Rajendra Choudhary vs The State Of Jharkhand
2023 Latest Caselaw 1213 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
            W.P. (S) No. 3231 of 2019
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1.Rajendra Choudhary, aged 64 years, son of Late Ram Awtar Choudhary

2.Rajesh Kumar Choudhary, aged 38 years, son of Rajendra Choudhary, both residents of C/o Laleshwar Sharma, Ram Nagar, Hanuman Mandir, P.O and P.S. Chutia, District Ranchi ... ... Petitioners Versus

1.The State of Jharkhand

2.Union of India through the General Manager, East Central Railway, Hajipur, P.O and P.S. Hajipur, District- Patna (Bihar)

3.Chief Personnel Officer/Senior Division Personnel Officer, East Central Railway, Hajipur, P.O and P.S. Hajipur, District-Patna (Bihar)

4.Divisional Railway Manager, East Central Railway, Danapur Division, P.O and P.S. Danapur, District-Patna (Bihar).

5.Senior Divisional Railway Manager, East Central Railway, Danapur Division, P.O. and P.S. Danapur, District-Patna (Bihar),

6.Divisional Operating Manager, East Central Railway, Danapur Division, P.O. and P.S. Danapur, District-Patna (Bihar) ..... ... ... Respondents

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate Mr. Raunak Sahay, Advocate For the Respondent : Mrs. Alpana Verma, CGC

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Order No. 08/Dated 20th March, 2023

The instant writ petition, under Article 226 of the

Constitution of India, has been filed for quashing and

setting aside order dated 13.03.2019 passed by Central

Administrative Tribunal, Ranchi, Circuit Bench in O.A. No.

051/00165/2019 by which the relief sought for by the

petitioners claiming the benefit under LARSGESS Scheme

has been rejected.

2. The brief facts of the case, as per the pleadings

made in the writ petition, read as under:

The petitioner no. 1, father of petitioner no. 2, was

employed as Porter in Danapur Division, East Central

Railway and retired from service on 31.10.2013.

The Ministry of Railways issued advertisement for

appointment to Grade 'D' Post on 20.10.2010. The

petitioner no. 2, under the Scheme known as 'LARSGESS

Scheme' which was floated by the concerned respondents

on 25.11.2010, made representation before the concerned

authorities for appointment on the said post but his

representation was rejected vide letter dated 09.07.2018

stating therein that a subsequent amendment has been

made vide letter dated 09.12.2010 in LARSGESS Scheme

dated 20.10.2020 whereby Railways has changed the

minimum qualification as Class X from Class VIII.

The petitioner being aggrieved with order dated

09.07.2018 moved before the Central Administrative

Tribunal in O.A. No. 51/000820/2018 which was disposed

of vide order dated 25.10.2018 granting liberty to the

petitioner to submit comprehensive representation before

the authority concerned who shall consider the same and

pass reasoned order within stipulated period of time.

With the liberty aforesaid, the petitioner made

detailed representation dated 01.11.2018 before the

authority concerned. The authority concerned passed

reasoned order dated 27.12.2018 denying the claim of the

petitioner on the ground that the petitioner does not

possess the requisite qualification of Tenth Pass and the

father of the petitioner had completed full tenure of his

service, as such the petitioner cannot be granted

employment as per the amended LARSGESS Scheme.

The petitioner, being aggrieved with the order dated

27.12.2018 preferred another application before the Central

Administrative Tribunal, Ranchi Bench being

O.A./051/00165/2019.

The learned Tribunal after calling upon the

respondent concerned, who came with the plea that very

LARSGESS Scheme has been terminated in view of

judgments of Hon'ble Punjab and Haryana High Court

being affirmed by the Hon'ble Apex Court in S.L.P.(C) No.

508/2018 dated 08.01.2018, disposed of the Original

Application vide order dated 13.03.2019 holding that since

the petitioner does not hold the eligibility criteria of Class

Tenth Pass and the father of the petitioner had retired in

usual course of service, therefore the said benefits cannot

be extended to the petitioner, which is the subject matter of

instant writ petition.

3. Mr. Anil Kumar Sinha, learned senior counsel being

assisted by Mr. Raunak Sahay, learned counsel for the

petitioners has taken the ground that even though the

LARGESS Scheme has been said to be held

invalid/unconstitutional by the Court of law but the benefit

of it has already accrued in favour petitioner on the ground

that the day when such application was filed the LARGESS

Scheme was in existence since the same was not declared

unconstitutional by any Court of law till date.

4. On the other hand, learned counsel for the

respondents-Union of India has submitted that position of

law in this regard is that when any policy

decision/rule/statute is being held to be invalid it will be

said that it was never in existence. Here, in the instant case

since the Scheme itself was held invalid and merely

because application was filed prior to holding the Scheme

to be invalid no right is accrued upon the writ petitioner for

consideration of his case on the basis of said Scheme.

Learned counsel for the respondents on the basis of

aforesaid argument has submitted that the learned

Tribunal since considering the aforesaid aspect of the

matter has dismissed the Original Application, the

impugned order requires no interference by this Court.

5. We having heard learned counsel for the parties and

on appreciation of rival submissions, are of the view that

the fact which is required to be considered is as to whether

the day when the application was filed under LARGESS

Scheme and it was not held invalid by the Court of law, in

that circumstance any right subsists upon the petitioner for

consideration of his case on the basis of said scheme?

6. The law is well settled to the effect that when

validity of any mandate either mandated by the statute or

policy decision if held to be invalid the implied meaning of

the same will be that the said mandate was never in

existence.

Reference in this regard be made to the recent

judgment rendered by Hon'ble Apex Court in State of

Manipur and Others vs. Surjakumar Okram and Others

reported in 2022 SCC OnLine SC 130, wherein the

Hon'ble taking into consideration various judgments on the

issue has laid down as under:

"28. The principles that can be deduced from the law laid down by this Court, as referred to above, are: I.A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law. II.After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes.

III.In declaration of the law, the doctrine of prospective overruling can be applied by this Court to save past transactions under earlier decisions superseded or statutes held unconstitutional.

IV.Relief can be moulded by this Court in exercise of its power under Article 142 of the Constitution, notwithstanding the declaration of a statute as unconstitutional.

29. Therefore, it is clear that there is no question of repeal of a statute which has been declared as unconstitutional by a Court. The very declaration by a Court that a statute is unconstitutional obliterates the statute entirely as though it had never been passed. The consequences of declaration of unconstitutionality of a statute have to be dealt with only by the Court."

7. This Court on the basis of aforesaid proposition is

now proceeding to examine the factual aspect in order to

test the legality and propriety of the impugned order.

The petitioner made application seeking

appointment under LARGESS Scheme when it was in

existence but the said scheme was questioned by the

Railway Board before the High Court of Punjab & Haryana

wherein the said scheme was held invalid/unconstitutional.

The matter travelled to the Hon'ble Apex Court wherein the

order passed by the High Court was affirmed in SLP(C) No.

508 of 2018 vide order dated 08.01.2018.

The Tribunal, after knowing the fact of declaration

of the said Scheme to be unconstitutional by the Court of

law refused to grant relief and dismissed the Original

Application.

Even though the application so made by the

petitioner was lying pending before the authority concerned

there is no statutory obligation upon the respondents to

take decision on the basis of said LARGESS Scheme.

The Tribunal, taking into consideration the fact that

the LARGESS Scheme itself was declared unconstitutional

and further the father of petitioner no. 2 retired from

service, held that the petitioner no. 2 (applicant) does not

have any vested right to claim appointment. Accordingly,

the claim of the petitioner was rejected.

8. This Court, taking into consideration the aforesaid

aspect of the matter particularly the fact that the LARGESS

Scheme itself was declared invalid and further father of

petitioner no. 2 retired from service as such the claim of the

writ petitioner has become infructuous, is of the view that

the order passed by the tribunal requires no interference by

this Court.

9. Accordingly, the instant writ petition stands

dismissed.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

A.F.R/-Alankar/-