Mahesh And Ors vs Union Of India And Ors

S.N.Terdal, J

We have heard Mr. Yogesh Sharma, counsel for applicants and Mr. S.M.Arif, counsel for respondents, perused the pleadings and all documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"(i) That the Hon'ble Tribunal may graciously be pleaded to pass an order of quashing of impugned order dated 2.5.2019 (Annex.A/1) with all the consequential benefits, declaring to the effect that same are totally illegal, arbitrary, against the scheme and discriminatory and consequently, pass an order directing the respondents to grant all the consequential benefits to the applicant including continuity of the applicant No. 1 in service deeming no such order has been passed.

(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to release the retirement benefit of the applicant no. 2 immediately with interest @of 18% PA.

(iii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to place on record the copy of service book and leave account of the applicant no. 2.

(iv) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."

The relevant facts of the case are that applicant no. 2 was initially appointed as casual labourer in 1984 under PWI Panipat and subsequently on the basis of his casual service he was appointed as Substitute Khallasi w.e.f. 18.02.1986 and after following the required procedure he was regularized w.e.f 31.12.1996. That the respondents-Railway vide order dated 11.09.2010 extended the Safety Related Retirement Scheme for Drivers and Gangmen of 2004 to the categories of staff wherein the applicant no. 2 was working and the said Liberalized Scheme is popularity know as LARSGESS Scheme. Under the said Scheme, the job of the applicant was covered. The salient features of the said Scheme are that the employees should have put in 20 years of qualifying service and that he should be between 50 to 57 years before seeking retirement under the Scheme. That applicant no. 2 sought voluntary retirement under the said LARSGESS Scheme in 2015 and the competent authority accepted his voluntary retirement w.e.f. 28.04.2016 and as per the said Scheme, the applicant no. 1 was appointed as AC Khallasi as on that date. Subsequently, vide order dated 28.06.2016, the respondents cancelled the order dated 28.06.2016 and thereby withdrew the appointment of applicant no. 1 and cancelled the voluntary retirement of applicant no.2. The said order dated 28.06.2016 was challenged by the applicants in OA 2168/2016, which was disposed of vide order dated 19.03.2019 directing the respondents to reconsider the said order dated 28.06.2016 in the light of the Railway Board's letter dated 26.09.2018 within 90 days. The relevant portion of the order is extracted below:-

"6. Hence, according to their reply quoted above, the applicant is not satisfying qualifying service for consideration under the LARSGESS Scheme. The counsel for the applicants strongly contested the same and the annexures annexed by the respondents. Hence, we direct the respondents to first of all take a decision on the number of years of qualifying service, which the applicant qualifies for and whether it is under the Safety category, and then pass an order with regard to whether his case come within para 5 of the Order of the Hon'ble Delhi High Court in Writ Petition (Civil) No.10279/2017 and finally pass an order with regard to 5 applicability of this Scheme and decide the case of the applicant according and also keep in mind the Railway Board, letter No. E (P&A)I-2015/RT-43 dated 26.09.2018, the contents of which reads as under:-

"Sub: Termination of the LARSGESS Scheme in view of directions of Hon'ble High Court of Punjab and Haryana and the orders of Hon'ble Supreme Court of India in SLP (C) No. 508/2018 dated 08.01.2018.

Ref: Board's letter of even number dated 27.10.2017.

The Hon‟ble Punjab and Haryana High Court in its judgment dated 27.04.16 in CWP No. 7714 of 2016 had held that the Safety Related Retirement Scheme 2004 (later renamed as the Liberalised Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS, 2010) "prima facie does not stand to the test of Articles 14 and 16 of the Constitution of India" It had directed "before making any appointment under the offending policy, let its validity and sustainability be revisited keeping in view the principles of equal opportunity and elimination of monopoly in holding public employment." Thereafter, in its judgment dated 14.07.17 (Review Petition RA-CW-330-2017 in CWP No. 7714 of 2016), the Hon'ble High Court reiterated its earlier direction and stated "such a direction was necessitated keeping in view the mandate of the Constitution Bench in State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1."

1.1 In the Appeal against the judgment of the Hon'ble High Court of Punjab & Haryana, the Hon'ble Supreme Court of India, while disposing of the SLP (C) No. 508/2018 vide its order dt. 8.01.18, declined to interfere with the directions of the High Court.

In compliance with the above directions, Ministry of Railways have revisited the scheme duly obtaining legal opinion and consulted Ministry of Law & Justice. Accordingly, it has been decided to terminate the LARSGESS Scheme w.e.f. 27.10.2017 i.e. the date from which it was put on hold. No further appointments should be made under the Scheme except in cases where employees have already retired under the LARSGESS Scheme before 27.10.17 (but not normally superannuated) and their wards could not be appointed due to the Scheme having been put on hold in terms of Board's letter dated 27.10.17 though they had successfully completed the entire process and were found medically fit. All such appointments should be made with the approval of the competent authority."

The respondents shall take a decision in view of the highlighted portion of the aforesaid scheme. The decision so taken by the respondents will be communicated to the applicant within a period of 90 days from the date of receipt of certified copy of this order."

In compliance with the said order dated 19.03.2019, the respondents passed the impugned order dated 02.05.2019. The impugned order is extracted below:

"Sub:

Regarding implementation of order in OA No.2168/2016 and MA No. 5359/2018 dated 19.3.19 filed by Sh. Mahesh Kumar S/o Sh. Chaman Lal AC/Kh/NDLS.

The Hon'ble CAT/NDLS has issued order on 19.3.2019 as under:-

"The respondents shall take a decision in view of the highlighted portion of the aforesaid scheme. The decision so taken by the respondents will be communicated to the applicant within a period of 90 days from the date of receipt of certified copy of this Order."

In the result and for the foregoing reasons the present OA is disposed off in above terms, there shall be no order as to cost."

In view of Hon'ble CAT's above order it was decided by competent authority that the original employee be reinstated back in service from the date his ward was offered appointment till the date of the superannuation without grant of wages and other consequential benefits (except for qualifying service towards pensionary benefits) on no work no pay basis. Further Sh. Mahesh Chand S/o Sh. Chaman Lal is terminated from service immediately In light of above, the orders of Hon'ble CAT may be considered complied with."

The respondents had cancelled the order dated 28.04.2016 vide order dated 28.06.2016 on the ground that applicant had less than 20 years of qualifying service. The relevant portion of their contention raised in this regard at para 6 of the counter affidavit dated 2.08.2019 is extracted below:

"That at the time of finalizing the retirement process, the leave without Pay was re-calculated with the original leave account and it came to notice that the total leave without pay of above named employee from his date of appointment to 31.12.2014 was 1840 days instead 568 days (which was a mandatory condition of LARSGESS Scheme) and total qualifying service calculate 18 years 4 months and 21 days that is less than 20 years."

The counsel for the applicant vehemently and strenuously contended that the respondents have counted only 50% of his service rendered as Substitute Khallasi instead of counting 100% of the said period of service and in case it is counted 100% he had rendered 28 years of qualifying service. In support of his contention, the counsel for the applicant relied on Rule 32 of the Railway Service Pension Rules, 1993 which is extracted below:-

"32. Counting of service of a substitute Service rendered as substitute shall be counted for pensionary benefits from the date of completion of three months in the case of teachers and four months in other cases of continuous service as substitute followed by absorption in a regular Group C or Group D posts without any break."

Bringing to our notice para 3 of the earlier order dated 19.03.2019 in the earlier round of litigation, the counsel for the applicant contends that on the basis of the above said Rule 32 that he had put in 28 years of qualifying service and that fact is not disputed by the respondents. The relevant portion available at para-3 dated 19.03.2019 of the order passed by this Tribunal in OA No. 2168/2016 is extracted below:-

"3. Counsel further states that the respondents had wrongly calculated applicant no.2 is period of service as less than 20 years of continuous service des pite the fact that the applicant No.2 was appointed on 18.2.1986 as substitute Khallasi and as per the Rule 32 of the Railway Service Pension Rules, 1993, the services rendered as substitute shall be counted for pensionary benefits from the date of completion of three months in the case of teachers and four months in other cases of continuous service as substitute followed by absorption in a regular Group 'C' or Group 'D' posts without any break and therefore, from the date of appointment w.e.f. 18.2.1986 till 31.12.2014, the applicant no.2 had rendered more than 28 years of qualifying service.

The respondents in their counter affidavit have given reply to the said contention by only stating as under:-

"Para 4.7 That the contents of the Para 4.7 of the O.A. need no comments from the answering respondents, being matter of record."

He has further brought to our notice his specific attention in this regard in para 4.7 of this OA which is extracted below:-

"4.7 That it is relevant to mention here that the applicant No.2 was appointed on 18.2.1986 as substitute Khallasi, and as per the rule 32 of the Railway Service Pension Rules, 1993, the service rendered as substitute shall be counted for pensionary benefits from the date of completion of three months in the case of teachers and four months in other cases of continuous service as substitute followed by absorption in a regular Group 'C' or Group 'D' posts without any break and therefore, from the date of appointment w.e.f. 18.2.1986 till 31.12.2014, the applicant No. 2 had rendered more than 28 years of qualifying service, but the respondents totally in arbitrary manner counted half of the substitute service of the applicant, which is totally illegal in the eyes of law."

And the respondents in their counter affidavit filed on 2.08.2019 have not disputed the above facts.

In the facts and circumstances narrated above and in view of Rule 32 of Railway Service Pension Rules, 1993 extracted above and in view of the pleadings in the earlier OA and the present OA extracted above, we are of the view that the impugned order is arbitrary and hence it is set aside.

Accordingly, the OA is allowed. The impugned order dated 2.05.2019 is set aside and the respondents are directed to release the retiral benefits of applicant no. 2 with interest at GPF rate within two months from the date of receipt of a copy of this order. MA pending, if any, stands disposed of. No order as to costs.

CP 292/2019

In view of the above order, CP is closed. But, however, in case the applicant still aggrieved, he may seek remedy as per law.