Union Of India Through The General ... vs Laxman Shambu Kulam
2017 Latest Caselaw 1468 Bom

                                     1      WP.10928/2016(2)-Judgment

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

                  WRIT PETITION NO. 10928 OF 2016


1. Union of India through
    The General Manager
    Central Railway.
    Head Quarters, Central Railway CSTM
    Mumbai CST.

2. Divisional Railway Manager
    Central Railway, Mumbai Division,
    CSTM, Dist: Mumbai                        ...Petitioners
       Vs. 
Laxman Shambu Kulam
Age: 60 years, Superannuated
Wrorking as Khalasi Helper
In Mumbai Division 
Ganesh Nagar, K.N. Gaikwad Marg
Siddharth Colony Road, Chembur Naka
Mumbai - 71.                                  ...Respondent

Mr. T.J. Pandian, Advocate for the Petitioners 
Mr. Vicky A. Nagrani, Advocate for Respondent 


                           CORAM : SMT. V.K. TAHILRAMANI, &
                                       M.S. KARNIK, JJ.

DATED :5TH APRIL, 2017

ORAL JUDGMENT [ PER SMT. V.K. TAHILRAMANI, J.]

1. Rule. By consent Rule is made returnable forthwith and the

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matter is heard finally.

2. Heard learned Counsel for the Petitioners and learned

Counsel for the Respondent. The Petitioners in this Petition were

the original Respondents before the Tribunal and the Respondent

was the Applicant before the Tribunal.

3. This Writ Petition is preferred against the order dated 26 th

February, 2016 passed by the Central Administrative Tribunal,

Mumbai Bench, Mumbai in O.A. No.677 of 2015 whereby the O.A.

came to be allowed. The Respondent had preferred the said O.A.

seeking direction to the Petitioners to hold that as on 11 th January,

2013 i.e. the date of his last application he fulfills all the conditions

under Liberalized Active Retirement Scheme for Guaranteed

Employment (LARSGESS scheme) and thus he is eligible to be

considered under the said scheme i.e. he be given voluntary

retirement and his son be given employment under the said

scheme. The O.A came to be allowed.

4. The Respondent worked as Khalasi Helper under the

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Petitioner No.2. He had joined the permanent post of Khalasi on

14th September, 1987 and had completed more than 20 years of

qualifying services. The Railway Board by order dated 11 th

September, 2010 decided to extend the benefit of LARSGESS

Scheme to safety categories of staff with a Grade Pay of Rs.1800/-

p.m. In the order dated 11 th September, 2010 the qualifying service

was reduced from 33 years to 20 years and eligibility age group

from 55 -57 years to 50-57 years for seeking retirement under the

Scheme in the case of Safety categories with Grade Pay of

Rs.1800/-. Admittedly at that time the Respondent was covered by

the scheme.

5. On 5th August, 2011 the Respondent submitted application for

consideration of appointment to his son under the LARSGESS

Scheme. Since he did not receive any reply from the Petitioners, he

submitted a second application on 5th August, 2012. The

Respondent claimed that although he qualified on all norms for

consideration, he did not get any reply from the Petitioners. He,

therefore, submitted a third application on 11 th January, 2013 for

consideration of the appointment of his son under the LARSGESS

Scheme. Admittedly the Respondent's son was sent for medical

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examination vide letter dated 27th January, 2014 and he accordingly

underwent medical examination and was declared fit. After the

Respondent's son was declared fit, the Respondent was awaiting

appointment order in relation of his son. However, instead a letter

dated 28th August, 2014 was served on him informing him that his

date of birth as per the office record is 9 th February, 1956. There is

no dispute on either side that the date of birth of the Respondent is

9th February, 1956. However, in the said letter there was no

intimation regarding his application for employment of his son

under the LARSGESS scheme. Since the Respondent did not hear

anything from the Petitioners in relation to this he filed O.A. No.

677 of 2015 wherein it was prayed as under:

"8a) This Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same hold and declare that as on 11.01.2013 ie., the date of his last application the applicant fulfills all the conditions of LARSGESS scheme and thus is eligible to be considered under LARSGESS Scheme with all consequential benefits".

b) Alternatively this Tribunal may further be pleased to direct the respondents to consider all the three

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applications submitted by the applicant and pass speaking order thereof.

              c)       Cost of the application be provided for. 


              d)       Any   other   and   further   order   as   this   Hon'ble  

Tribunal deems fit in the nature and circumstances of the case be passed".

6. The main contention of the Respondent was that there was

inaction on the part of the Petitioners in not considering the case of

the Respondent for appointment of his son under LARSGESS

scheme. The contention of the Respondent was that the Petitioners

ought to have passed a speaking order in case his application was

rejected. However, the Petitioners had simply maintained silence

after sending his son for medical examination in January, 2014 and

despite the fact that his son passed the medical exam.

7. The learned Counsel for the Petitioner submitted that the

recruitment under the Liberalized Active Retirement Scheme for

Guaranteed Employment (LARSGESS) is twice in a year i.e.

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commencing from 1st January and 1st July of every year. As per the

scheme, the employees are required to submit their application

before 31st January and 31st July for the cycle commencing from 1 st

January and 1st July respectively. He pointed out that an employee

applying under the scheme is required to fulfill all the eligibility

condition on 1st January and 1st July for the respective cycles.

8. It is an admitted fact that no rejection letter has been served

upon the Respondent. As far as the first and the second application

are concerned they were preferred on 5 th August, 2011 and 5 th

August, 2012 respectively i.e. after 31 st July, hence they could not

have been considered. As far as the third application is concerned

which was preferred on 11th January, 2013, the learned Counsel for

the Petitioner contended that the Respondent had submitted

incomplete application without attesting the photograph of the

Respondent as well as of his son, hence, it was not considered.

However, it is an admitted fact that his application was returned

with a direction to get the photographs attested and to resubmit the

application. The Respondent resubmitted his application after

affixing photograph of himself and his son on 12th March, 2013.

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9. The issue involved in this Petition is whether the Respondent

is eligible for Voluntary Retirement under LARSGESS and whether

the application for employment to his son under LARSGESS can be

considered by the Petitioners on the basis of the prevalent rules and

points of law.

10. As stated earlier both the sides agree that the date of birth of

the Respondent is 9th February, 1956, therefore, he was due to

retire on 29th February 2016. The first application was submitted by

the Respondent on 5th August, 2011 and the second application on

5th August, 2012. As stated earlier application should be made only

between the period from 1st January to 31st January or from 1st July

to 31st July. As the earlier two applications were submitted on 5th

August, 2011 and 5th August, 2012, they could not have been taken

into consideration. However, the third application was submitted

on 11th January, 2013. It was within the time schedule fixed for

submitting the application. Hence, it deserved to be considered.

Admittedly the Respondent's son was sent for medical examination

on 27th January, 2014, a certificate showing that he was medically

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fit was issued by the Medical department on 31 st January, 2014

with a remark "Fit in Aye two and below". There is an entry

showing that the application was returned to the Respondent for

attesting the photographs on 8th February, 2013. This shows that

the case of the Respondent was under active consideration and had

not been rejected. Otherwise it would have not been stated that he

should return his papers after compliance i.e. affixing photographs

and attesting the same. This shows the Respondent's application

was very much alive and had not been disposed of. The

Respondent in fact was not informed about rejection of his

application at any time.

11. The learned Counsel for the Petitioners submitted that when

the Respondent preferred the O.A. he had only 3 months of service

left, hence he was not eligible under the scheme as under the

scheme the Applicant has to have 3 years of service left at the time

of preferring the application. The Respondent was eligible for

consideration under the LARSGESS Scheme as he had completed

20 years of regular service. He had worked in one of the safety

categories mentioned in the guidelines and on the date of his

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application ie., 11th January, 2013, he was below 57 years of age

and his date of birth was admittedly 9 th February 1956. Thus on

11th January, 2013 he had 3 years before he retired. In view of the

fact that the third application of the Respondent was returned after

8th February, 2013 for non-attestation of the photographs the

application would still be said to be alive. The son of the

Respondent was also sent for medical examination and was found

medically fit for appointment. The Respondent must have had a

reasonable expectation that after success in the medical

examination, his son will be offered a job by the Petitioners and he

must have waited with that expectation before approaching the

Tribunal for legal remedy. It is seen that when he preferred the

application on 11th January, 2013 the Respondent still had 3 years

for his superannuation. In view of the above facts we find no error

in the order of the Tribunal whereby the O.A came to be allowed.

Thus the Respondent and his ward had satisfied all requirements

for consideration under the LARSGESS scheme.

15. In view of the above discussion we are of the opinion that no

interference is called for in the order of the Tribunal. Hence, Rule

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is discharged.

16. At this stage the learned Counsel for the Petitioners requested

that they may be granted 3 months time to comply with the order

of the Tribunal. Time as prayed for is granted.

(M.S. KARNIK, J.) (SMT. V.K. TAHILRAMANI, J.)