Central Administrative Tribunal - Jaipur
Shankar Singh vs M/O Railways on 15 September, 2021
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OA No. 291/21/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 291/21/2014
Order reserved on 09.09.2021
DATE OF ORDER: 15.09.2021
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
1. Shankar Singh S/o Shri Arjun Singh aged about
59 years, R/o 1875B Shiv Chouk Pal Bichla,
Ajmer, presently working as Khallasi, Ticket No.
92381, RAC, Senior Section Engineer (AC)
Carriage, Ajmer.
2. Mahendra Singh S/o Shri Shankar Singh aged
about 29 years R/o 1875B Shiv Chouk Pal Bichla,
Ajmer.
....Applicants
Shri V.K. Shukla, counsel for applicants.
VERSUS
1. Union of India through the General Manager, North
Western Railway, Near Jawhar Circle, Jaipur.
2. The Deputy Chief Electric Engineer (Workshop),
North Western Railway, Ajmer.
3. The Assistant Personnel Officer, Office of Deputy
Chief Electric Engineer (Workshop), North Western
Railway, Ajmer.
.... Respondents
Shri Anupam Agarwal, counsel for respondents.
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OA No. 291/21/2014
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"It is therefore prayed that the original application may kindly be accepted. The impugned orders dt. 05.8.2013 & 19.10.2013 may kindly be quashed and set aside. Applicant should be declared eligible as per the LARSGESS scheme. The respondents should be directed to issue orders of retirement of applicant no. 1 and appointment of applicant no. 2 at par with other candidates who had been allowed retirement and appointment as per the examination result declared along with the applicant no. 2. Any other relief which learned tribunal deems fit in the facts and circumstances may kindly be granted."
2. The brief facts of the case, as stated by the applicants, are that applicant No. 1 was initially appointed as Gangman on 03.07.1982 and is at present working on the post of Khallasi in the O/o Senior Section Engineer (AC) Carriage, Ajmer in North Western Railway. Railways vide Board's letter dated 02.01.2004 promulgated a Scheme in the name of safety related retirement scheme (SRRS) to the cadre of Drivers and Gangmen for appointment of wards. Thereafter, Railways vide Board's letter dated 3 OA No. 291/21/2014 11.09.2010, (Annexure A/3), extended the said benefits to safety category of staff with Grade Pay of Rs. 1800/- by reducing qualifying service from 33 years to 20 years within age group of 50-57 years and also modified the nomenclature of the scheme as Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) Scheme with Grade Pay of Rs. 1800/-. As per the Scheme, applicant No. 1 applied for availing benefits of the Scheme by way of retirement and further providing appointment to his ward, applicant No. 2. As applicant No. 1 was eligible, he submitted an application on 05.10.2010, (Annexure A/4), for his retirement and simultaneously for appointment of his son in the prescribed form. Thereafter, respondents vide order dated 26.08.2011, (Annexure A/5), issued list of eligible / ineligible candidates and the name of the applicant No. 1 was found at Sl. No. 1 in the list of eligible candidates. Accordingly, applicant No. 2 was allowed to appear in the exam so as to adjudge his suitability and the said exam was held on 12.01.2013 wherein he was declared as successful vide order dated 21.03.2012, (Annexure A/7). Thus, applicant No. 1 waited for office order to get himself retired and 4 OA No. 291/21/2014 for further direction for applicant No. 2 to join the service. As he did not receive any orders and on the other hand, similarly situated persons were served with orders, applicant No. 1 submitted representation to respondents which was replied vide order dated 05.08.2013, (Annexure A/1), informing that as he has not completed 20 years of requisite service under safety category and thus he is not eligible under the said scheme. Feeling aggrieved, he served a legal notice dated 23.08.2013, which was replied by rejecting the request of the applicant vide order dated 19.10.2013 (Annexure A/2). Therefore, as the action of the respondents in not considering his application under LARSGESS Scheme is arbitrary and illegal, the applicants have filed the present Original Application for redressal of their grievance.
3. After issue of notices, respondents have filed their reply and state that as per RBE No. 131/2010 dated 11.09.2010, (Annexure R/1), Railway Board introduced the safety related retirement scheme covering safety categories with Grade Pay Rs. 1800/- for the employees having the qualifying service of 20 years between the age group from 50-57 years. Bare perusal of the same would disclose that the annexure 5 OA No. 291/21/2014 of it provides for the safety categories which are available under the scheme. Accordingly, applicant No. 1 had requested under LARSGESS Scheme for his retirement and appointment, in lieu thereof, to his son, Shri Mahendra Singh i.e. applicant No. 2. As per office letter dated 19.12.2012 and letter of DRM, Ajmer dated 17.12.2012, applicant No. 2 was permitted to appear in the written exam held on 12.01.2013 and in the said exam, applicant No. 2 was found unsuccessful and he again appeared for written examination on 02.02.2013 wherein he was declared as successful. As per Headquarters letter dated 26.09.2012, (Annexure R/2), after deciding the eligibility of the ward, the eligibility test was conducted. As per letter dated 05.08.2013, the applicant No. 1 was informed that the requisite qualifying service rendered by him is not of safety category and, therefore, he is declared disqualified. He submitted legal notice through his counsel which was replied vide letter dated 19.10.2013 stating that the action has been taken as per Railway Board letter dated 11.03.2013. Thus, applicants have no reason to be aggrieved and, therefore, the rejection of the candidature of the applicants cannot be said to be 6 OA No. 291/21/2014 illegal or unwarranted. Therefore, the Original Application preferred by the applicants is not sustainable in the eyes of law and, hence, deserves to be rejected.
4. The applicants have filed rejoinder denying the contention of the respondents. They further stated that the applicant No. 1 has worked in safety categories only and has completed 20 years in safety category as respondents have not calculated his service bonafidely. As the applicant No. 1 was working on the post of Gangman in Electric Workshop, Ajmer and Senior Section Engineer (RAC) Ajmer, Electrical Khallasi (RAC), Mill Right etc., which is covered in Safety Category and, therefore, respondents have not fairly calculated his services in safety category. Thus, they deserve for the reliefs as prayed by them and the Original Application deserves to be allowed.
5. Heard learned counsels for the parties and perused the material available on record including the judgments cited by the parties.
6. The applicants have reiterated the facts and further stated that the LARSGESS Scheme nowhere provides that the entire service rendered by the employee 7 OA No. 291/21/2014 should be in safety category only. The respondents in illegal manner have not considered the services of the applicant No. 1 from 17.03.1992 to 26.09.1996 and 20.11.2004 to 13.01.2009 as not under safety category holding him ineligible under the scheme. Respondents should be directed to count the services so as to hold him eligible as per the scheme. As applicant was eligible as per order dated 26.08.2011 and 19.12.2012 as his name shows in the list of eligible employees, applicant No. 2 was directed to appear in written examination, thus, as per the principle of estoppel, respondents have no right to reject the candidature of the applicants after declaring him eligible under the Scheme. Respondents cannot retract from their own orders without any justified reasons. Admittedly, applicant No. 1 falls within safety category as per the scheme and an employee has no option to work of his choice and has worked wherever he was directed. The respondents should not have directed the applicant No. 1 to work at a place which did not relate to safety category. Even if prior to 1989, 50% of his services should have been counted and as he has completed 26 years of service, yet respondents have not properly counted his days in 8 OA No. 291/21/2014 safety category and, thus, respondents should be directed to hold him eligible as per the LARSGESS Scheme and the impugned orders be quashed as the same are not sustainable.
7. The respondents besides reiterating their submissions have stated that the applicant No. 1 while working as substitute Gangman, he was granted temporary status on 30.07.1982 and was regularly appointed as Gangman on 20.05.1989 and thereafter in slots he has worked in safety category and not in his entire service career. As his entire service under safety category comes to 16 years, 10 months and 10 days only which is less than 20 years and hence he is not eligible under the LARSGESS Scheme. Therefore, rejection of the candidature cannot be said to be illegal or unwarranted. Also Annexure R/1 clearly reveals the said details and the period of the applicant No. 1 in safety category was again scrutinized as per Railway Board directives wherein it was found that out of several employees who applied 08 employees were ineligible to get the benefits under the scheme as they did not have 20 years of qualifying service in safety category and as the applicant No. 1 was one among them, he was declared ineligible under the Scheme. 9 OA No. 291/21/2014 As no one can claim benefits contrary to the provisions of the Scheme as merely being successful in written examination does not hold him entitled to get the benefits of the scheme. Thus, the grounds on which the Original Application is filed by the applicants is totally misconceived and, therefore, Original Application deserves to be rejected.
8. The only point which requires our consideration is whether case of the applicants can be re-opened in the light of Railway Board's letter dated 27.10.2017 and Hon'ble Apex Court orders dated 06.03.2019, 26.03.2019 and 22.04.2019 and further such orders when the LARSGESS Scheme itself is declared as unconstitutional.
9. The factual matrix of the case is that the applicant No. 1 while working as substitute Gangman, he was granted temporary status on 30.07.1982 and he was regularly appointed as Gangman on 20.05.1989. Thereafter, he worked as Gangman from 21.05.1989 to 16.03.1992. He was then transferred to Electric Workshop Ajmer as Electrical Khallasi on 17.03.1992 and has worked till 26.09.1996. Thereafter, he was transferred and posted as Electrical Khallasi under Sr. 10 OA No. 291/21/2014 Section Engineer (RAC), Ajmer where he worked from 27.09.1996 till 19.11.2004. The period from 20.11.2004 to 13.01.2009, he worked as Electrical Khallasi in Mill Right Section. Thereafter, from 14.01.2009 till the cut-off date i.e. 01.07.2011, he remained posted under Senior Section Engineer (RAC), Ajmer as Khallasi. It is to state that the period from 21.05.1989 to 16.03.1992 which he worked as Gangman as per rules, only 50% of the service subsequent to grant of temporary status is counted towards qualifying service under the scheme. Therefore, 50% of his services as T.S. Gangman from 30.07.1982 to 20.05.1989 i.e. 06 years 10 months and 10 days comes to 03 years, 05 months and 05 days. On counting his service as regular Gangman towards safety category from 21.05.1989 to 16.03.1992 comes to 02 years, 09 months and 25 days. Thus, the total period comes to 08 years, 01 month and 22 days. Subsequent to it, he was transferred to Electric Workshop Ajmer as Electrical Khallasi on 17.03.1992 and has worked till 26.09.1996. This period comes to 04 years, 06 months and 10 days as Electrical Khallasi under Dy. Chief Electrical Engineer (Workshop) Ajmer is not 11 OA No. 291/21/2014 under Safety category and, therefore, the same cannot be counted as qualifying service under the scheme. Thereafter, he was transferred and posted as Electrical Khallasi under Senior Section Engineer (RAC), Ajmer where he worked from 27.09.1996 till 19.11.2004 and this period of 08 years, 01 month and 22 days is counted under safety category and, therefore, the same cannot be counted as qualifying service under the scheme. The period from 20.11.2004 to 13.01.2009, he worked as Electrical Khallasi in Mill Right Section which cannot be included towards qualifying service as it did not pertain to safety category. Thereafter, from 14.01.2009 till the cut-off date i.e. 01.07.2011, he remained posted under Senior Section Engineer (RAC) Ajmer as Khallasi. This period of 02 years, 05 months and 18 days being under safety category had been counted as qualifying service. Thus, his entire service under safety category comes to 16 years, 10 months and 10 days only which is less than 20 years and, hence, he is not eligible under the LARSGESS Scheme.
10. Thus, as what we observe that the applicant No. 1 as has not completed 20 years qualifying service in safety category, yet by mistake he was allowed to 12 OA No. 291/21/2014 apply under the LARSGESS Scheme with his retirement and appointment to his son. As seen, the applicant No. 2 had qualified the written examination, but on verification of records, it came to the notice of the respondents that the applicant No. 1 has not completed 20 years of qualifying service, which is mandatory requirement to be eligible under the LARSGESS Scheme, therefore, as per letter of Railway Board dated 11.03.2013, (Annexure R/3), which requires 20 years qualifying service to be eligible for appointment to ward under LARSGESS Scheme and as the applicant No. 1 does not fulfil the said eligibility, his candidature was rightly rejected as per rules. Thus, the applicant No. 1 was served with letter dated 05.08.2013, (Annexure A/1), which is explanatory order issued in response to his letter dated 17.03.2013. Thereafter, the applicant served a legal notice dated 23.08.2013 which was replied by the respondents vide letter dated 19.10.2013, (Annexure R/2), again explaining the period spent by the applicant No. 1 in safety category out of the total service rendered by him in his service career. Thus, as seen, as the applicant No. 1 does not complete 20 years of qualifying service as required to be eligible 13 OA No. 291/21/2014 under the LARSGESS Scheme, the action of the respondents cannot be said to be arbitrary or illegal and accordingly the relief claimed by the applicants for considering their application under LARSGESS Scheme is unsustainable. Coming to the grounds raised by the applicants, as seen none of the grounds raised by the applicants are sustainable in the eyes of law nor there is violation of any Article of the Constitution of India. Also the judgments cited by the applicants are not applicable to the facts and circumstances of the present case.
11. We have observed that the respondents have clearly followed the rules and, thus, there is neither any question of arbitrariness nor any illegality committed by the respondents. Also no directions can be issued to the respondents in considering the case of the applicants under LARSGESS Scheme as the said scheme is no more in existence since 06.03.2019 and it is clear that their case cannot be re-opened as the same was not covered by the Hon'ble Apex Court's order. Also as per the latest judgment of the Hon'ble Apex Court in Writ Petition (Civil) No. 1407/2019 (Abhishek Kumar Jha & Ors. vs. Union of India & Anr., decided on 28.01.2021), the Hon'ble Apex Court has 14 OA No. 291/21/2014 observed that "once the Scheme itself was withdrawn, no benefit whatsoever including one of consideration of representation could be afforded to any of the persons".
12. Thus, in our considered view, from what has been discussed by us in the above paras, it is clear that the impugned orders dated 05.08.2013, (Annexure A/1), as well as 19.10.2013, (Annexure A/2), passed by the respondents does not deserve any interference as the same are just and proper and the Original Application filed by the applicants being devoid of merits deserves to be dismissed. Accordingly, Original Application is dismissed. No order as to costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/