number of appointments has gone down very low, no
uniform policy of recruitment is discernible. For example three trained
apprentices were recruited in 1993 and one in 1998. It is not clear under
what policy those recruitments were made or for that matter what policy the
Trust is following in the matter of compassionate appointments. The Trust
should frame clear policies of recruitment from these categories and give
them due publicity to avoid any scope of abuse and unfair labour practice.
27. In the result, the appeal is allowed subject to the aforesaid
observations and directions. There shall be no order as to costs.
……………………………J.
[Tarun Chatterjee]
……………………………J.
[Aftab Alam]
New Delhi,
November 25, 2008.