AI Structured Summary
Not yet generated for this judgment
Judgment
SUDHI RANJAN MISHRA, MEMBER (J):
The applicant has filed this OA challenging the order of rejection dated 29.03.2021 passed by the Respondent No.2 not to consider his ward for appointment in Railway under LARGESS. Being aggrieved applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:
“a)To quash the speaking order dated 29.3.2021 under Ann.-A/11;
b)And to direct the Respondents to provide employment to the ward of the applicant namely Aswini Kumar Mishra under LARSGESS Scheme,
And pass any other order as this Hon'ble Tribunal deems fit and proper in the interest of justice,
And for which act of your kindness the applicant as in duty bound shall ever pray.”
The case of the applicant is that, the applicant was initially joined in Eastern Railway as Safaiwala on 01.07.1989 and subsequently brought to the cadre of Khalasi. It is submitted that, the Railway Board issued RBE No.4/2004(A/1) known as Safety related retirement scheme for Drivers and Gangman. As per the scheme those who have completed 33 years of qualifying service and within the age of 50 to 57 can seek retirement. On being found suitable for benefit of the scheme one of the ward will be considered for appointment only in the lowest recruitment grade of the respective category for which the employees seek retirement. Thereafter, the Railway Board issued RBE No. 131/2010 dtd. 10.09.2010 (A/2) a scheme known as Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) by which the RBE No.4/2004 amended to certain extent. As per the scheme those who have completed 20 years of qualifying service for pension and within the age of 50-57 are eligible to get benefit of the said scheme. The Scheme covers certain categories of employees in which the post of the applicant is coming. The Railway Board further issued RBE No.166/2011(A/3) with a clarification regarding the issue of minimum educational qualification of candidates belonging to the categories of compassionate appointment, land looser, accident victims, LARSGESS and substitute in line with recommendation of 6th Pay Commission as accepted by the Govt. of India. The Ministry of Railway (Railway Board) decided that in exceptional circumstances, where ever grant of appointment is considered to any of those persons in the categories mentioned above, not in possession of prescribed educational qualifications for the post, such persons will be recruited/ engaged as trainees who will be given the regular Pay Bands and Grade Pay only on acquiring the minimum educational qualification prescribed under the recruitment rules.
It is further submitted that, the Railway Board issued further clarification vide RBE No.4/2012 dtd.03.01.2012(A/4) which includes dispensation of Physical Efficiency Test (PET) and relaxation of minimum educational qualification norms for recruitment under the LARSGESS. The Railway Board decided to relax the prescribed minimum educational qualifications for recruitment under the scheme in line with the recommendation of 6th CPC and accordingly instruction have already been issued vide RBE No.E(NG) 11/2011/RR 1/11 dtd. 09.12.2011 in this regard, giving (1S) scale to non-matriculate and non ITIs. It is submitted that, the Respondent No.3 vide Notificationhas asked for submission of applications from the eligible candidates for consideration of their cases under LARSGESS for 2nd slot cycle 2013 (1.7.2013). As the applicant was fulfilling all the criteria, submitted application dated 13.08.2013 (A/5) for consideration of his case under LARSGESS and appointment of his son namely Aswini Kumar Mishra. Thereafter, necessary process was carried on by the Department, but no communication was made for years together. Finally, on 8.5.2017 the applicant submitted an application to Respondent No.2 to consider his case under LARSGESS for 2nd cycle 2013. Thereafter, Respondent No.2 vide letter dated 19.7.2017(A/6) has disposed off the representation and rejected the request on the ground of non-completion of 20 years of service in safetycategory in terms of Railway Board letter dated 11.09.2010 (RBE No.131/2010). Further, the Respondent No 2 disclosed that the benefit of RBE No.131 of 2014 can not be extended as because the same is applicable from the date of its issue. It is submitted that, the applicant being not satisfied with the decision dated 26.09.2017 (A/7) submitted a legal notice through his counsel to Respondent No.3 to reconsider his grievance. The Respondent No.3 vide letter dated 09.07.2018(A/8) was pleased to reject the same by reiterating the ground taken on letter dated 26.09 2017.
It is submitted that, the applicant being aggrieved with the decision dtd09.07.2018 had approached the CAT, Kolkata Bench by filing Original Application No. 93 of 2020in the year 2019. The CAT Kolkaata Bench vide order dated 03.02.2021(A/9) was pleased to disposed of the Original Application with liberty to the applicant to prefer a comprehensive representation to the Respondent authorities within a period of 4 weeks and further directed the competent authority shall consider the same in accordance with the law and pass appropriate order within a period of 3 months. It is submitted that, in compliance to the order dated 03.02.2021, the applicant has submitted an exhaustive representation dated 20.03.2020 to Respondent No.2 ventilating his grievance and prayed to reconsider his case. The Respondent No 3 vide speaking order dated 29.03.2021 has disposed of the representation and rejected the claim by reiterating the earlier grounds taken in letter dated 16.05.2017, 19.07.2017 and 26.09.2017. Thereafter, the Ministry of Railways (Railway Board) vide letter dtd. 12.07.2019 addressed to all General Manager, all Indian Railways communicated its decision regarding reconsideration of cases of the individuals whose representations has been rejected in view of the order of Hon'ble Apex Court passed in SLP(C) No.508/ 2008. The Railway Board in letter dtd 12.07.2019 has quoted the order ofHon'ble Apex Court passed in W. P.(C) No 219/ 2019 & 448/2019 and instructed the competent authorities to examine and dispose of each individual representations based on the factual matrix of the case. Being aggrieved with the order dated 29.03.2021, without finding any other alternative remedy the applicant constrained to approach this Bench by filing this Original Application with the prayers as made above.
Respondents have filed their counter wherein they have stated that the Safety Related Retirement Scheme (in short "SRRS") was initially introduced only for Drivers &Gangmen. The eligibility conditions for seeking voluntary retirement under the aforesaid scheme for both these categories were 33 years of qualifying service and age bracket of 55-57 years vide Rly. Bd's Letter dtd.02.01.2004 (RBE No. 04/2004). Under the said scheme, the request for retirement will be on a voluntary basis and there will be no element of compulsion on the part of the administration. The ward will be considered for appointment only in the lowest recruitment grade of the respective category from which, the employee seeks retirement, depending upon his/her eligibility and suitability. It is submitted that, subsequently in the year of 2010, the SRRS was re-named as Liberalized Active Retirement Scheme for Guaranteed Employment to Safety staff (in short "LARSGESS") and its benefit was extended to specified Safety Categories in Grade Pay of Rs.1800. At this point of time, the eligibility conditions were revised from the existing 33 years qualifying service to 20 years and age bracket from 55-57 years to 50-57 years vides Railway Board's Letter dtd. 11.09.2010 (RBE No. 131/2010). However, the conditions forqualifying service (i.e. 33 years) and age group (i.e. 55-57 years) for Drivers was kept unchanged. It is submitted that, in terms of the above directions of Railway Board, Eastern Railway / Howrah Division had issued notification vide Letter dated 06.08.2013. In the said notification, various letters of Railway Board were quoted as authority/references and it was indicated therein that, the details of the schemes, eligibility criteria, category of staff governed by the scheme etc. have been circulated in the said Board's reference. Further, details in respect of eligibility categories, eligibility criteria, age group, qualifying service, cut-off date for submission and withdrawal of application etc. were also mentioned in detail in the said notification.
It is contended by the respondents that, Sri Aviram Mishra(Applicant), SCW/SYAE/LLH/E.Rly., was working as an Helper under SCW/SYAE/LLH/E.Rly in Howrah Division had submitted his application dated 13.08.2013 for seeking Voluntary Retirement under LARSGESS Scheme for appointment of his ward Aswinee Kumar Mishra against the Notification No. E.Ruling/LARSGESS/HWH, 2nd Cycle/2013, dated 06.08.2013 where cut off date was mentioned as 01/07/2013 i.e. eligibility of the applicant as on 01.07.2013 was to be adjudged. It is submitted that as per the records, applicant's date of birth is 27.06.1957 and the age is 56 years 05 days as on the cut-off date i.e. 01/07/2013. It is seen that, his date of appointments on 01/02/1983 as Wash Boy Canteen, Safaiwala on 22/06/1989 and KH. Helper under SCW/SYAE/LLH /E.Rly on 28/11/1995. His length of service has been counted from 28/11/1995 to 01/07/2013 as per the prevailing rule. Applicant's qualifying service in Specified Safety Category is 17 Years 07 Months and 03 days, whereas required qualifying service is 20 Years as per the rule. Accordingly, applicant was not eligible to in that year 2nd Cycle-2013. It is further submitted that, applicant was retired on 30.06.2017 as per the age limit for Railway service. In this matter four (04) replies dated 16/05/2017, 19/07/2017, 26/09/2017 and 09/07/2018 were sent to the applicant's address. It is submitted that, against the aforesaid matter, the applicant had moved an O.A No. 93 of 2020 before this Bench by challenging the above orders and this Bench disposed of the Original Application No. 93 of 2020 vide order dtd. 03/02/2021 with the following direction. The relevant portion of the above order is quoted below:
“Therefore, the OA is disposed of with liberty to the applicant to prefer a comprehensive representation to the respondent authorities within a period of 4 weeks from the date of receipt of a copy of this order. In the event such representation is preferred by the applicant, the competent respondent authority shall consider the same in accordance with law and pass appropriate orders within a period of 3 months and communicate the decision thereof to the applicant thereafter.”
It is submitted by the respondents that, in compliance with the order of this Bench dated 03.02.2021 passed in O.A. No. 93 of 2020, Respondent No.3 vide Speaking Order dated 29/03/2021 passed the following order. The relevant portion of the above order is quoted below:
“ In compliance with the order of Hon'ble CAT/CAL dated 03/02/2021 in O.A. No. 350/93 of 2020, Aviram Mishra -Vrs.-Union of India &Ors 1, being the respondent No.03, have gone through the OA No. 93 of 2020 filed by the applicant, other relevant records of the office along with rules on the subject and observe as under:
Aviram Mishra, Helper under SCW/SYAE/LLH/E. Rly, the applicant of the subject Original Application, was working as Helper under SCW/SYAE/ALLH/E.Rly in Howrah Division submitted his application dated 13/08/2013 for seeking Voluntary Retirement under LARSGESS Scheme for appointment of his ward Aswinee Kumar Mishra against the Notificalion No. E/Ruling/LARSGESS/HWH, 2nd Cycle 2013, dated 06.08.2013 where cut off date was mentioned as 01/07/2013 i.e. eligibility of the applicant as on 01/07/2013 was to be adjudged. As per record, his date of birth is 27/6/1957 and age is 56 years 05 days on cut off date 01.07 2013. Il is seen that his date of appointments on 01.02.1983 as wash boy canteen, Safaiwala on 22/6/1989 and Kh.Helper under SCW/SYAE/LLH on 28/11/1995 His length of service has been counted from 28/11/1995 to 01/07/2013 as per rule His qualifying service in Specified Safety Category is 17 years 7 months 03 days but requirement is 20 years as per rule. He was not eligible to in that year 2nd Cycle -2013 and consideration of his appeal at material time does not arise. Aviram Mishra Helper under SCW/SYAE/LLH/E Rly.was retired on 30.06.2017 as per age limit for Railway service. In this matter three (03) replies dated - 16/05/2017, 19/07/2017 and 26/09/2017 were sent to the applicant's address.
Disposal of LARSGESS cases in light of Hon'ble Supreme Court's judgements dated 28/01/2021 in WP(C) No. 1407/2019 and dated 29/01/2021 in WP(C) No. 78/2021 wherein the petitioners have prayed to direct the respondents to offer appointment to them under LARSGESS Scheme. Hon'ble Supreme Court in judgements dated 28/01/2021 & 29/01/2021 has observed as under
W.P.(C) No. 1407/2019
“…….that once the Scheme itself was withdrawan, no benefit whatsoever including one of consideration of representation could be afforded to any of the persons."
W.P.(C) No. 78/2019
“…….This would be fundamentally at odds with Article 16 of the Constitution. The Union Government has with justification discontinued the scheme. The petitioner can claim neither a vested right nor a legitimate expectation under such a Scheme. All claims based on the Scheme must now be closed."
Therefore, the request of Aviram Mishra le the applicant of the present OA cannot beconsidered.
Thus the order of Hon'ble CAT/CAL dated- 03/02/2021 in respect of OA No. 350/93 of 2020 is disposed of.”
In view of the above, respondents have prayed for dismissal of the OA being devoid of any merit and based on misconceptions both on the law and facts.
Applicant has filed rejoinder reiterating the points raised in the O.A.
Heard Ld. Counsel for both the parties and perused the records.
Indisputably, the respondents- Railways had taken a conscious decision on 06.03.2019 to terminate the LARSGESS Scheme and to decide that no further appointment should be made under the scheme. Hon'ble Supreme Court of India in the case of "Abhishek Kumar Jha&Ors. v. Union of India &Ors. (Writ Petition (c) No.1407/2019)" while dealing with the issue regarding extension of benefit under the LARSGESS Scheme was pleased to observe that once this Court has refused to accept similar petition filed under Article 32 of the Constitution of India on the premises that once the scheme itself was withdrawn, no benefit whatsoever including one of consideration of representation could be offered to any of the persons claiming thereunder.
Similarly, Hon'ble Supreme Court of India in the case of "Manjeet and Ors. v. Union of India &Anr. (Writ Petition (C) No.78/2021)" while rejecting the request for extending the benefit of the LARSGESS Scheme to the petitioner was pleased to observe as under:-
"Thus a conscious decision has been taken by the Union of India to terminate the Scheme. This has been noticed in the order of this Court dated 06th March, 2019, which has been extracted above. While taking this decision on 05th March 2019, the Union of India had stated that where wards had completed all formalities prior to 27th October 2017 (the date of termination of the scheme) and were found fit, since the matter was pending consideration before this Court, further instructions would be issued in accordance with the directions of this Court. Noticing the above decision, this Court, in its order dated 06th March, 2019, specifically observed that since the scheme stands terminated and is no longer in existence, nothing further need be done in the matter. The scheme provided for an avenue of a back door entry into the services of the railways. This would be fundamentally at odds with Article 16 of the Constitution. The union government has with justification discontinued the scheme. The petitioners can claim neither a vested right nor a legitimate expectations under such a scheme. All claims based on the scheme must now be closed.
In view of the above factual background, we are not inclined to entertain the petition under Article 32. The grant to reliefs to the petitioner would only enable them to seek a back door entry contrary to the orders of this Court. The Union of India has correctly terminated the Scheme and that decision continues to stand."
10 Since the said scheme has already been terminated and the same has been uphold by Hon’ble Apex Court, we do not find any merit in the OA and accordingly the same is dismissed. Pending MA’s, if any, stands disposed of. No costs.