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Judgment
Through the instant Letters Patent Appeal, the appellants-writ petitioners assail the impugned judgment dated 23rd of April, 2012 passed by
learned single Judge whereby the writ petition bearing SWP No. 878/2011 stands dismissed. Mr. Haqani has put in appearance on behalf of
respondents 2 to 4. As directed he has placed on record the Rules indicating the Quota for Direct Recruitment to the posts of Depot Manager.
The appellants being aggrieved of the Advertisement Notice No. 873 of 2011 dated 9th of March, 2011 issued by the J and K State Road
Transport Corporations (for short 'Corporation') inviting applications for the posts of Depot Manager against the available vacancies in the Direct
Recruitment Quota in the Corporation, preferred writ petition (SWP No. 878/2011) inter alia on the ground that the 'Corporation' which, in fact,
was facing financial crunch should have utilized their services against the aforesaid posts as they were more, experienced being in-service and
acquired requisite training on different occasions, which plea was resisted by the 'Corporation' on the ground that the posts advertised were meant
for direct quota only, therefore, could not be filled up by promotion and that the appellants were adjusted as Junior Inspector in the year 2002
followed by their promotions made in terms of recommendation of the Departmental Promotion Committee as Inspector/Block Managers which
promotion was accepted by the appellants without any resistance and therefore, they were estopped from taking plea of their adjustment as Depot
Managers against the posts now advertised.
It was further the case of the 'Corporation' that some of its employee had also responded to the aforesaid Advertisement Notice and that the
appellants, if at all, were interested to seek their adjustment, they were not debarred to apply and participate in the selection process.
The learned single Judge did not find favour with the plea taken by the appellants and held that the adjustment of the appellants against the posts
advertised would be dehors of Rules as they were already promoted in the year 2010 which was accepted by them without any whisper. With
regard to the financial crunch being faced by the Corporation, it was observed by the learned single Judge that this being the affairs of the
Corporation can be best left open for its Management to run.
Heard Mr. Jan, learned Sr. Advocate assisted by Mr. Salman Matoo Advocate and Mr. Haqani Advocate for the Corporation.
Mr. Jan submits that the learned single Judge, while rendering the impugned judgment, has erred in law in not appreciating in its true and correct
perspective, the case set up by the appellants in the Writ Petition, inasmuch as it is squarely covered by the judgment of Hon'ble Apex Court in
case Uttar Pradesh State Road Transport Corporation and another Vs. Uttar Pradesh Parivahan Nigam Shishukhs Berozgar Sangh and others, .
According to learned Sr. Advocate, the appellants had the right of being adjusted as Depot Managers both by reason and virtue of mandate of
legal principles embodied in Doctrine of Promissory/Equitable Estoppel and the Doctrine of Legitimate Expectations as held in Uttar Pradesh State
Road Transport Corporation and another Vs. Uttar Pradesh Parivahan Nigam Shishukhs Berozgar Sangh and others, . He has drawn the attention
of the Court to paras 10 to 12 of the said judgment.
Mr. Jan further submits that even otherwise out of total cadre strength of the posts borne in the category of SOs/Depot Managers/Store
Officer/Security Officers, the total number of vacancies against which Direct Recruitment could be made against the posts of Depot Manager is
less than 10 in number, whereas vide impugned Advertisement Notice to which challenge was thrown by the appellants, as many as 16 posts of
Depot Manager available for Direct Recruitment were advertised. This vital aspect, according to Mr. Jan, also goes to the root of the controversy
which is not at all adjudicated upon by the learned single Judge while rendering the impugned judgment. Therefore, the impugned judgment is not
sustainable factually as well as legally.
Per contra, Mr. Haqani, appearing for the respondents-Corporation submits that the learned Sr. Advocate for the appellants has come up with
a new plea in the memo of Appeal and in his submissions advanced at the Bar vis-a-vis the vacancy position of the Direct Recruitment for the
posts of Depot Managers, whereas this was never the case set up by the appellants before the learned Writ Court. He further submits that the main
plea taken by the appellants was that their performance, work and conduct right from the very inception of their appointments as Apprentice
Managers/Engineers had been up to the mark and that they had throughout proved themselves to be an effective officer to the
assignments/responsibilities entrusted to them from time to time and that the Corporation had made promise of adjusting them against the regular
posts on proper evaluation of their performance; that the corporation in fulfillment of the promise did not adjust them against the regular posts
commensurating with their professional experience, which plea was refuted by the 'Corporation'.
According to Mr. Haqani, if any such promise is assumed to have been ever made, the same was discharged by the Corporation with the
adjustment of the appellants as Junior Inspectors way back in the year 2002 followed by their further promotion on the recommendations of
Departmental Promotion Committee in the year 2010 which adjustment/promotion was accepted by the appellants without raising any objection.
Therefore, in the present set of facts, the appellants have no case to raise any claim for their adjustment as Depot Managers against the
Advertisement notice (supra).
After hearing learned counsel for both the sides and going through the record, we are of the view that the appeal on hand deserves to be
dismissed.
At the very outset, we hold that the plea taken by Mr. Jan with regard to the flaw pointed out by him vis-a-vis 16 posts advertised for Direct
Recruitment of Depot Manager against the posts available which is less than 10 in number will not be available to him as this was never the case
built by the appellants before the learned Writ Court and this plea is taken for the first time in the memo of appeal only and also made the basis of
arguments at the Bar. We, therefore, refrain from showing any indulgence on this aspect and would proceed only on the basis of the pleadings
before the learned Writ Court and the judgment of the learned single Judge which is being challenged.
In order to strike his view point home, Mr. Jan has developed his case primarily on the legal principles embodied in Doctrine of Legitimate
Expectations while relying upon Uttar Pradesh State Road Transport Corporation and another Vs. Uttar Pradesh Parivahan Nigam Shishukhs
Berozgar Sangh and others, . Since Mr. Jan laid stress on paras 10 to 12 of the aforesaid judgment, we deem it appropriate to extract those
paras:--
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 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.
11: The aforesaid being the position, it would not be just and proper to go merely by what has been stated in Section 22(1) of the Act, or for that
matter, in the model contract form. What is indeed required is to see that the nation gets the benefit of time, money and energy spent on the
trainees which would be so when they are employed in preference to non-trained direct recruits. This would also meet the legitimate expectations
of the trainees.
12: In the background of what has been noted above, we state that the following would be kept in mind while 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
v. 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(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.
In our considered view, the reliance placed upon Uttar Pradesh State Road Transport Corporation and another Vs. Uttar Pradesh Parivahan
Nigam Shishukhs Berozgar Sangh and others, would not advance the cause of the appellants, being distinguishable on facts.
The short controversy which needs to be determined in the case on hand is; whether the advertised posts being made for Direct Recruitment
quota could be filled up by way of promotion to in service candidates i.e. the appellants.
The Corporation in filling up the aforementioned posts by way of Direct Recruitment invited applications from the open market.
Admittedly, the appellants had not responded to the aforesaid Advertisement Notice and participated in the selection process as others had
applied. It is also the admitted position that some of the employees of the Corporation had responded to the Advertisement Notice. The appellants
simply pleaded before the writ Court that the Corporation virtually being in financial crunch, instead of appointing Depot Managers from outside,
could very conveniently utilize their services by taking the plea that they were promised by the Corporation of their adjustment which fact was
seriously resisted by the Corporation.
Another admitted position before us is that the adjustments were made in favour of the appellants initially in the year 2002 and thereafter
promotions in the year 2010 also in terms of the recommendations made by the Departmental Promotion Committee as Inspectors/Booking
Managers which promotion was accepted by the appellants without any whisper. Therefore, the plea that the appellants have not been extended
any promotion by the Corporation is not correct. Thus, the question of any promissory estoppel or legitimate expectation does not arise in the case
on hand.
We see it from another angle. Had the Corporation done any exercise in this regard so as to adjust the appellants being in-service candidates,
without they being eligible for the posts of Depot Manager, it would have been dehors of Rules. Therefore, they cannot rest their claim on the
Doctrine of legitimate expectations. It is not expected of the Court to pass direction to make an exercise flouting the Rules.
Viewed thus, the finding returned by the learned single Judge while dismissing the writ petition of the appellants does not suffer from any
infirmity on factual as well as legal aspect calling for our indulgence.
The other plea of the appellants that Corporation was facing financial crunch and therefore, it was in its interest to adjust the appellants as
Depot Managers, in our view, is also not available to them and rightly repelled by the learned Writ Court. Finding no merit in the instant Letters
Patent Appeal, the same is dismissed at admission stage itself along with CMP No. 128/2012.