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Scheme Providing Backdoor Entry Into Service Violates Article 16 : Supreme Court On Railways LARGESS Scheme

Shruti Kakkar
31 Jan 2022 5:18 AM GMT
Scheme Providing Backdoor Entry Into Service Violates Article 16 : Supreme Court On Railways LARGESS Scheme
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The Supreme Court on Tuesday reiterated that the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff notified by the Railways ("LARSGESS Scheme") provides an avenue for backdoor entry into service and is contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment.The bench of Justices DY Chandrachud and AS Bopanna...

The Supreme Court on Tuesday reiterated that the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff notified by the Railways ("LARSGESS Scheme") provides an avenue for backdoor entry into service and is contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment.

The bench of Justices DY Chandrachud and AS Bopanna was considering civil appeals assailing Madras High Court's judgements dated March 21, 2018 and September 3, 2019.

In the judgment dated March 21, 2018, the High Court had directed the Railways to consider granting appointment to the ward of the worker who was working as Senior Trolley man in any post in CEE ONE and below categories.

In the judgment dated September 3, 2019 the High Court had held that though the LARSGESS scheme was terminated, since ward's father superannuated on 1 January 2015 prior to 27 January 2017, the benefit of the scheme could be extended to him in terms of the notification dated 28 September 2018.

While allowing the appeal(s) and setting aside the impugned judgment(s) the bench in The Chief Personnel Officer & Ors. v. A Nishanth George and The General Manager Vs. P. Balamurugan observed,

"We have addressed in detail the history of the LARSGESS scheme and the doubt expressed on its validity by the Division Bench of the Punjab and Haryana High Court in Kala Singh (supra) which eventually led to the decision of the Union government to terminate the scheme. While noticing the above backdrop, the three judge Bench of this Court in Manjit (supra) clearly noted that the Scheme provided an avenue for backdoor entry into service and was contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment. In this backdrop, the impugned judgment of the High Court of Madras issuing a mandamus for the appointment of the respondent cannot be sustained."

Factual Background Of Chief Personnel Officer & Ors. v. A Nishanth George

Respondent's father who was working as Senior Trolley man in Southern Railways opted for voluntary retirement under LARSGESS scheme on September 29, 2011 and sought respondent's appointment. Although the respondent qualified the written examination, he was found medically unfit for the appointment to the post of Trackman under the scheme since he was not fit in class CEE ONE and below.

Aggrieved, the respondent moved the Madras Bench of CAT praying for his appointment under the scheme. While disposing of the case on April 1, 2016 the Tribunal directed the Railways to consider his case for appointment to any post of CEE ONE and below.

Since respondent's claim was once again rejected on May 31, 2016, he once again moved an OA before the Tribunal. On March 24, 2017 the Tribunal directed the Railways to consider the respondent in a post according to his medical fitness (CEE ONE and below).

In 2017, the respondent approached the High Court seeking issuance of directions for complying with the Tribunal's order dated March 24, 2017 which was granted by the High Court.

On January 17, 2018 the Divisional Officer of the Southern Railway issued a communication negating respondent's 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.

On March 21, 2018 the High Court while dealing with respondent's plea concluded that rejection of the claim was in disregard of the order of the Tribunal dated 24 March 2017. While allowing the petition, the High Court directed 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.

Factual Background Of The General Manager Vs. P. Balamurugan

Respondent's father who was a Senior Trackman in Southern Railway had submitted an application for voluntary retirement under the LARSGESS Scheme on December 2, 2010. Pursuant to submitting two applications for retirement, the respondent's father retired on December 31, 2014.

In 2017, the respondent filed an OA seeking issuance of direction to provide employment under the LARSGESS scheme which was dismissed on December 11, 2017.

The High Court on September 3, 2019 observed that the date of birth of respondent's father should be reckoned as 16 December 1954 and that in view of the nature of the employment of the respondent's father, he should not be made to suffer for an inadvertent mistake. High Court also held that though the scheme was terminated, since the respondent's father superannuated on 1 January 2015 prior to 27 January 2017, the benefit of the scheme could be extended to him in terms of the notification dated 28 September 2018.

Supreme Court's Analysis

The bench in the judgment authored by Justice DY Chandrachud firstly determined as to whether the claim of the respondents was covered by the exception clause in the notification issued on 28 September 2018.

On 28 September 2018, Railways notified another notification which said 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.

In this regards, the bench after considering that the respondent's father had superannuated on May 31, 2016 and December 31, 2014 opined that respondent's contention that delay could not be attributed since the claims were pending adjudication before various fora was erroneous.

The bench also referred to the Top Court's judgment in Manjit v. Union of India LL 2021 SC 57 wherein the three judge bench while declining to entertain a petition seeking a mandamus directing the Union of India and the Railways to appoint the petitioners in terms of the LARSGESS Scheme had 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."

It thus said, "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 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."

Reliance was also made on the Punjab and Haryana High Court's judgement in Kala Singh v. Union of India on April 27, 2016 in which the Court had scrutinized the LARGESS Scheme introduced. In this, the High Court while dismissing the writ petition had 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".

History Of LARSGESS Scheme

The Railway Board on January 2, 2004 had introduced a scheme referred to as Safety Related Retirement Scheme for the categories of Gangmen and Drivers since the working of Drivers and Gangmen was perceived to have a crucial bearing on train operations and track maintenance. Considering that the reflexes of the staff recruited to these categories and their physical fitness might deteriorate with advancing age, causing a safety hazard, the scheme incorporated various provisions.

The board on September 11, 2020 notified for extending the benefit of the scheme to other safety categories of staff with grade pay of Rs 1800/- per month and even the period of qualifying service was reduced from 33 years to 20 years and the eligible age group from 55-57 to 50-57 years for seeking retirement under the scheme. The name of the Safety Related Retirement Scheme was modified to be read as Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff ("LARSGESS Scheme").

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

The Punjab and Haryana High Court in Kala Singh v. Union of India on April 27, 2016 scrutinized the LARGESS Scheme introduced in which the High Court while 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".

Pursuant to the High Court's judgment, a review application was filed by the Railways which was dismissed by the High Court. The Railways even approached the Top Court by way of SLP but the same was disposed while observing that no interference is required since the direction was to only revisit the scheme.

Railways on September 26, 2018 notified its decision to terminate the scheme and said that no further appointments should be made under the Scheme except in cases where employees have already retired under the LARSGESS Scheme before October 27, 2017 (but not normally superannuated). It was also notified that irrespective of their wards completing the entire process and being medically fit, their wards could not be appointed due to the Scheme having been put on hold.

On 28 September 2018, Railways notified another notification which said that the appointment of the wards/candidates of the staff who had already retired under the LARSGESS scheme before October 27, 2017 could be made from the approval of competent authority.


Headnotes

Constitution of India, 1950 ; Article 16 - Railways LARGESS Scheme - Scheme provided an avenue for backdoor entry into service and was contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment. [Referred to Manjit v. Union of India 2021 SCC OnLine SC 49 ] (Para 25)

Appeal against High Court judgment which held that though the LARGESS Scheme was terminated, since the respondent's father superannuated on 1 January 2015 prior to 27 January 2017, the benefit of the scheme could be extended to him in terms of the notification dated 28 September 2018- Allowed - The impugned judgment issuing a mandamus for the appointment of the respondent cannot be sustained.

Case Title: The Chief Personnel Officer & Ors. v. A Nishanth George| Civil Appeal No. 294 of 2022 and The General Manager Vs. P. Balamurugan| Civil Appeal No. 295 of 2022

Coram: Justices DY Chandrachud and AS Bopanna

Citation : 2022 LiveLaw (SC) 277

Click here to read/download the judgment





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