Policy providing Back-Door entries are in violation of Article 16: SC on LARSGESS Scheme

Case Name: The Chief Personal Officer and Others v. A. Nishanth George

Civil Appeal No. 294/2022 and with Civil Appeal No. 295/2022

Bench: Justice Dr. Dhananjaya Y Chandrachud and Justice A. S. Bopanna

Judgment Date: 25/01/2022

Author: Pragash B, Advocate, Madurai Bench of Madras High Court

Background of the Case

On 2/1/2004, the Railway Board introduced the Safety Related Retirement Scheme for the categories of Gangmen and Drivers. Gangmen and Drivers have a crucial bearing on train operations and track maintenance and with advancing age, the reflexes of these staff and physical fitness might deteriorate which resulted in the above scheme. The Scheme includes provisions which set the age group as 55 – 57 years for voluntary retirement and the employee should have completed 33 years of qualifying service for voluntary retirement.

On 11/9/2010, the Railway Board notified that the benefit of the Scheme would be extended to other Safety categories of staff with a grade pay of Rs. 1800 per month. The period for qualifying service was reduced from 33 years to 20 years and the eligible age group from 55-57 years to 50-57 years. The Scheme was also renamed as Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (“LARSGESS Scheme”). Whereas for the Drivers the period of qualifying service and the eligible age group remain unchanged.

The Railway Board also reiterated that the retirement of an employee would be considered if a ward is found suitable in all aspects. It was envisaged that the retirement of the employee and appointment of the ward should take place simultaneously.

1. SLP (C) 906/2021

The father of the respondent was a Senior Trackman in Southern Railway pursuant to his appointment on 07/02/1988. On 02/12/2010, he submitted an application for Voluntary Retirement under the LARSGESS Scheme which was returned by the Senior, DPO, Madurai Division on 11/04/2011 on the ground that the applicant was overage at the time of cut-off date (01/07/2011). Then the applicant submitted second application on 28/01/2014 and on 31/12/2014, the employee retired and received his retirement benefits. The third application was submitted on 18/04/2015 seeking reconsideration of the first application, An Original Application was filed before the Madras Bench of the CAT seeking direction to provide employment to the respondent under the LARSGESS Scheme which was dismissed on 11/12/2017.

The respondent challenged the judgment of CAT under Article 226 of the Indian Constitution before the Madras High Court. By the Judgment dated 03/09/2019, the Honourable High Court observed that that the date of birth of the respondent should be reckoned as 16/12/1954 and the respondent should not be made to suffer for an inadvertent mistake and held that the application made by the father of the respondent is well within the age limit prescribed under the LARSGESS Scheme. The High Court also held that the Scheme was terminated, since the respondent’s father superannuated on 01/01/2015 prior to 27/01/2017, the benefit of the Scheme could be extended to him in terms of the notification dated 28/09/2018.

1. SLP (C) 1417/2019

The father of the respondent was working as Senior Trolley man in Southern Railways. On 29/09/2011, he opted for voluntary retirement under the LARSGESS Scheme and sought the appointment of the respondent who qualified in the written examination. On 10/04/2012, the respondent was informed that he was found unfit in class AYE THREE but found fit in Class CEE ONE and so he is unfitting for appointment to the post of Trackman which was also affirmed by Medical Board on 04/01/2013. Subsequently, the respondent made a representation to the Grievance Cell of Southern Railways to consider his claim for the appointment as Trackman which was rejected by a letter dated 12/12/2013. Afterwards, the respondent moved the Madras Bench of CAT praying for his appointment under the Scheme. The Tribunal disposed off the case on 01/04/2016, directing the Railways to consider his case for appointment for any post of CEE ONE and below.

The claim of the respondent was rejected on 31/05/2016 stating that the ward of the employee must be considered for appointment only in the lowest recruitment grade from which the employee seeks retirement. Another Original Application was filed by the respondent before the CAT in which the Tribunal has directed the Railways to consider the respondent in a post according to his medical fitness. In furtherance, in 2017, the respondent instituted a writ petition before the Madras High Court, praying for mandamus directing compliance with the order of the Tribunal, in which the Honourable Court directed the implementation of the Judgment of the Tribunal through its Judgment dated 14/11/2017. The Divisional Officer of the Southern Railways negated the claim of the respondent. Then the respondent has instituted a writ petition before the Madras High Court in which through the Judgment dated 31/03/2018, the Court came to the conclusion that the rejection of the claim was in disregard of the order of the tribunal. The Petition was accordingly allowed by directing the Railways to comply with the order dated 24/03/2017. The judgments of the High Court in the two cases have given rise to the present appeals.

Findings of the Honourable Court

1. SLP (C) No. 1417 of 2019

It is evident that a Coordinate Bench of the High Court had taken the view that the benefit of the LARSGESS Scheme could not be extended where an employee has attained the age of superannuation in the normal course before 27 October 2017. The respondents’ fathers superannuated on 31 May 2016 (SLP (C) No. 1417 of 2019) and on 31 December 2014 (SLP (C) No. 906 of 2021). The contention of the respondents that since the claims were pending adjudication before various fora, the delay cannot be attributed to then is erroneous. This Court in Manjit (supra) held that pending claims under the scheme must be closed. The respondents cannot claim any vested right under the Scheme. Clause (x) of notification which was issued on 2 January 2004 states that discretion to accept the request for retirement will vest with the administration depending on the suitability of the wards for the appointment in the same category as the employee. Therefore, the respondents cannot be brought within the purview of the exception merely because the claim was made before 27 October 2017. (Para 20)

Moreover, we also find that the individual cases of the respondents’ do not hold any merit. In the appeal arising out of SLP (C) No. 1417 of 2019, the respondent was found to be medically unfit for the post of trackman under the LARSGESS Scheme. The basis of the claim of the respondent originates in the order of the Tribunal dated 1 April 2016. The Tribunal proceeded on the basis that though the respondent was found unfit for the post of Trackman, he was medically fit for any CEE ONE post and posts below. After due consideration, appointment was denied by a letter dated 31 May 2016 on the ground that the ward of an employee can be considered under the LARSGESS Scheme only in the lowest recruitment grade of the ‘respective category’ of the employee seeking retirement…… (Para 21)

…… The respondent’s father was a Trackman. For the respondent to have been appointed under the Scheme, he must have fulfilled the criteria for the appointment in the category in which his father was serving. Therefore, in terms of the Scheme, though the respondent fulfilled the medical criteria requirement for some other posts, he could not be considered for appointment. It is clearly evident that on the plain terms of the scheme as it stood, the case of the respondent did not fulfil the criteria envisaged in the Scheme. (Para 22)

1. SLP (C) 906/2021

The respondent submitted that according to the notification issued by the Ministry of Railways on 29 March 2011, the recruitment process under LARSGESS Scheme must be done twice in a year according to the fixed time schedule. It was submitted that according to the time schedule, the cut-off date for determining the eligibility of the employee and their ward was 1 January for the first half; and the last date for receiving the applications was 31 January. For the second half of July – December, the cut-off date was 1 July; and the last date for receiving applications was 31 July. The first application of the respondent was submitted on 2 December 2010…………………………….On the rejection of the application of the respondent’s father on 11 April 2011, a fresh application ought to have been filed before 31 July 2011, mentioning the correct date of birth. However, the respondent filled the second application on 28 January 2014, nearly 3 years later when he was 59 years and 15 days as on the cut-off date of 1 January 2014. When he submitted his second application. He had already superannuated and was above the age criteria of 57 years. (Para 24)

The Tribunal in the present case dismissed the OA filed by the respondent noting that the constitutional validity of the scheme was suspect and that moreover the father of the respondent had retired on attaining the normal age of superannuation. On a considered view of the matter, we hold that there was no error in the judgment of the Tribunal………. In this backdrop, the impugned judgment of the High Court of Madras issuing a mandamus for the appointment of the respondent cannot be sustained. (Para 25)

We accordingly allow the appeals and set aside the judgments of the Madurai Bench of the Madras High Court dated (i) 21 March 2018 in WP (MD) No. 5046 of 2018; and (ii) 3 September 2019 in WP (MD) No. 6452 of 2018 and companion cases. The Writ Petitions filed by the respondents before the High Court shall stand dismissed. There shall be no orders as to costs. Pending application(s) if any stands disposed. (Para 26)

Legal History

The LARSGESS Scheme was scrutinised by a Division Bench of the High Court of Punjab and Haryana dated 27 April 2016 in Kala Singh v. Union of India, CWP No. 7714/ 2016. The appeal arose against the Central Administrative Tribunal (“CAT”) which dismissed the original application filed by the employees of the Railways seeking postponement of the dates of their voluntary retirement to the date on which their wards were appointed under the Scheme. Justice Surya Kant observed that the claim of the petitioners does not stand to the test of Articles 14 and 16 of the Constitution of India. This policy is a device evolved by the Railways to make back-door entries in public employment and brazenly militates against equality in public employment. The High Court dismissing the writ petition directed the railway authorities to revisit its validity and sustainability keeping in view the principles of equal opportunity and elimination of monopoly in holding public employment before making any appointment under the ‘Offending Policy’.

Subsequently an application was moved by the Railways seeking Review of the above decision in RA-CW-330-2017 which was dismissed by the Division Bench on 14/07/2017. Then the above Judgment was challenged by the Railways under Article 136 of Indian Constitution before the Honourable Supreme Court of India in SLP (C) No. 508/2018 and the same was dismissed by our Apex Court. The Supreme Court of India observed that the direction in the impugned order is only to re-visit the Scheme in question, no interference is called for at this stage.

On 26/09/2018, the Railway Board notified its decision to terminate the LARSGESS Scheme in view of the observation of the Honourable Punjab and Haryana High Court in Kala Singh vs Union of India. Afterwards on 28/09/2018, the following decision was notified by the Railway Board stating that the LARSGESS Scheme continues to be on hold with effect from 27.10.2017 and for the staff who retired before 27.10.2017 and appointment of whole wards was not made, the appointment of such wards can be made with the approval of the competent authority.

Consequently, an Interim application was moved before this Court in Union of India v. Kala Singh, 2019 SCC OnLine Sc 1945 in which the Honourable Court observed that since the Scheme stands terminated and is no longer in existence, nothing further need to be done in the matter. In Narinder Siraswal v. Union of India, 2019 SCC OnLine SC 1966, which was decided on 06/03/2019, the Apex Court has allowed the petitioners in that case to move the authorities with an appropriate representation since they were claiming the benefit of the Scheme which was prevalent when their applications had been filed.

In Manjit v. Union of India, 2021 SCC OnLine SC 49, the jurisdiction of the Honourable Supreme Court of India was invoked under Article 32 of the Constitution seeking a mandamus directing the Union of India and the Railways to appoint the petitioners in terms of the LARSGESS Scheme. The Court observed that i) the grant of reliefs to the petitioners would only enable them to seek back door entry; ii) the Union of India had correctly terminated the Scheme; and iii) no person can claim a vested right or legitimate expectation under the scheme.

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