The engagement and regularisation of substitutes in public employment must adhere to the Constitutional Scheme and relevant rules, as established by the Supreme Court.

R. Banumathi, J.

1. Challenge in this Writ Petition is the order of the Tribunal in O.A.No.520 of 2005 holding that notification dated 29.11.2004 and absorption of substitutes should not become a source of recruitment and directing the Appellants to strictly confine the recruitment in terms of Constitutional Scheme.

2. The educational qualification prescribed for Group 'D' in Railway Establishment is VIII standard pass. Group 'D' services mainly comprise of unskilled labour such as Khalasi, Sweepers, Sweeper-cum-Porters, Trackman etc. Up to 2001, recruitments for Group 'D' posts were to be made by Zonal Railways from open market at the level of Divisions/Workshops. By the letter dated 27.11.2001, the Railway Board advised that Group 'D' recruitment from open market was thereafter to be done by the Railway Recruitment Board. Again from 18.7.2005 Board advised that recruitments to Group 'D' posts are to be done by Zonal Railways themselves by creating a Recruitment Cell specially for recruitment purpose. Creation of a separate Recruitment Cell in a full-fledged manner and thereafter, issuing notification for Group 'D' recruitment and finalising the same needed considerable time.

3. By the letter dated 21.6.2004, the Board clarified that Course Completed Act Apprentices may be engaged as substitutes in administrative exigencies by the General Managers of Zonal Railways. The General Manager, Southern Railway approved engagement of Course Completed Act Apprentices trained in Railway Establishments as substitutes in Group 'D' safety category vacancies in order to meet out the bare minimum requirement of manpower. Case of Appellants is that the same was resorted to due to the reason that the Apprentices trained in the Railway Establishments would be in a position to directly undertake the work without any further training. Accordingly, notification No.P(S)/98/IV/P/Vol.III dated 29.11.2004 was issued calling for applications from the Course Completed Act Apprentices trained in Railway Establishments and process started.

4. Aggrieved by the said notification dated 29.11.2004 and engaging of Act Apprentices trained in Railway Establishments, Respondents 2 and 3 (Jaiganesh and Neelakandan) have filed O.A.No.520 of 2005 before the Central Administrative Tribunal. The grounds taken in O.A.No.520 of 2005 are that in the guise of engaging substitutes to regular vacancies in Group 'D' posts, the Appellants are attempting to make back door appointment ignoring the Rules and the Constitutional provisions. It was further contended that the Hon'ble Supreme Court time and again held that the Course Completed Act Apprentices have no right to be appointed in preference to other applicants and they have to go through the process of selection provided under the service regulations along with open market candidates and as such the impugned notification dated 29.11.2004 confining appointment to the Course Completed Act Apprentices is unconstitutional and illegal. It was averred that Section 22 of Apprentices Act makes it clear that it is not obligatory on the part of the employer to offer employment to any Apprentice who has completed apprenticeship training and in these circumstances, the action of the Railways in limiting the selection to the Course Completed Act Apprentices is illegal and is to be struck down.

5. Referring to (2006) 4 SCC 1 (Secretary, State of Karnataka and others v. Uma Devi and others) and (2006) 7 SCC 684 (Surendra Prasad Tewari v. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad and others) and observing that public employment has to be strictly in terms of the Constitutional Scheme, the Tribunal disposed of O.A.No.520 of 2005 (16.11.2006) holding as under:–

"17. As the public employment has to be strictly in terms of the constitutional scheme, the respondents cannot short circuit their responsibility for recruitment of departmental posts through Public Notice from the market. The relief sought for by the applicants in