Abdul Hamid and Ors. vs Union of India and Ors. The General Manager

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE/INHERENT JURISDICTION

CIVIL APPEAL NO(S). 5027-5029 OF 2012

ABDUL HAMID & ORS. ...APPELLANT(S)

Versus

UNION OF INDIA & ORS. ...RESPONDENT(S)

WITH

CONTEMPT PETITION (C) NO(S). 291-293 OF 2016 IN CIVIL APPEAL NO(S). 5027-5029 OF 2012

GIRDHAR GOPAL SHARMA ….CONTEMPT PETITIONER(S)

Versus

A.K. MITTAL & ORS. ….CONTEMNOR(S)/RESPONDENT(S)

JUDGMENT

Deepak Gupta, J.

Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2017.09.20 16:19:07 IST Reason:

1. Three original applications being O.A. No. 238 of

2004, O.A. No. 264 of 2004 and O.A. No. 365 of 2004 2

were filed before the Jodhpur Bench of the Central

Administrative Tribunal (for short ‘the Tribunal’). There

were in all 14 original applicants. The dispute raised in

these original applications was that in the Bikaner

Division of the Railways, the Divisional Manager, while

issuing advertisement for filling up the posts of ‘fresh face

substitutes’ in Group-D in Bikaner Division, had directed

that only those candidates who had done their

apprenticeship training with the Railways would be

eligible for appointment. The contention of the original

applicants was that this was violative of the directions

given by the Railways and while making similar

recruitments in all other parts of the country, though

preference was given to those who had done there

apprenticeship with the Railways, the selection was not

exclusively limited to such candidates and all persons

who were otherwise qualified, were entitled to apply for

being selected. These original applications were filed

before selection was made and after the selection process

had been initiated.

3

2. The stand of the Railways before the Tribunal was

that fresh face substitutes are engaged only as a time gap

arrangement purely as a temporary measure till regular

selection takes place and, therefore, the Railways was well

within its jurisdiction to limit the source of recruitment to

candidates who had undergone apprenticeship with the

Railways. The main issue raised was that since only

casual labourers were being engaged, keeping in view the

local needs, preference was given to local candidates.

3. Admittedly, the 14 original applicants were course

completed act apprentices, i.e. they fulfilled the eligibility

criteria. However, their applications were not considered

since they had not undergone apprenticeship training

under the Railways. The Tribunal found that the

Railways had issued instructions from time to time and

the term “fresh face substitutes” referred to “engagement

of persons in railway establishment against posts falling

vacant because of regular employee being absent or

otherwise and the post could not be kept vacant”. 4

However, instructions had been issued that these

engagements should be made by way of exception purely

on temporary basis limited to the posts which cannot be

kept vacant until regular posts are filled. The fact,

however, remains that thousands of persons were given

appointment as fresh face substitutes.

4. The Circular dated 21st June, 2004 provides that

fresh face substitutes can be engaged from course

completed act apprentices. These instructions do not

envisage that the course completed act apprentices

should have done their apprenticeship only under the

Railways establishments. No rule or instructions of the

Railways have been brought on record to show that the

Railways had taken a decision to limit the field of choice

to those course completed act apprentices who had done

their apprenticeship training with the Railway

establishments only. It was only in the Bikaner Division

that the General Manager issued a memo on 30th August,

2004 that only those candidates would be considered who 5

had completed the apprenticeship training with the

Railways. The Tribunal vide common order dated 24th

February, 2005 held that this memo violates Article 14

and 16 of the Constitution of India in so far as it

discriminates against those qualified persons who had not

done their apprenticeship training with the Railways and

denies them the right of equal opportunity of employment.

The Tribunal quashed the memo dated 30th August, 2004

and all subsequent actions thereto.

5. The Railways filed writ petitions being Civil Writ

Petition Nos.4272-4274 of 2005. These matters were

listed on 3rd August, 2005 before the High Court on

which date notice was issued and, in the meantime, the

order of the Tribunal, dated 24th February, 2005

was stayed.

6. It appears that as a result of the stay, the appellants

before us were selected. Some were selected in the year

2005 and some in the year 2006. On 22nd August, 2005 6

after hearing the parties, the High Court passed the

following order:

“Heard learned counsel for the parties. The order dated 3.08.2005 passed by this Court is modified to the extent that the selection made by the respondents pursuant to the order of the Tribunal Annexure 1 dated 24.02.2005, but the same shall be subjected to the final decision of the instant petition.

Let the writ petition itself be posted for hearing on 2nd September, 2005.”

7. It will be pertinent to mention that thereafter a

clarification was sought for and the High Court on

05.01.2006 passed the following order :-

“It is pointed out by the learned counsel for the petitioners that there is some confusion with respect to order dated 22.8.2005. We make it clear that if any selections are made pursuant to the policy decision, then the same shall be subject to final decision of the instant writ petition.

Let the writ petition be posted for hearing in the 2nd week of February, 2006.”

Perusal of the aforesaid order leaves no manner of doubt

that the appointment of the appellants herein was subject

to the final decision of the writ petitions.

8. It is thus apparent that the appointment of the

appellants was subject to the final result of the writ

petitions. The writ petitions were finally dismissed on 5th 7

December, 2007 but the persons appointed were allowed

to continue for four months. The Railway administration

filed a review petition but the same appears to have been

rejected. The Railways accepted the order and judgment

of the High Court and did not pursue the matter further.

Thereafter, the Railways vide order dated 25.08.2008

discontinued/terminated the services of the fresh face

substitutes/appellants. It is only then that the appellants

filed the special leave petitions, which they were permitted

to do. Leave was granted to file these appeals.

Applications for intervention have also been filed by more

than 300 other course completed qualified persons who

have undergone apprenticeship training under

the Railways.

9. The first ground raised on behalf of the appellants is

that since the fresh face substitutes/apprentices are

appointed temporarily against short term vacancies, the

Railways was well within its jurisdiction to limit the field

of choice to those candidates who had undergone 8

apprenticeship training with the Railways. In the

alternative, it is submitted by Mr. R. Venkatramni,

learned senior counsel appearing for the appellants that

the appellants who have been working for more than 10

years, they should now be permitted to continue and, in

this regard, he has relied upon a large number of

circulars issued from time to time by the railway

administration whereby fresh face substitutes have

been regularized.

10. It is apparent that there is a policy of the Railways

to grant regularization to these fresh face substitutes. We

need not refer to all the circulars issued in this behalf,

but a perusal of the documents especially those filed as

additional documents clearly show that the Railways has

a policy of regularizing these fresh face substitutes. This,

in our opinion, is a clear indicator that while making

appointment of fresh face substitutes, the field of choice

should be wide and all citizens who are qualified and

eligible should be given a chance to take part in the 9

selection process. Though these appointments may be

termed as short term appointments, the facts placed on

record reveal that thousands of fresh face substitutes

have been regularized and have become employees of the

Railways because of the policy of the Railways. It is,

therefore, imperative that while appointing fresh face

substitutes, a transparent system of appointment is

followed. It would be much better if the Railways follows

the regular system of appointment rather than making

appointments on ad hoc basis of fresh face substitutes.

However, as and when exigencies of service require that

fresh face substitutes have to be appointed, then also the

field of choice cannot be limited only to those who have

undergone their apprenticeship training with the Railways

since that would patently violate Article 14 and 16 of the

Constitution of India depriving those who have not

undergone apprenticeship training with the Railways of

an equal opportunity for applying for these posts. 10

11. Reliance has been placed by learned counsel

appearing for the Railways trained apprentices on the

judgment of this Court passed in the case of U.P. State

Road Transport Corporation and Another v. U.P.

Parivahan Nigam Shishukhs Berozgar Sangh and

Others,1. In Para 12 of the judgement it has been held

that all other things being equal, the trained apprentices

should be given preference upon direct apprentices. This

judgment does not help the appellants at all. What has

been held is that if the non-Railway trained apprentice is

equal to the Railways trained apprentice on merit, then

preference can be given to the Railways trained

apprentice. The word “preference” does not mean that the

Railways trained apprentice will have an exclusive right to

the exclusion of all others to be considered for

appointment. Both the Tribunal and the High Court were

justified in deciding this issue against the Railways and in

favour of the original applicants.

1 (1995) 2 SCC Page 1 11

12. As far as the second issue raised by Mr. R.

Venkatramni, learned senior counsel is concerned, we

may have sympathy with the appellants but we cannot

direct that they be continued in service. The courts below

held that they have been employed in violation of the

general directions issued by the Railways from time to

time wherein there is no restriction of limiting the field of

choice to Railways trained apprenticeship. It is only in

Bikaner Division of the Railways that this limitation

was placed.

13. The appellants were well aware that their

appointments made when the original applications were

pending before the Tribunal or when the writ petitions

were pending before the High Court were subject to the

result of the litigation. They did not choose to file any

application for intervention before the High Court. After

the Railways lost in the High Court and did not carry the

matter further, they approached this Court. They were

granted stay and have been continuing on the basis of the 12

stay order. They knew that their fate depended upon the

result of the litigation. Once their appeal is dismissed

they cannot be permitted to be continued in employment

only because they have been permitted to continue due to

the interim orders.

14. At this stage, we may note that the learned Solicitor

General had informed us that fresh regular recruitment

for Group-D posts and other posts in Bikaner Division of

the Railways is under process. On 24th August, 2017, 14

original applicants were granted age relaxation for a

period of 13 years and they were permitted to appear in

the selection process wherein their cases would be

considered on merit. Mr. R. Venkatramni, learned senior

counsel had sought time to take instructions from his

clients in this regard. He now submits that his clients,

having served for more than 10 years, are not in a

position to appear in the test. We are concerned with a

large number of appellants and in case the process for

selection is still on, we direct the Railways to give 13

relaxation of age to the appellants by deducting the period

of service for which they have worked and they may also

be considered at par with the original applicants by

allowing them to take part in the selection process. In

case the appellants or any of them do not take part in the

selection process, they will not be given relaxation of age

in any further selection process. As far as the intervenors

are concerned, no relief can be granted to them.

15. In view of the above, we do not find any merit in

these appeals which are dismissed accordingly.

16. Applications for substitution to bring on record the

legal representatives of the deceased Appellant Nos. 46,

50, 74, 94, 156, 167, 254, 289 and 304 and condonation

of delay in filing the substitution applications and setting

aside abatement are allowed. Applications for

impleadment are allowed to the extent that the applicants

are permitted to intervene in the matter. All other

pending applications stand disposed of. 14

CONTEMPT PETITION (C) NO(S). 291-293 OF 2016

17. In view of the fact that the process of selection is

stated to have started, the contempt petitions are

dismissed.

.....................................J. (MADAN B. LOKUR)

.....................................J. (DEEPAK GUPTA)

New Delhi September 20, 2017