Jagdish S/O Vasubhai Zala vs Union Of India
2023 Latest Caselaw 3704 Guj

     C/SCA/899/2021                                   ORDER DATED: 01/05/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/SPECIAL CIVIL APPLICATION NO. 899 of 2021
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                JAGDISH S/O VASUBHAI ZALA
                          Versus
                      UNION OF INDIA
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Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1,2
MR BB GOGIA(5851) for the Petitioner(s) No. 1,2
MS KAJAL L KALWANI(6623) for the Petitioner(s) No. 1,2
 for the Respondent(s) No. 1,2
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  CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
        and
        HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 01/05/2023
                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioners have prayed for following relief, "A. xxx xxx xxx.

B. YOUR LORDSHIPS may be pleased to quash and set aside the order (oral) dated 28.08.2019 in O.A. No. 275 of 2019 with M.A. No. 286 of 2019 and further direct the Respondents to consider case of Petitioner No. 1 and release appointment to Petitioner No. 2 on suitable post under the LARGESS Scheme in terms of Railway Board's letter No. E (P&E) 1-2015/RT- 43 dated 26.09.2018 read with Railway Board's CIrcular Policy dated 28.09.2018 for his appointment.

      C/SCA/899/2021                                             ORDER DATED: 01/05/2023




      C.      xxx      xxx       xxx.
      D.      xxx      xxx       xxx.
      E.      xxx      xxx       xxx."

2. Heard learned advocate, Ms. Kajal Kalwani for the petitioners.

3. Learned advocate has referred to the averments made in the memo of petition and submitted that the petitioner no.1 was serving as Sr. Cleaner in SSE (Elec) (TL) Rajkot and the petitioners submitted an applications in the year 2010, 2011 and 2012 under the prevailing scheme i.e. Liberalised Active Retirement Scheme (LARGESS) for the employement of his son on appropriate post. The petitioner no.2 is the son of the petitioner no.1. The respondent, vide communication dated 06.09.2013, rejected the representation made by the petitioner no.1 on the ground that the petitioner no.1 has not completed 20 years qualifying services and, therefore, his case cannot be considered under LARGESS scheme. The petitioner, therefore, challenged the said letter/ order dated 06.09.2013 before the Tribunal by filing OA No.285/2013 along with MA No.305/2013. The Tribunal disposed of the said application by an order dated 31.01.2017 without entertainig the merits or de-merits of the matter. In the meantime, the petitioner no.1 retired from the services on attaining the age of superannuation on 30.06.2016.

Thereafter on 26.09.2018 and 28.09.2018, the respondent - Railway Board issued letter for

C/SCA/899/2021 ORDER DATED: 01/05/2023

termination of LARGESS scheme w.e.f. 27.10.2017. The petitioner no.1 submitted representations dated 30.11.2018 and 27.02.2019 and requested the respondent to consider the case of the petitioner no.2 for the appointment under the LARGESS scheme. The said request was rejected and, therefore, the petitioners challenged the rejection of the request by filing OA No.275/2019 with MA No.286/2019 before the Central Administrative Tribunal, who by impugned order dated 20.08.2019, dismissed the said application submitted by the petitioners. The petitioners, therefore, preferred the present petition.

4. Learned advocate for the petitioners has referred to the scmeme framed by the respondents and submitted that the petitioners are entitled to the benefits of the scheme. The petitioner no.2, who is son of the petitioner no.1, is eligible for the appointment under the said scheme. It is further submitted that the Tribunal has committed an error while observing that the case of the petitioner is not covered under the Circular dated 26.09.2018. Learned advocate contended that in fact, the case of the petitioner is covered under the Circular dated 26.09.2018, copy of which is placed on record at Page Nos.67-68 of the compilation. Learned advocate, therefore, urged that the ipugned order passed by the Tribunal be set aside and appropriate direction be issued to the respondents.

C/SCA/899/2021 ORDER DATED: 01/05/2023

5. We have considered the submissions canvassed by learned advocate for the petitioner. We have also perused the material placed on record.

6. From the material placed on record, it would emerge that the petitioner no.1, who was serving as Sr. Cleaner with the respondent, made representation with a view to give employment to his son i.e. the petitioner no.2 under the prevailing scheme i.e. Liberalised Active Retirement Scheme (LARGESS). The scheme framed by the respondents was changed from time to time and on 28.09.2018, the respondent terminated the aforesaid scheme w.e.f. 27.10.2017. It is pertinent to note that the petitioner no.1 has retired from the services on 30.06.2016 on attaining the age of superannuation and his retirement dues including pension were fixed on the basis of his 19 years qualified service.

7. We have also gone through the judgment of the Hon'ble Supreme Court in case of Chief Personnel Officer & Ors. Vs. A Nishanth George, reported in 2022 (2) Scale 357, wherein the Hon'ble Supreme Court has considered the scheme framed by the respondent. In the said judgment, the Hon'ble Supreme Court has observed in Paragraph Nos.14 to 20 as under,

14. The Divisional Office of Southern Railway perused the files of the respondent to determine the feasibility of his appointment in CEE ONE posts and below. The

C/SCA/899/2021 ORDER DATED: 01/05/2023

claim of the respondent was rejected on 31 May 2016 in view of the notification of the Railway Board dated 2 January 2004 governing the LARSGESS scheme to the effect that the ward of the employee must be considered for appointment only in the lowest recruitment grade from which the employee seeks retirement. Since the respondent was found to be medically unfit for appointment in the category of Trackman and his father was due for retirement from service on 31 May 2016, the claim was rejected. The respondent once again moved an OA before the Tribunal. The Tribunal by its judgement dated 24 March 2017 noted that the respondent was declared to be unfit in the medical examination for the post of Trackman. However, the Tribunal observed that its earlier order on 1 April 2016 had recorded that the respondent was medically fit for the post of CEE ONE and below. The Tribunal accordingly directed the Railways to consider the respondent in a post according to his medical fitness (CEE ONE and below). In 2017, the respondent instituted a petition under Article 226 of the Constitution before the High Court for a mandamus directing compliance with the order of the Tribunal dated 24 March 2017. The High Court by its

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judgement dated 14 November 2017 directed the implementation of the judgement of the Tribunal. The Divisional Officer of the Southern Railway issued a communication on 17 January 2018 negating the claim of the respondent on the ground that the High Court of Punjab and Haryana had held that the LARSGESS Scheme was contrary to the provisions of Articles 14 and 16 of the Constitution. The claim was also rejected on the ground that the respondent could not be appointed for the following reasons:

(i) The father of the respondent had retired on superannuation on 31 May 2016 as Senior Trackman; and that a coordinate bench of the Madras High Court while deciding Writ Petition No. 1040/2017 had declined relief to a similarly placed employee who had continued to work until the date of superannuation; and

(ii) In terms of the Railway Board's letter dated 2 January 2004, the ward could be considered for appointment only in the lowest recruitment grade of the category from which the employee seeks retirement.

15. The respondent instituted a writ petition before the High Court. The High Court by its judgement dated 31 March 2018, came to

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the conclusion that the rejection of the claim was in disregard of the order of the Tribunal dated 24 March 2017. Accordingly, the petition was allowed by directing the Railways to comply with the order dated 24 March 2017, granting appointment to the respondent in any post in CEE ONE and below categories. The judgements of the High court in the two cases have given rise to the present appeals.

16. While considering the merits of the appeal, it becomes necessary to note at the outset that the LARSGESS Scheme introduced by the Railways was considered in the judgement of a Division Bench of the Punjab and Haryana High Court in Kala Singh (supra). The High Court found that the scheme was a device evolved by the Railways to make back door entries in public employment and that it brazenly militated against equality in public employment. The High Court directed the railway authorities to revisit the validity of the scheme before making any appointments bearing in mind the principles of equal opportunity and the elimination of monopoly in public employment. A review petition was dismissed by the High Court. An SLP against the judgment of the Punjab and Haryana High Court was dismissed by this Court on 8 January 2018.

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17. In the meantime, a decision was taken by the Railway Board on 26 September 2018, after seeking legal opinion from the Union Ministry of Law and Justice, to terminate the scheme with effect from 27 October 2017 which was the date on which it was put on hold. The Railway Board directed that no further appointments would be made under the scheme except in those cases where employees had already retired under the scheme before 27 October 2017 (but had not "naturally superannuated") and their wards could not be appointed despite successfully completing the entire process due to the scheme having been held in abeyance.

18. On 28 September 2018, the earlier decision was superseded by directing that in spite of the termination of the scheme, appointments of wards could be made with the approval of the competent authority in the case of staff who had retired before 27 October 2017 under the LARSGESS scheme (but not on attaining the normal age of superannuation) but in whose case appointments of wards was not made due to "various formalities". In Union of India v. Kala Singh (supra) a two judge Bench of this Court in its order dated 6 March 2019, observed that since the scheme stood terminated and was no longer in existence

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"nothing further need be done in the matter". In Narinder Siraswal (supra) which was decided on 26 March 2019, the two judge Bench of this Court permitted the petitioners who claimed the benefit of the scheme which was in existence when the applications were filed to move an appropriate representation. In Manjit (supra), a three judge Bench of this Court declined to entertain a petition under Article 32 on the ground that a conscious decision had been taken by the Union of India to terminate the scheme. The three judge Bench observed that the scheme was fundamentally contrary to the principles of equality of opportunity in public employment under Article 16 of the Constitution. Noting that the decision of the Union Government to discontinue the scheme was justified, the Court observed that all claims based on the scheme must now be closed.

19. Now it is in this backdrop that it is necessary to consider the facts insofar as they pertain to the two cases. Before dealing with the individual facts of the case, it must be determined if the claims of the respondents are covered by the exception clause in the notification issued on 28 September 2018. The notification

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clearly envisages that in spite of the termination of the LARSGESS scheme, appointments under the scheme could only be made if (i) the staff had voluntarily retired (and not naturally superannuated) under the scheme before 27 October 2017; and (ii) appointment of the ward was not made because of 'formalities' which remained. The exception does not cover all pending claims. As a matter of fact, another Division Bench of the Madras High Court7 on 19 January 2017 had held that an employee who received service benefits till the date of superannuation, was not entitled to make a claim under the LARSGESS scheme. It was held:

"Mr. L. Chandrakumar, learned counsel appearing for the petitioner has objected the dismissal of the original application stating that retirement, pending adjudication of the original application, cannot be a ground for rejection of the claim for compassionate ground under the subject scheme. As rightly held by the learned Tribunal, there was no pre-mature retirement on the part of the first petitioner and the first petitioner also did not choose to file any appeal against the proceedings dated

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12.09.2012 as directed by the authorities. The first petitioner, having continued to work and enjoy the services benefits till the date of superannuation cannot be allowed to make use of subject scheme seeking appointment. The scheme, as such, cannot be invoked, in the case on hand as to defeat the purpose, in letter and spirit of the object behind formulating the scheme."

20. From the above judgment, 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 had 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 Writ Petition 1040 of 2016 adjudication before various fora, the delay cannot be attributed to them 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

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January 2004 states that discretion to accept the request for retirement will vest with the administration depending on the suitability of the wards for 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.

8. From the observations made by the Hon'ble Supreme Court in Paragraph No.20 of the aforesaid judgment, it is clear that the benefit of the LARSGESS scheme could not be extended where an employee had attained the age of superannuation in the normal course. In the present case, the petitioner no.1 had attained the age of superannuation in normal course in the year 2016 and, therefore, we are of the view that the petitioners are not entitled to claim any benefit of the aforesaid scheme.

9. We have also gone through the reasoning recorded by the Tribunal while passing impugned order and we are of the view that no error is committed by the Trubunal. Hence, no interference is required in the present petition. Accordingly, this petition is dismissed.

Sd/-

(VIPUL M. PANCHOLI, J.) Sd/-

(HASMUKH D. SUTHAR, J.) Gautam