Hon'ble Rajeev Misra,J.
1. Challenge in this writ petition under Article 226 of the Constitution of India is to the judgement and order dated 11.02.2016 passed by Central Administrative Tribunal, Allahabad (hereinafter referred to as Tribunal) in Original Application (hereinafter referred to as O.A.) No. 330/00171 of 2016 (Shukru Vs. Union of India and others) whereby Tribunal has dismissed above mentioned O.A. filed by applicant-petitioner challenging order dated 26.08.2015 passed by respondent-3, Divisional Railway Manager, North Central Railway, Allahabad (hereinafter referred to as "DRM, NCR"). Challenge is also to the order dated 26.08.2015 passed by DRM, NCR whereby claim of applicant-petitioner for grant to benefit under LARSGESS Scheme has been rejected.
2. We have heard Mr. Atmaram Singh, learned counsel for applicant-petitioner and Mr. Anand Kumar Ray, learned counsel for respondents.
3. Perusal of record shows that applicant-petitioner, Shukru was working on the post of 'Trackman' under respondent-DRM, NCR
4. During the course of employment of applicant-petitioner, Railways in the year 2004, introduced a Scheme known as Safety Related Retirement Scheme (hereinafter referred to as 'SRRS') for the posts of Driver and Gangman. Above mentioned Scheme came into force vide Railway Board's Circular dated 02.01.2004.
5. Aforesaid SRRS Scheme came to be modified vide Railway Boards' Circular dated 11.09.2010. Nomenclature of SRRS Scheme was changed as Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff ( hereinafter referred to as 'LARSGESS') with Grade Pay of Rs.1800/-. The qualifying service for grant of benefit under the above mentioned scheme was reduced from 33 years to 20 years and the eligibility age group was reduced from 55-57 years to 50-57 years for seeking retirement under the Scheme in case of safety category with Grade Pay of Rs.1800/-. Employment under the Scheme would be guaranteed only to such candidates who are found eligible /suitable and finally selected as per procedure. The condition of qualifying service i.e. 33 years and age group i.e. 55 to 57 years for Drivers remained unchanged. Retirement of an employee was to be considered only if his ward was found suitable in all respects. Retirement of the employee and appointment of the ward were to take place simultaneously.
6. In the year 2010, office of DRM, NCR issued a circular letter dated 01.12.2010 whereby application from desirous candidates were invited for grant of benefit under the above noted scheme. The cut of date provided for submitting application form was fixed as 31.12.2010.
7. Subsequently, another circular dated 24.08.2012 was issued by respondent-3, DRM, NCR, whereby eligibility conditions provided in above noted circulars were made public and further desirous candidates were required to fill the form as provided in the circular dated 24.08.2012.
8. Applicant-petitioner, who was admittedly working on the post of Trackman, fulfilled the criteria for grant of benefit under the above noted scheme. Accordingly, he submitted application alongwith biodata of his ward for grant of benefit i.e. retirement of himself and appointment of his son.
9. Application submitted by applicant-petitioner was scrutinized and verified by concerned office. Thereafter, a chart was published showing names of employees, who were to be superannuated under the scheme noted above. Name of applicant-petitioner finds mention at Sl. No. 7 of the chart, copy of which is on record as Annexure-4 to the writ petition.
10. In spite of the fact that applicant-petitioner duly applied under the above noted scheme but no consequential action was taken. Applicant-petitioner therefore submitted an application dated 19.03.2015 ventilating his grievances. As no decision was taken even on application dated 19.03.2015, he was compelled to file O.A. No. 681 of 2015 (Shukru Vs. Union of India and others) before Tribunal. Aforesaid O.A. came to be disposed of finally vide order dated 15.07.2015, which is quoted as herein-below:-
"1. Sri Atma Ram Singh, learned counsel for the applicant. Shri D. Tiwari, proxy for Shri R. K. Srivastava, learned counsel for the respondents.
2. It is the contention of the counsel for the applicant that the applicant is fully eligible to get appointment under the Liberalized Active Retirement Scheme for Granteed Employment for Safety Staff (LARSGESS) scheme. The father of the applicant applied for Voluntary Retirement Scheme and he drew our attention to page no.14 wherein in serial no.7 the name of the applicant is figuring which is published on 24.08.2012 for appointment under LARSGEES scheme. Counsel for the applicant states that in this regard he has preferred a representation dated 19.03.2015 but till date neither the representation has been decided nor any action has been taken by the respondents for offering appointment to him. The counsel for the applicant states that at this stage he will be satisfied if a direction is given to the respondents for deciding his pending representation as per rules.
3. Accordingly, the respondents are directed to take a decision on the representation dated 19.03.2015 within a period of one month from the date of receipt of certified copy of this order.
4. In view of the above, original application stants disposed of without going into the merits of the case. No Costs."
11. Pursuant to aforesaid order, respondent-3, DRM, NCR passed order dated 26.08.2015 rejecting claim of applicant-petitioner under LARSGESS Scheme.
12. Perusal of order dated 26.08.2015 goes to show that claim of applicant-petitioner has been rejected by observing as follows:
"I have observed that Railway Board in their letter No. E (NG) II/2009/RR-1/10/pt. Dated 09.12.10 i.e. well before issue of Notification dated 24-08-2012 have decided that henceforth minimum educational qualification for recruitment in Pay Band-1 of Rs.5200-20200 having grade pay Rs.1800 will be 10th pass or ITI or equivalent. These instructions were applicable for all future recruitment against direct recruitment quota through all modes. Railway Board in their letter No. E (NG) II/2011/RR-1/11 dated 09.12.11 have also decided that in exceptional circumstances relaxation of educational qualification as per recommendation of 6th CPC, may be considered to the categories of compassionate ground appointment., Land Loser, accident victims, LARSGESS and Substitutes. While issuing the Notification dated 24-08-12 the point that the qualification for recruitment in G.P. Rs. 1800/- should be matriculation as pdr recommendation of 6th CPC was overlooked. Therefore, before finalizing the selection keeping in view the spirit of Board's instructions the competent authority decided that the qualification should be 10th pass for recruitment under LARSGESS. Accordingly, Para 3 (iii) (b) of Notification dated 24-08-12 was deleted vide this office letter No. 797-E/OVRS/Policy dated 06.02.13. After deletion of Para 3 (iii) (b) of Notification dated 24-08-12, 8th pass wards of employees, applying against this Notification were not to be considered under this scheme.
On going through the record, it is observed that;
You have applied for LARSGESS cycle period 01-07-12. Since your ward does not possess the requisite minimum qualification of high school pass or equivalent as per modified eligibility conditions issued vide letter No. 797-E/OVRS/Policy dated 06.02.13, your request for appointment of your ward under LARSGESS cannot be considered.
In view of the above, your representation dated 19.03.2015 is disposed of. "
13. Applicant-petitioner challenged order dated 26.08.2015 by filing O.A. No. 330/00171 of 2016 (Shukru Vs. Union of India and others). Tribunal vide judgement and order dated 11.02.2016 has dismissed O.A. It has concurred with the reasoning recorded by respondent-3 in the impugned order dated 26.08.2015.
14. Thus feeling aggrieved by order dated 26.08.2015 passed by respondent-3, DRM, NCR as well as judgement and order dated 11.02.2016 passed by Tribunal, applicant-petitioner has now approached this Court by means of present writ petition.
15. Mr. Atmaram Singh, learned counsel for applicant-petitioner, in challenge to impugned orders dated 26.08.2015 and 11.02.2016 submits that same are patently illegal and therefore, liable to be quashed by this Court. According to learned counsel for applicant-petitioner, Railway floated the Scheme known as SRRS vide Circular dated 02.01.2004. The nomenclature of aforesaid scheme was changed as LARSAGEE for Safety Staff with Grade Pay of Rs.1800/- Appointment under the aforesaid scheme would be guaranteed only to those found eligible /suitable and finally selected as per procedure. The qualifying service was quantified as 33 years and age group for 50 to 57 years and for Drivers 55 to 57 years was provided. Retirement of employee was to be considered only if the ward was found suitable in all respects. Retirement of the employee and appointment were to take place simultaneously. Subsequently notification dated 24.08.2012 was issued by respondent-3 which provided eligibility criteria for appointment under LArsagee Scheme. For ready reference the eligibility conditions provided in above noted circular are reproduced herein-below:-
Þ 3- ik=rk gsrq eq[; 'krsZ& ßi) ik=rk dks fu/kkZu.k vi;qZDr frfFk;ksa esa ls ,d dks ¼ftlds fy, vkosnu fd;k gS½ vk/kkj eku dj fd;k tkosxk] ftlds fy, deZpkfj;ksa dks vkosnu i= esa ik=rk dh frfFk fu/kkZfjr dkye esa vafdr djuh gksxhA
ii) ;kstuk ds vUrxZr lsokfuo`fRRk gsrq bPNqd deZpkjh dh vk;q 50 ls 57 ds e/; rFkk vgZd lsok (Qualifying Service) 20 o"kZ ;k vf/kd ik=rk dh frfFk dks gksuh pkfg,A
iii) (a) deZpkfj;ksa ds [email protected] iq=h ¼ ftlds fopkj fd;s tkus vkosnu fd;k gS½ dh 'kSf{kd ;ksx;rk gkbZ Ldwy vFkok led{k gksuh pkfg,A
(b) deZpkfj;ksa ds iq= @ iq=h ftudh 'kSf{kd ;ksx;rk gkbZZLdwy vFkok led{k ugha gS vkSj os d{kk 8 mRrh.kZ gS ;kstuks essa 'kkfey gks ldrs gS ijUrq os jsyos cksMZ ds i= la[;k (E (NG) ii/2011/RR-1/11vi) fnukad 09-12-2011 ds funsZ'kkuqlkj 'kkflr gksxsaA p;u gksus dh n'kk esa mudh fu;qfDr isf'k{kq (Trainee) ds :iesa&1S is cSUM esa fcuk fdlh xzsM is ds dh tk;sxhA&1S is cSUM esa vfiZr vof/k fdlh Hkh ;kstuk gqrq lsok ugha ekuh tk;sxh vksj gkbZ Ldwy vFkok led{k ijh{kk mRrhZ.k gksus ds i'pkr xzsM is :0 [email protected] esa fu;qfDr ds mijkUr gh fu;fer lsok vkjEHk ekuh tk;sxhA
(iv) deZpkfj;ksa ds iq= @ iq=h dh vk;q ik=rk dh frfFk dks [kqys cktkj ls HkrhZ ds fy, fu/kkZfjr vk;q gksuh pkfg,A ;kstuk ds vUrxZr vk;q lhek 18 c"kZ ls 33 c"kZ rFkk vf/kdre vk;q lhek esa vks0ch0lh0 dks 03 o"kZ rFkk ,[email protected],d0V0 ds fy, 05 o"kZ dh NwV ns; gksxhA
(v) deZpkfj;ksa ds iq= @ iq=h dks xzsM is :0 1800 in gsrq fopkj fd;k tkosxkA
(vi) deZpkjh dh lsokfuo`fr mlds iq= @ iq=h ds p;[email protected] ijh{kk bR;kfn esa lQy ik;s tkus ij fuHkj gksxhA
(vii) mijksDr ds vfrfjDr le;≤ ij jsyos cksMsZ @ eq[;ky; )k jk tkjh funsZ'k ykxw gksaxsA 4- (a) bl ;kstuk ds vUrZxr dksbZ Hkh vkosnu i= lh/ks e.My dk;kZy; esa Lohdk;Z ugha gksaxsA deZpkjhx.k vkosnu i= vius ofj"B v/khuLFk ¼ ftuds )kjk deZpkjh ,oa deZpkjh ds iq= @ iq=h dks QksVksxkzQ lR;kfir djus ds mijkUr vkosnu i= vxzlkfjr fd;k tk;sxk½ ds ikl fnukad 24 flrEcj]2012 rd izf"kr djsxsA
(b) ftu deZpkfj;ksa dh lsok iaftdk dkfeZd 'kk[kk esa esUVsu gksrh gS] mu deZpkfj;ksa ds nks izfr;ksa esa vkosnu i= ofj"B v/khuLFk 28 flrEcj] 2012 rd lwph] tks fu;a=d vf/kdkjh )kjk iozfrgLrk{kfjr gks] ds lkFk dkfeZd 'kk[kk esa lEcfU/kr Mhfrax ds eq[; dk;kZy; v/kh{kd ds ikl tek djsaxsA
(c) ftu deZpkfj;ksa dh lsok iaftdk ykbu ds dk;kZy;ksa esa esUVsu gksrh gS muls lEcfU/kr bapktZdeZpkfj;ksa dh vgZd lsok dk lR;kiu ys[kfoHkkx ls djkdj 15 vDVwcj 2012 rd lEcfU/kr dksfV ds Mhfyax xzqi ds eq[; dk;kZy; v/kh{kd ds ikl dkfeZd 'kk[kk esa nks izfr;ksa esa vkosnu i= lwph ds lkFk tek djsxsaAß "3. Main conditions of eligibility:-
i. Eligibility shall be ascertained taking one of the aforesaid dates as basis (for which date the application has been given), for which the employees shall have to mention the date of eligibility in the given column in the application.
ii. The employee willing to retire under the scheme must have attained the age of 50 to 57 years and the qualifying service of 20 years or more on the eligibility date.
iii. a. The educational qualification of the employees' sons/daughters (to consider whom applications have been given) shall be High School or equivalent thereto. b. The employees' sons/daughters whose educational qualifications are not High School or equivalent thereto, but who have passed class 8 exams, can be a beneficiary of the scheme, but they will be governed by the letter no. E (NG) ii/2011/RR-1/11vi dated 09.12.2011 of the Railway Board. In case of selection, their appointments shall be made as trainee in pay band 1S without any grade pay. Service rendered in the pay band 1S shall not be taken to be qualifying service for any scheme and his service from the date of his joining in the Grade Pay of Rs 1800/-, subsequent to his passing High school or equivalent examination, shall be taken to be the regular service.
iv. The age of employees' sons/daughters should be the same as prescribed for the open recruitment. Under this scheme, the age range shall be 18 years - 33 years, wherein age relaxation of 03 years and 05 years in upper age limit shall be admissible to the O.B.C. and S.C./S.T. Respectively.
v. Employees' sons/daughters shall be considered for Grade Pay of Rs 1800/-.
vi. The retirement of employee shall be subject to his son/daughter being found successful in selection/medical examination, etc. vii. In addition to the aforesaid, directions issued from time to time by the Railway Boards/ Headquarters shall be applicable.
4. (a) Under this scheme, no application shall be accepted directly in the Divisional office. The employees shall forward the applications latest by 24 September, 2012 to their senior officers (by whom such applications shall be forwarded after attestation of the photographs of the employee and his son/daughter).
(b) In case of the employees whose service books are maintained at the personnel branch, the senior subordinate shall by 28th September, 2012 submit applications in duplicate of such employees with the list duly countersigned by the controlling officers to the Chief Office Superintendent of the concerned dealing group in the personnel branch.
(c) In case of the employees whose service books are maintained with the offices of the Lines, the concerned Incharges, after getting the qualifying services of such employees verified from the accounts department, shall by 15th October, 2012 submit the applications in duplicate along with list to the Chief Office Superintendent of the group dealing with the concerned category in the personnel branch.
(English Translation by Court)
16. Learned counsel for applicant-petitioner submits that admittedly applicant-petitioner applied under the aforesaid policy within time. But his ward was not appointed. Paragraph 3 (iii) (b) of notification dated 24.08.2012 came to be deleted vide letter dated 06.02.2013. Therefore, submission is that on the date of application, son of applicant-petitioner was fully qualified. Amendment made vide notification dated 06.02.2013 was prospective in nature and not retrospective. DRM, NCR and Tribunal, both have failed to consider this aspect of the matter which has resulted in injustice to applicant-petitioner. Consequently, judgement and order dated 11.02.2016 passed by Tribunal and order dated 26.08.2015 passed by DRM, NCR are liable to be quashed by this Court.
17. Mr. Anand Kumar Ray, learned counsel for respondents in opposition to the submission raised by learned counsel for applicant-petitioner submits that applicant-petitioner is claiming benefit under the LARSGESS Scheme, which itself has been struck down as unconstitutional by Punjab and Haryana High Court vide judgemnt dated 27.04.2016 rendered in CMWP No. 1714 of 2016. Aforesaid judgement has been upheld by Apex Court in SLP (Civil) No. 508 of 2018 decided on 06.01.2018. It is thus urged that since the Scheme itself has been declared unconstitutional, now applicant-petitioner cannot be granted any benefit under the LARSGESS Scheme.
18. It is an undisputed fact that subsequent to policy decision taken by Railways as amended from time to time respondent- DRM, NCR issued memorandum dated 24.08.2012 providing methodology for submission of applications under the LARSGESS Scheme. It is not disputed that subsequent to aforesaid memorandum, applicant-petitioner duly applied, his name was short listed and finds mention in the list of candidates who were to be granted benefit of LARSGESS Scheme. This document is dated 18.10.2012, which is prior to the amendment made in notification dated 24.08.2012 vide letter dated 06.02.2013. From perusal of operative portion of impugned order dated 26.08.2015 passed by respondent-3 and quoted herein above, it is apparent that after deletion of Para 3 (iii) (b) of Notification dated 24.08.2012 vide letter dated 06.02.2013, 8th pass wards of employees applying against this Notification were not to be considered under the Scheme referred to above. Admittedly, applicant-petitioner, whose son is Class 8th pass had applied much prior to 06.02.2013. Therefore, case of son of applicant-petitioner for appointment under LARSGESS Scheme was to be considered as per qualification provided in the unamended notification dated 24.08.2012. Since applicant-petitioner has not applied subsequent to letter dated 06.02.2013 by which notification dated 24.08.2012 stood amended, both respondent-3 as well as Tribunal erred in law in rejecting claim of applicant-petitioner. Consequently in our view both the impugned orders are liable to be quashed.
19. There is another aspect of the matter. Railway Board has issued letter dated 26.09.2018 which reads as under:
The Hon'ble Punjab and Haryana High Court in its judgement dated 27.04.2010 in CWP No.7714 of 2016 had held that the Safety Related Retirement Scheme 2004 (later renamed as the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) 2010) 'prima facie does not stand to the test of Articles 14 and 16 of the Constitution of India." It had directed "before making any appointment under the offending policy, let its validity and sustainability be revisited keeping in view the principles of equal opportunity and elimination of monopoly in holding public employment." Thereafter, in its judgement dated 14.07.17 (Review Petition RA-CW-330-2007 in CWP No. 7714 of 2016) the Hon'ble High Court reiterated its earlier direction and stated "such a direction was necessitated keeping in view the mandate of the Constitution Bench in State of Karnataka Vs. Uma Devi (2006) 4 SSC 1.
1.1 In the appeal against the judgement of the Hon'ble High Court of Punjab & Haryana, the Hon'ble Supreme Court of India, while disposing of the SLP (C) No. 508 of 2018 vide its order dated 08.01.18, declined to interfere with the directions of the High Court.
2. In compliance with above directions, Ministry of Railways have revisited the scheme duly obtaining legal opinion and consulted Ministry of Law & Justice. Accordingly, it has been decided to terminate the LARSGESS Scheme w.e.f. 27.10.2017 i.e. the date from which it was put on hold. No further appointments should be made under the Scheme except in cases where employees have already retired under the LARSGESS Scheme before 27.10.17 (but not normally superannuated) and their wards could not be appointed due to the Scheme having been put on hold in terms of Board's letter dated 27.10.17 though they had successfully completed the entire process and were found medically fit. All such appointments should be made with the approval of the competent authority.
3. Please acknowledge receipt.
(N P Singh) Joint Director (P&A) Railway Board. "
20. Paragraph 1.2 of above quoted letter dated 26.09.2018 clearly provides for consideration of certain cases. In our view, case of applicant-petitioner can also be considered inasmuch as on account of a wrong decision taken by respondent-3, claim of applicant-petitioner has been negated.
21. For the reasons given herein above present writ petition succeeds and is allowed. Impugned order 11.02.2016 passed by Central Administrative Tribunal, Allahabad and order dated 26.08.2015 passed by Divisional Railway Manager, North Central Railway, Allahabad are hereby quashed. Respondents are directed to extend benefit of LARSAGEE Scheme to applicant-petitioner within a period of three months from the date of production of a certified copy of this order. However, in the facts and circumstances of the case, we make no order as to costs.
Order Date :- 17.12.2019 YK