1  

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)  

J U D G M E N T    

Deepak Gupta, J.  

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