This Judgment has been overruled by : Board of Trustees for Port of Calcutta and Others Vs. Avijit Kumar Ray and Others etc.,
(2009) 121 FLR 399 : (2008) 13 JT 337 : (2009) 2 LLJ 535 : (2008) 15 SCALE 450 : (2009) 1 SCC 743 : (2009) 1 SCC(L&S) 278 :
(2009) 3 SLJ 132
Pranab Kumar Chattopadhyay, J.@mdashThis appeal has been preferred at the instance of the authorities of the Kolkata Port Trust assailing the
judgment and order dated 11th June, 2004 passed by the learned Single Judge while deciding the writ petition bearing W.P. No. 9259(W) of
2001. By the aforesaid judgment and order under appeal, the learned Single Judge directed the respondents to consider the cases of the writ
petitioners in accordance with the decisions, which the said Kolkata Port Trust authorities had taken for giving employment to its trade apprentices
in the ratio of 1:1 along with the died-in-harness category candidates. Several other directions were issued by the said learned Single Judge while
allowing the aforesaid writ petition. The operative part of the said judgment of the learned Single Judge is set out hereunder:
...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 apprentices 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 quotas 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 respondent 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
2. In the present appeal, following questions have been raised on behalf of the appellants:
(a) What is the legal right of Trade Apprentices to seek employment with KPT?
b) Whether appointment of Trade Apprentices in the past in relaxation of the Recruitment Rules in the ratio of 1:1 with died-in-harness category
gives the Trade Apprentices a right to apply for a writ of mandamus directing KPT to continue with such appointment contrary to the Eecruitment
Rules?
c) Whether there was any promise made by the KPT to the Trade Apprentices as to their absorption in the organization and if so whether such
promise is enforceable in the eye of law and further whether the writ petitioner can claim any legitimate expectation on the strength of such
promise?
d) Whether the guidelines issued by the Central Government dated 21.4.83 and the circular dated 15.10.96 conferred any enforceable legal right
on the Trade Apprentices?
3. Mr. Joydeep Kar, learned Counsel of the appellants submits that the apprentices are creature of statute namely, the Apprentice Act, 1961 and
the said Act since does not confer any legal right on the apprentices to seek employment in the organization where the said apprentices were
trained. Mr. Kar further submits that the writ petitioners herein are not entitled to claim any relief against the appellants herein. Mr. Kar referring to
a decision of the Supreme Court in the case of Kripa Shankar Chatterji Vs. Gurudas Chatterjee and others, submits that the Trade Apprentices
have no right to seek employment in the organization where they were trained. Mr. Kar submits that the trained Apprentices can only claim
preference in the event vacancies are filled up by direct recruits and the said trained Apprentices are also not required to be sponsored by the
Employment Exchange for coming to the zone of consideration while filling up the vacancies in the establishment in question and the age bar should
also be lifted or discontinued.
4. Mr. Kar referred to and relied on the subsequent decision of the Supreme Court in the case of State of Himachal Pradesh Vs. Surinder Mohan
And Others, in support of his aforesaid contentions wherein the earlier decision of the Supreme Court in the case of U.P. State Road Transport
Corporation and Anr. v. U.P. Parivahan Nigam Shiskhuks Berozgar Sangh and Ors. has been considered and followed. Mr. Kar further submits
that there was neither any agreement between the writ petitioners and the Kolkata Port Trust authorities nor any promise was even given on behalf
of the appellants herein to the writ petitioners to the effect that the trained apprentices would be employed in the organisation after successful
completion of the training period.
5. Mr. Kar submits that the writ petitioners are only entitled to apply as and when the Kolkata Port Trust authorities will issue necessary
advertisement for filling up the vacancies by direct recruits. Mr. Kar also submits that the Chairman, Kolkata Port Trust authorities passed the
order in strict compliance with the principles laid down by the Supreme Court in the aforesaid decisions. According to Mr. Kar, the learned Single
Judge without considering the aforesaid decisions of the Supreme Court in its proper perspectives quashed the order passed by the Chairman,
Kolkata Port Trust authorities by the judgment and order under appeal and issued certain directions for considering the claims of the writ
petitioners for employment in the Kolkata Port Trust. Mr. Kar further submits that the writ petitioners herein being the trained apprentices have no
legal right to be absorbed in the employment of the Kolkata Port Trust after successful completion of the training period. It has also been submitted
on behalf of the appellants that the Kolkata Port Trust authorities cannot be directed by issuing a writ of mandamus by this Hon''ble Court to
recruit persons contrary to the Recruitment Rules.
6. The learned Counsel of the appellants submits that Recruitment Rules do not permit recruitment of Apprentices as a class. Mr. Kar, learned
Counsel of the appellants submits that the direction issued by the learned Single Judge to appoint Trade Apprentices in the establishment of the
Kolkata Port Trust along with the died-in-harness category candidates in the ratio of 1:1 is not only erroneous but illegal since the same is contrary
to the Recruitment Rules. Referring to the written communication of the Labour Advisor of the Kolkata Port Trust dated 4""1 January, 1985, Mr.
Kar submits that the promise given by the said Labour Advisor regarding recruitment of the ex-trade Apprentices after lifting of the ban and
restoration of their quota, was contrary to the Recruitment Rules as the Corporation does not provide any quota for Trade Apprentices. The
learned Counsel of the appellants further submits that at present the appellants herein do not require any fresh employees and the learned Single
Judge erred in travelling beyond the scope of the judicial review by issuing direction to the appellants herein to absorb the Trade Apprentices like
the writ petitioners herein.
7. The learned Counsel of the writ petitioners, however submits that the learned Single Judge issued the appropriate directions in the matter upon
taking note of the guidelines mentioned in the circular issued by the Ministry of Labour & Rehabilitation, Government of India dated 21Bt April,
1983 and the subsequent decision of the appellant-Kolkata Port Trvist authorities regarding recruitment of ex-trade Apprentices as mentioned in
the written communication dated 4th June, 1985 made by the Labour Advisor of the said Kolkata Port Trust. The aforesaid circular dated 21st
April, 1983 is set out hereunder:
Secretary
Ministry of Labour & Rehab.
Shram Shakti Bhavan
(Department of Labour)
D.O. No. DCET-1/1/83-AP
New Delhi, dated the 21st April, 1983.
The question of utilizing the seats identified in different establishment for training apprentices under the Apprentices Act, 1961 and also absorbing
the trained apprentices in employment was considered by the Committee of Secretaries at their meeting held on 22.3.1983.
2. The Committee decided that the following guidelines may be issued in this regard:
1) Ministries will endeavour to ensure that 50% of the total semi-skilled and skilled categories of jobs would be filled in by direct recruitment in the
establishments under them and this requirement should be ensured while finalizing agreement with Labour Unions in future. The present agreement,
may, however, be allowed to run their course without modification.
(2) 50% of the direct recruitment vacancies may be filled by trained apprentices, first preference being given to the apprentices trained by the same
establishment and thereafter to those trained by other establishments.
3) Two months before the training of apprentices is scheduled to be over, Public Sector Undertakings will intimate to a designated officer in the
Ministry of Labour the number of apprentices trained and the number likely to be retained or absorbed within the undertakings establishments.
4) The Ministry of Labour shall endeavour to find alternative placements for the remaining apprentices. In so far as the Ministry of Railways are
concerned, the number of vacancies be allocated for training of apprentices will be consistent with the number likely to be absorbed in railway
employment and the number as can be useful employed outside with the background of training received in the Railways.
3. The Committee also desired that the practice of public sector undertakings entering into agreements with the labour union committing themselves
to employ only the kith and kin of the employees should be discouraged.
4.1 have to request that the above guidelines may be brought to notice of all the establishments/public sector undertakings under the control of your
Ministry, under intimation to this Ministry, for compliance.
5. In accordance with the recommendation, No. 3, the undertakings also be advised to send, in the proforma enclosed, the information regarding
the number of apprentice trained/absorbed, by name to the Director of Apprenticeship Training, Ministry of Labour, Directorate General of
Employment and Training, Shram Shakti Bhavan, New Delhi.
With regards,
Yours sincerely,
Sd/-
B.G. Deshmukh
8. The written communication of the Labour Advisor, Kolkata Port Trust dated 4th June, 1985 recording the promise regarding recruitment of the
ex-trade Apprentices along with the died-in-harness category candidates in the establishment of the Kolkata Port Trust in the ratio of 1:1 is set out
hereunder:
Calcutta Port Trust
Labour Advisor and Industrial
Relations Officer''s Office
15, Strand Road,
Calcutta700001
Dated: 4th Jan, 1985
75
The Joint General Secretary,
Calcutta Port Shramik Union,
26, Dr. Sudhir Basu Road,
Calcutta-700 023.
Dear Sir,
Subject: Recruitment of ex-Trade Apprentices.
Kindly recall the discussion held in Chairman''s room on 3.1.85 on the above subject.
Ex-Trade Apprentices were being recruited along with the ''died-in-harness'' candidates in the ratio of 1:1. This has 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.
Yours faithfully,
Sd\-
Labour Advisor & Industrial
Relations Officer.
9. Going through the judgment and order under appeal, we find that the learned Single Judge did not hold that the writ petitioners herein are
entitled to be absorbed in the establishment of the Kolkata Port Trust in view of their successful completion of their Apprentice training in the said
organisation. The writ petitioners herein did not claim absorption in the establishment of the Kolkata Port Trust under the provisions of the
Apprentice Act, 1961 after successful completion of the Apprentice training in the said organisation. The writ petitioners specifically urged before
this Court that the appellants herein cannot ignore the specific circular issued by the Ministry of Labour & Rehabilitation, Government of India
being a Public Sector Undertaking. It has also been urged on behalf of the writ petitioners that the said appellants cannot also refuse to implement
its promises as specifically mentioned in the written communication of the Labour Advisor dated 4th January, 1985.
10.The decision of the Supreme Court in the case of Uttar Pradesh State Road Transport Corporation and another Vs. Uttar Pradesh Parivahan
Nigam Shishukhs Berozgar Sangh and others, , in our opinion, is clearly distinguishable as in the present case, specific promise has been made on
behalf of the Kolkata Port Trust authorities by the Labour Advisor in the written communication dated 4th January, 1985 apart from the specific
guidelines issued by the Government of India by the circular dated 2 18th April, 1993 which are also binding upon the Kolkata Port Trust in terms
of Section 111 of the Major Port Trusts Act, 1963. In paragraph 10 of the aforesaid decision, Supreme Court did not find existence of any
promise and observed as hereunder:
10. 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 dt. 12.11.79 that where such apprentices are available direct
recruitment should not to be made. Indeed the Government of India in its letter dated 23.3.1983 even desired reservation of 50 percent vacancies
for apprentice trainees.
11. In view of the aforesaid position, we are of the opinion that the Kolkata Port Trust Authorities cannot avoid and/or ignore its promise in the
matter of recruitment of ex-trade Apprentices like the writ petitioners herein.
12. The learned Senior Counsel of the respondent/writ petitioners also referred to Paragraph 7 of the affidavit-in-opposition filed on behalf of the
appellants before the learned Single Judge wherein specific submission was made on behalf of the Kolkata Port Trust authorities as hereunder:
However, without admitting the contents of Annexure- R, it is submitted that the same also speaks for giving preference to the Trade Apprentices
in the matter of employment over direct recruits and there does not appear to be any conflict between the contents of the said document and the
procedure being followed in the Calcutta Port Trust.
13. The appellants-Kolkata Port Trust authorities, in our opinion, cannot ignore its promises regarding recruitment of ex-trade Apprentices as
specifically mentioned in the written communication dated 4th January, 1985 issued by the Labour Advisor of the said Kolkata Port Trust.
Furthermore, the guidelines specifically mentioned in the circular dated 21st April, 1983 issued by the Ministry of Labour & Rehabilitation,
Government of India are not only applicable in the present case but also binding on the appellants herein in view of Section 111 of the Major Port
Trusts Act, 1963.
13A. Section 111 of the Major Port Trusts Act, 1963 is set out hereunder:
Section 111 Power of Central Government to issue directions to Board.-(1) Without prejudice to the foregoing provisions of this Chapter, the
Authority and every Board shall, in the discharge of its functions under this Act, be bound by such directions on questions of policy as the Central
Government may give in writing from time to time:
Provided that the Authority or the Board as the case may be, shall be given opportunity to express its views before any direction is given under this
sub-section.
(2) The decision of the Central Government whether a question is one of policy or not shall be final.
14. In view of the aforesaid specific provision of Section 111 of the Major Port Trusts Act, the appellants herein are bound to follow the guidelines
as mentioned in the aforesaid circular dated 21Bt April, 1983 since the said circular is still valid, operative and subsisting. The competent authority
of the Kolkata Port Trust also never issued any communication withdrawing its earlier decision as mentioned in the written communication dated
4th January, 1985 issued by the abour Advisor of the said Kolkata Port Trust. Therefore, the promise mentioned in the aforesaid communication
dated 4th January, 1985 should be maintained or adhered to and implemented.
15. Having heard the learned Counsel of the respective parties and considering the specific circular issued by the Government of India dated 21st
April, 1983 and further considering the promise made on behalf of the appellants regarding recruitment of ex-trade Apprentices as mentioned in
the written communication of the Labour Advisor dated 4lh January, 1985, we are of the opinion that the authorities of the Kolkata Port Trust
cannot take a different stand now regarding the recruitment of the ex-trade Apprentices.
16. 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 the Labour Advisor dated 4th January, 1985 and further considering the guidelines issued by the
Government of India and mentioned in the circular dated 21"" April, 1983.
17. For the reasons discussed hereinbefore, we are not inclined to interfere with the aforesaid directions of the learned Single Judge as mentioned
in the judgment and order under appeal. Accordingly, we dismiss the present appeal being devoid of any merit and direct the appellants herein to
carry out the directions as mentioned in the judgment and order under appeal without any further delay.
There will be, however, no order as to costs. Let urgent xerox certified copy of this judgment and order, if applied for, be given to the learned
Advocates of the parties on usual undertaking.
Kalidas Mukherjee, J.
18 I agree.