26 May 2020


Judgments

Supreme Court

Abdul Hamid and Ors. v. Union of India (UOI) and Ors.

MANU/SC/1190/2017

20.09.2017

Service

Once appeal is dismissed, employee cannot be permitted to continue in employment on basis of earlier interim orders

The original applications were filed before the Jodhpur Bench of the Central Administrative Tribunal. The dispute raised in present 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. 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 apprenticeship training with the Railways. It is submitted 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.

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". 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.

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 had completed the apprenticeship training with the Railways. The Tribunal vide common order dated 24th February, 2005 held that, this memo violates Articles 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. Perusal of order leaves no manner of doubt that the appointment of the Appellants herein was subject to the final decision of the writ petitions.

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 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 25th August, 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.

It is apparent that, there is a policy of the Railways to grant regularization to these fresh face substitutes. This 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 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 follow 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 Articles 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.

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.

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 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. Appeals dismissed.

Tags : Appointment Continuity Grant

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