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

J U D G M E N T

AFTAB ALAM,J.

1. Heard counsel for the parties  

2. Leave granted

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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

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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,

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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.”

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6. 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.”

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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

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the  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.

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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,

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Kindly  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

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change 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

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dealing  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.

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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

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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

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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

Recruitmen

t

By  died- in-harness candidate s

By  Ex- Trade Apprentice s

By Casual worker s

By  ST candidate s

By sports perso n

Total

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

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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-

TOTAL

42 1 29 X X 72

TOTAL OF I,II,III

&IV

506 382 186 25 6 1105

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

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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

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reservation  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

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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

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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.

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