Central Administrative Tribunal - Mumbai
Sachin Rustam C Rly vs M/O Railways on 28 February, 2024
1 OA No.66/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAT BENCH, MUMBAL
ORIGINAL APPLICATION No.66/2019
: 2 Lcd aadas :
Date this ithe day of February, 2024
CORAM: Ms. Harvinder Kaur Oberoi, Member {])
Mr. Shri Krishna, Member (A) _
Sachin Rustam
Age 28 years, S/o Rustam Totaram,
Working as Trackman, Unit No.8,
(Sr. Section Engineer) Shepaon,
Central Railway. --
R/o: Milindnagar, Shegaon,
Dist. Buldhana -- 444 203. ives Applicant
(By Advocate Shri Vishal Shirke)
Versus
1. Union of India, through the General Manager,
Central Railway, Hear Quarter Office,
Mumbai, CSTM-400 001.
2 The Divisional Railway Manager,
Central Railway, Bhusawal Division
Bhusawal - 425 201.
& Assistant Divisional Engineer (West),
Central Railway Bhusawal Division,
At Akola - 444 001,
4, Senior Section Engineer, (P-way) Central Railway,
Bhusawal Division, Shegaon,
Dist. Buidhana-444 203. . Respondents
( By Advocate Ms. Sangeeta Yadav)
2 G4 No. 66/2019
ORDER
Per: Ms. Harvinder Oberoi, Member {J} The grievance of the applicant in the present OA is with respect to the action of the respondents whereby the respondents have sought to terminate his services. The applicant is a beneficiary of the LARSGESS Scheme (Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff) framed by the Railway Board vide letters dated 11.09.2010 and 29.03.2011. The applicant's father was serving with the respondents in the Safety category. As per the scheme, an. application was submitted by the father seeking Voluntary Retirement and simultaneous appointment of his son, Le. the applicant in the safety category The appointment of the applicant in safety category is against a regularly sanctioned post and after following the due process of selection Le. written test as well as medical test and on fulfilling all the other terms and conditions of the scheme. The applicant was appointed to the post of Trackman vide order dated TLO1 2014 and had been serving till show cause notice dated 27.06.2016 was issued. The said show cause notice was challenged in OA No.531/ 2016 3 Od No. 66/2019 wherein the Tribunal vide its outer dated 22.07.2016 directed the respondents to pass a reasoned and speaking order. The respondents passed the orders on 22/23.08.2016 vide which the services of the applicant are sought to be terminated which is the subject matter of the challenge in the present OA.
4 The Applicants who were five in number had earlier approached this Tribunal by filing OA No.635 {2016 and the Tribunal vide its order dated 15.09.2016 was pleased to direct that no coercive steps shall be taken by the respondents against the applicant with respect to his services. Thereatter, vide an order dated 29.10.2018, this Tribunal directed the applicants to split this case and file four separate applications. Therefore, the present OA has been filed. He has been serving under such protection till date.
3. At the very outset, counsel appearing for the applicant submitted that the Railway Board had initially introduced Safety Related Category Retirement Scheme vide its order dated 02.01.2004 for Drivers and Trackman. By the order dated 10.09.2010, Railway Board extended the said benefit of Safety Related Retirement Scheme covering various category 4 OA No.66/2019 and the said scheme was termed as LARSGESS, The sailient features of the scheme are;
"() Age of employee should be within 50 to 57.
(2) An employee whose wards to be considered for appointment under the scheme should render more than 20 years qualifying service in safety category with GP Rs.1800/-. The cutoff date of reckoning eligibility of the employee and his wards is on 15 January and Ist July as per scheduled, (3) The ward of the employee should be within the age of 18 to 33 and (4) The ward of the employee should passed VOU/Xth Class",
4. Since applicant and his father were fulfilling all the necessary conditions, they had submitted their application duly filled in prescribed format along with all the necessary documents complete in all respect to the respondents on July 2011, but the respondents no.2,3 & 4 ignored to consider him in the ensuing cycle, ie. in the ind Cycle for the year 2011 or the Ist cycle of the year 2012. There was some delay on the part 5 OA No.66/2019 of the respondents in forwarding this application and ulimately the applicant was taken up for consideration in the lind Cycle of the year 2013. The delay, if any, was on the part of the respondents and the applicant could not be blamed for the same. That the applicant was shocked on receiving the show-cause notice and the speaking order dated 22.08.2016 whereby the only reason given to cancel the appointment is date of birth of the applicant's father being 02.06.1955, as such, on the cut off date of the Ist cycle of the LARSGESS Scheme 2013 i.e. 01.01.2013 applicant's father age was 57 years 06 months and 29 days. The applicant's father had become over aged and as such was ineligible under the scheme. However, it was forwarded by the concerned Depot with the remarks as eligible. It was stated that the issue of the overage of the applicant's father was over looked during the said process and hence the applicant was ineligible for appointment, his selection having been done by mistake contrary to the advertisement and the rules. As and when the mistake is detected the respondents are bound to correct the mistake and recall the order of selection.
6 O4 No, 66/2019
5. The Counsel for the applicant has relied upon the Statement/ Chart showing eligibility of the employees and their ward as on 01.07.2011. The chart has been annexed by the applicant with the OA. The same is not denied by respondents.
As per the chart, details of the applicant are as uncer:
Sr.] Name | DOB of | Fat | DOR Age | Bervice | Date of ¥RS Appoint | Show : Impunged i No of Father . i hes') of of {rendered | Applica acceptative | mientaf i. Cause arder « | Applica 8 [Appll | Appli-] by father! -Hon. Ward Notice nt Age i cant. | cant iL oTPS, ag SF jane fay 26 years |Z TYOL/14 [16/1/14 2/06/18 | 22/08/48 Nikam | March fyxs. [June Fears June 1555 1980 S011:
As per applicant, respondents have themselves recognized that application was submitted by the father and son duo on July, 2011. On the said date, they were within age limit and fulfilling all conditions. The stand of respondents is contrary to their own document and cannot be accepted.
6. Counsel appearing on behalf of the respondents submitted that the implementation of the LARSGESS scheme in Bhusawal Division was started from IInd cycle of 2011 Guly 2011) and later LARSGESS scheme was successfully implemented for the First cycle of 2012. It is submitted that if claim of applicant was not considered for the second cycle of ? Od No.662019 2011, then he ought to have submitted the claim for successive cycles of LARSGESS scheme i.e. First cycle of 2012, Second
-ycle of 2012.
A He further submitted that there was no legal bar on the applicant to re-submit his application of retirement under LARSGESS scheme for next successive cycle, if his claim was not considered for the cycle in which he had submitted their application. It is submitted that applicant ought to have given representation against non- consideration of his claim under LARSGESS scheme for respective cycle or ought to have approached to appropriate forum for their grievances. It is submitted that under LARSGESS scheme three employees in Second cycle of 2011, five employees in First Cycle in 2012 and twenty nine employees in Second cycle of 2012 were found suitable from the same Depot Le. Shegaon where applicants fathers were working. It is submitted that applicant's father did not take pain to represent the grievance before appropriate forum for non consideration of their applications in Second cycle of 2011 to Second cycle of 2012 of LARSGESS scheme even though some co- employee of same Depot were found suitable 8 OA No.66/2019 and voluntarily retired under LARSGESS scheme.
8, He submitted that instead of making proper tepresentation or making approach to appropriate forum, the father of the applicant remained silent ti] consideration of the claim in first cycle of 2013. It is submitted that if applicant's father had applied for successive cycles of LARSGESS scheme ie. first cycle of 2012, Second Cycle of 2012 then his claim would have been properly considered under LARSGESS scheme duly taking into consideration eligibility criteria of age and no irregularities would have been arisen.
9. He has submitted that once notices in the OA were issued, an explanation was sought from the officer working at the Depot, who was required to forward the applications in time. The said officer in his letter dated 09.11.2018, has admitted that the applications under the LARSGESS scheme of the employees was received in the month of June & July 2011. However, the same were found incomplete and were verbally returned to the concerned employees for compliance. After receiving completed applications along with complete documents and certificates the same were forwarded for further 9 O4 No. 66/2019 disposal.
16. We have heard the learned counsel for both the parties and have perused the pleadings and documents available on record.
if. That certain issues with respect to the safety related retirement scheme came up before the Hon'ble High Court of Punjab and Haryana in the case of Kala Singh & Ors. Vs. Union of India & Ors., 2016 SCC Online P&H 19387 (CWP Ne.7714/2016) dated 27.04.2016. The Hon'ble High Court vide its order dated 27.04,2016 held as under:
seen We have heard learned counsel for the petitioners and are of the view that the very foundation of their claim, namely, the Safety Related Retirement Scheme, prima facie, does not stand to the test of Articles 14 and 16 of the Constitution of India. This policy is a device evolved by the Railways to make back-door entries in public employment and brazenly milttates against equality in public employment.
5, Since we have not called upon the Railways at this stage, suffice it would be to dismiss this writ petition with a direction to the Rallway Authorities that hitherto before making any appointment under the offending policy, let its validity und sustainability be revisifed keeping mm view the principles of equal opportunity and elimination of monopoly in holding public employment"
I The SLP filed by the Union against this order also 10 OA No.66/2019 came to be disposed of on 08.01.2018 and the respondents were directed to take a conscious decision in the matter within a period of six weeks. Thereafter, on 26.09.2018 and 28.09.2018, the respondent - Railway Board issued letter for termination of LARGESS scheme w.e.f. 27.10.2017. Either in pursuance to this or the Railway Board on a rethink scrapped the LARSGESS scheme, and the same is not operational since then. The present case, however, pertains to the period prior to the decision of the Hon'ble High Court of Punjab & Haryana (supra) at a time when the scheme was very much operational.
As such, scrapping of the scheme subsequently shall not affect substantive rights of the applicant. The applicant relied on the chart i.e, the official document of the respondents which has tic been denied. We noticed that not only the applicant, there were many others whose applications were received on dates June and July 2011, even January and March 2012. All the applications were considered together in the year 2013. Therefore, it cannot be a case of mistake committed in all cases. Moreover, it is settled law that the eligibility will be tested on the date of the receipt of the applications, ay OA No. 68/2019
13. If the candidate becomes overage during the pendency of disposal of the said application, the individual cannot be put to disadvantage. There is no dispute that on the date the applications were made by the father of the applicant, both the father and son were eligible under the scheme, The application was considered by the competent committee of officers appointed by the respondents in the year 2013. The applicant found fit was offered the appointment and he has joined. The decision having been taken by the competent Selection Committee to offer appointment under the scheme cannot be revisited now by the respondents on the pretext that a mistake is committed by the Selection Committee. If sich a proposition is allowed that it will open a Pandora's box as all the appointments made would be subjected to microscopic examination, leading to chaos. Only job of the Selection Committee is to scrutinize the applications in all respects properly. The Committee consisted of senior officers. Thus, it cannot be said that they have committed any mistake.
14. In view of the above, OA deserves to be allowed in terms of prayer clause 8 (a) and 8 (b). The impugned orders 12 OA No.66/2019 are quashed and set-aside. Interim order dated 15% September, 2016 is made absolute, Pending MAs, if any, also stand closed.
15. There shall be no order as to costs.
(Shri Krishhi) | (Harve Gr Rete: Oberoi Member (A) Mamber (7) am.
Pw rat aae &