Central Administrative Tribunal - Delhi
Ashish Dhiman vs Northern Railway on 24 September, 2024
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C-5/Item-50 OA-2597/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A./2597/2023
Order reserved on:06.09.2024
Order pronounced on:24.09.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Ashish Dhiman, Aged 28 years
S/o Late Sh. Suresh Kumar
Helper Khallasi (Coaching)
Northern Railway, Hazrat Nizammudin
R/o House No.341, Man Colony, Jyoti Nagar,
Karnal, Haryana-132001 ...Applicant
(Through Shri Yogesh Sharma, Advocate)
Versus
1. Union of India through the General Manager,
Northern Railway, Baroda House,
New Delhi-01
2. The Divisional Railway Manager,
Northern Railway, Delhi Division
State Entry Road, New Delhi-06
3. The Senior Divisional Personnel Officer,
Northern Railway, Delhi Division
State Entry Road, New Delhi-06
4. The Assistant Personnel Officer,
Northern Railway, Delhi Division
State Entry Road, New Delhi-06
5. The Senior Section Engineer/Electric
Electric Coaching Depot
Northern Railway, Hazrat Nizammudin-13 ... Respondents
(Through Ms. Gauraan, Advocate)
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C-5/Item-50 OA-2597/2023
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) The factual matrix of this case is as follows:
1.1 The father of the applicant late Shri Suresh Kumar was initially appointed on casual basis in 1987. Based on the casual service, he was appointed as Khallasi against a regular sanctioned post on substitute basis with effect from 26.04.1988. This appointment was given to the father of the applicant after conducting medical examination, verification etc. The father of the applicant was regularized on the same post of Khallasi with effect from 31.12.1996. The father of the applicant submitted an application seeking voluntary retirement under the LARSGESS Scheme in the year 2014-
15. The competent authority accepted his request under the aforementioned Scheme with effect from 2.06.2016 and as per the Scheme, the applicant was appointed as a Helper Khallasi with effect from 2.06.2016 vide order dated
2.06.2016. At the time of finalization of settlement case of Shri Suresh Kumar, late father of the applicant, his leave account was rechecked and it is alleged by the respondents that there was an error in calculation of "leave without pay". Though earlier the Welfare Inspector had submitted leave statement showing 670 days as "leave without pay", on 3 C-5/Item-50 OA-2597/2023 rechecking it was found that he had availed 1056 days "leave without pay". The respondents accordingly found that the qualifying service of late Shri Suresh Kumar was only 19 years, 5 months and 6 days, which was less than 20 years. Accordingly, the respondents found that Shri Suresh Kumar was not eligible for VRS under the LARSGESS Scheme because it required 20 years of qualifying service. Consequently, the respondents vide letter dated 11.11.2016 (Annexure R-4) withdrew the appointment of the present applicant under the LARSGESS Scheme and directed the Incharge, ADEE, HNZM to take Shri Suresh Kumar, father of the applicant back in service with immediate effect. Late Shri Suresh Kumar along with the present applicant, aggrieved by letter dated 22.11.2016, filed OA No.4293/2016 before this Tribunal. The Tribunal vide order dated 23.12.2016 dismissed the OA as follows:
"MA No.3831/2016
This MA filed for joining together is allowed.OA No.4293/2016
Heard the learned counsel for the applicants. It is submitted that the respondents considered the request of the applicants under the LARSGES Scheme and appointed the 1st Applicant as Khalasi Helper. However, all of a sudden, vide Annexure A/1 Show Cause Notice dated 09.09.2016, the respondents stated that applicant was not actually qualified as per the terms of the LARSGES Scheme, and called for explanation why the appointment of the 1st Applicant shall not be cancelled. The applicant submitted his explanation to the said Show Cause Notice on 21.12.2016
2. The applicant is questioning the said action on various grounds by way of this OA.4
C-5/Item-50 OA-2597/2023
3. We have disposed of number of OAs pertaining to the LARSGES Scheme today.
4. In the circumstances and for parity of reasons, this OA is disposed of in terms of the orders passed in OA No.2643/2013 and batch, dated 23.12.2016. For the sake of convenience, the Order in OA No.2643/2013 and batch, is extracted below:
"In this batch of OAs, the applicants are the employees of the Railways or their wards and seeking granting of certain benefits under the Liberalised Active Retirement Scheme for Guaranteed Employment for Safety Staff (in short, LARSGES Scheme). The said Scheme was formulated by the respondents in the year 2004 and modified in the year 2010 enables 2nd category job of Railway employees to seek Voluntary Retirement after they reach the age group of 55-56 years (as amended from time to time) or on completion of qualifying service of 33 years (as amended from time to time) and they can seek appointment of their wards in their place.
2. The Constitutional validity of the LARSGES Scheme came up before various Benches of this Tribunal, including the Principal Bench at New Delhi, and the Scheme was quashed by the Principal Bench at New Delhi by holding that the same is unconstitutional. However, the said decision of the Principal Bench at New Delhi was set aside and remanded back, by the jurisdictional High Court, on technical grounds. Similar is the situation with certain other bench decisions on the validity of the Scheme.
3. On a reference, a Full Bench of this Tribunal in OA No.1540/2013, dated 07.08.2015 in R. Krishna Rao v. Union of India & Others, upheld the legality and validity of the LARSGES Scheme.
4. When the aforesaid batch of OAs were taken up for hearing, it is brought to our notice that in CWP No.7714/2016, the Hon'ble High Court of Punjab & Haryana at Chandigarh, by its Judgement dated 27.04.2016, in Kala Singh and Others v. Union of India & Others, by holding that the LARSGES Scheme does not stand to the test of Articles 14 and 16 of the Constitution of India and that the policy is a device evolved by the Railways to make back-door entries in public employment and brazenly militates against equality in public employment, directed the Railway authorities that hitherto before making any appointment under the offending policy, its validity and sustainability be re-visited keeping in view the principles of equal opportunity and elimination of monopoly in holding public employment.
5. It is also brought to our notice that a reference was made to Railway Board seeking guidelines in reference to the aforesaid orders of the Hon'ble High Court of Punjab and 5 C-5/Item-50 OA-2597/2023 Haryana wherein the LARSGES Scheme was held to be violative of Articles 14 and 16 of the Constitution of India.
6. Since the learned counsel appearing for both sides, could not place any other Order of the Hon'ble High Court of Delhi, which is the jurisdictional High Court or any other High Court or Supreme Court, contrary to the above decision of the Hon'ble High Court of Punjab & Haryana, we are bound by the said decision.
7. In the circumstances, and for the aforesaid reasons, all the OAs are disposed of in terms of the Order dated 27.04.2016 in CWP No.7714/2016 of the Hon'ble High Court of Punjab & Haryana in Kala Singh & Others v. Union of India & Others (supra). MAs, if any, pending are also disposed of accordingly. No costs."
5. In view of disposal of the batch of the OAs pertaining to the LARSGES Scheme, the present OA is also disposed of in terms of the said orders. However, the respondents shall not pass any adverse orders till they take a final decision as per the aforesaid orders. No costs.
Issue Dasti."
1.2 Thereafter, Shri Suresh Kumar, the father of the applicant filed OA No.4459/2018 before this Tribunal seeking relief to pass an order directing the respondents to release the retirement benefits of the employee immediately including service pension, gratuity, leave encashment, group insurance, GPF etc. with interest. Simultaneously, Shri Ashish Dhiman, the present applicant also filed OA No.99/2020 seeking relief to pass order for quashing the impugned orders dated 19.12.2019, 11.11.2016 and 9.09.2016 and also seeking direction to the respondents to restore the appointment of the applicant immediately with all consequential benefits. These two OAs were combined 6 C-5/Item-50 OA-2597/2023 together and vide order dated 9.09.2020, this Tribunal passed the following order:
"12. We therefore, dispose of the OAs
(i) directing the respondents -
(a) To forthwith release the retirement benefits payable to the applicant in O.A.No.4459/2018 on the basis of his VRS, within four weeks, pending passing fresh orders in pursuance of the show cause notice dated 09.09.2016.
(b) In case his explanation to the Show Cause Notice is not accepted and the order of voluntary retirement is withdrawn, the differential amount between the one already paid and the one payable on retirement on superannuation shall be released.
ii) Setting aside the order dated 22.11.2016 and directing the respondents to pass fresh orders, taking into account his explanation dated 21.12.2016, submitted to the Show Cause Notice dated 09.09.2016, within six weeks from the date of receipt of a certified copy of this order; and
(iii) Directing that the status of the applicant in OA.99/2020, under the LARSGESS scheme shall depend upon the nature of orders which the respondents may pass, as indicated above.
There shall be no order as to costs."
1.3 In compliance of the order dated 9.09.2020 in OA No.99/2020 along with OA No.4459/2018, the respondents vide office order dated 13.02.2021 (Annexure R-7) treated the employee late Shri Suresh Kumar as superannuated on his normal retirement and settled his retirement dues to the tune of Rs.6,55,771/-. By the aforementioned order dated 13.02.2021, the respondents also disposed of the Show Cause Notice dated 9.09.2016, again reiterating that Shri Suresh Kumar did not complete the qualifying service of 20 7 C-5/Item-50 OA-2597/2023 years at the relevant time and thus his voluntary retirement under LARSGESS Scheme was an administrative error. 1.4 The applicant again filed OA No.1023/2021 challenging the order dated 15.02.2021 (issued on 13.02.2021) and Show Cause Notice dated 9.09.2016. This Tribunal disposed of the OA vide order dated 4.05.2023 as follows:
"13. In the present case, the authorities have themselves admitted their lapse. Moreover, I have no hesitation in holding that the impugned order is very terse and cryptic, it does not meet any of the requirements of a reasoned and speaking order. Therefore, I cannot sustain the same.
14. Accordingly, in the light of the discussion detailed above, the present OA is allowed to the extent that the impugned order dated 15.02.2021 is quashed and set aside. While doing so the matter is remanded back to the Competent Authority amongst the respondents to decide the matter afresh giving due consideration to the representation of the applicant/applicant's father pursuant to show cause notice dated 09.09.2016 and pass an order which is reasoned and appropriate. While passing such order, the Competent Authority amongst the respondents shall specifically deal with observation of the Hon'ble High Court in its judgment dated 25.01.2019 in WP (C) 10279/2017 and determine whether the observation of the Hon'ble High Court in the said judgment would be applicable in the facts and circumstances of the instant matter in terms of the contents of representation of the applicant. The direction contained herein shall be complied within a period of 12 weeks from the date of receipt of a certified copy of this order."
1.5 The respondents vide their order dated 11.07.2023 passed a detailed speaking order in compliance with the order dated 4.05.2023 in the aforementioned OA (OA No.1023/2021). Again the respondents reiterated that the applicant's father was not entitled to voluntary retirement under the LARSGESS Scheme and hence the applicant's appointment under the said Scheme was not legal and they 8 C-5/Item-50 OA-2597/2023 have rightly withdrawn the appointment letter. Being aggrieved, the applicant has filed the present OA seeking the following reliefs:
"(i) That the Hon'ble Tribunal may further graciously be pleased to pass an order of quashing the impugned order dated 11.07.2023 (Annex. A/1), show cause notice dated 09.09.20016 (Annex. A/2) and order dated 19.09.2019 all other orders which have been on the basis of these orders, declaring to the effect that the same are illegal, arbitrary and against the law and consequently, pass an order directing the respondents to treat the father of the applicant as Vol. retired and also pass an order restore the appointment of the applicant immediately with all the consequential benefit including the arrears of pay and allowances during the intervening period.
(ii) That the Hon'ble Tribunal may further graciously be pleased to pass an order directing the respondent to grant pay and allowances to the applicant from the period from 04.10.2019 till allowing him to perform his duties.
(iii) Any other relief which the Hon'ble Tribunal deems fit and proper may also be granted to the applicant along with the costs of litigation."
2. Learned counsel for the applicant submits that the applicant is aggrieved by the impugned order dated 11.07.2023 passed pursuant to the implementation of judgment of this Tribunal in OA No. 1023/2021 titled Ashish Dhiman Vs. UOI and Ors. Relevant portion of the order dated 11.07.2023 reads as under:-
"The LARSGESS Scheme was itself terminated by Railway Board w.e.f. 27.10.2017 vide RBE No.150/2018 in compliance with the judgment of the Hon'ble High Court of Punjab & Haryana, which had held that the scheme to be prima facie violence of Article - 14 & 16 of the Constitution of India. Further, Railway Board vide letter No. E(P&A)I- 2015/RT-43 dated 10.03.2024 has directed that the directions of Hon'ble Supreme Court in WP (c) on 1407/2019 & WP (C) No. 78/202, should be adhere to. In aforesaid cases before the Hon'ble Court petitioners being prayed for a Supreme Court in its judgments dated 28.01.2021 & 29.01.2021 has observed as under:-9
C-5/Item-50 OA-2597/2023
WP (C) No. 1407/2019:
"..... That once the scheme itself was withdrawn, no benefit whatsoever including one of consideration of representation could be afforded to any of the persons."
WP (C) No. 78/2021:
".... 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 expectation under such scheme. All claims base on the scheme must now be closed."
In view of the above, it is clear that in accordance with extant rules and decisions of the Hon'bel Supreme Court, appointment case no longer be considered under the LARSGESS Scheme.
I have carefully examined the relevant facts and records placed before me in file and decide that since the father of applicant was paid all retiral dues treating him normal superannuation w.e.f. 31.01.2018, he cannot be said to voluntary retired from Railway Service under LARSGESS scheme and the applicant is not entitled for appointment under LARSGESS scheme has finally been terminated by Railway Board. (RBE No. 150/2018 & 151/2018). The Honb'le SC in WP (C) No. 78/2021 titles as Manjit Singh & Ors. Vs. UOI & Ors. Vide order dated 29.01.2021 has confirmed that the Union of India has correctly terminated the scheme and justified the discontinuation of LARSGESS scheme and now the claim under LARSGESS is neither a vested right nor a legitimate expectation. This disposes of the representation of applicant."
2.1 The learned counsel for the applicant further states that the impugned order is perverse, bad in law, illegal and arbitrary exercise of administrative powers. He would contend that the rejection of the claim is based on the premise that the LARSGESS Scheme itself was discontinued. He would contend that the rejection on the ground of termination of LARSGESS Scheme w.e.f. 27.10.2017 cannot be applied to the facts of the present case in light of the fact that Sh. Suresh Kumar, father of the 10 C-5/Item-50 OA-2597/2023 applicant was working as Khallasi and superannuated on 02.06.2016 and as per the LARSGESS scheme, the applicant was appointed as Helper Khallasi w.e.f. 02.06.2016. Thereafter, Sh. Suresh Kumar was issued an order dated 09.09.2016, whereby the respondents decided to terminate the service of the applicant and decided to cancel his voluntary retirement. Aggrieved by the same the applicant was compelled to file OA No. 4293/2016 and the same was decided on 23.12.2016 with the following observations:-
"5. In view of disposal of the batch of the OAs pertaining to the LARSGES Scheme, the present OA is also disposed of in terms of the said orders. However, the respondents shall not pass any adverse orders till they take a final decision as per the aforesaid orders. No costs."
2.2 He further states that the respondents while passing the impugned order neither considered the Hon'ble Tribunal judgment dated 23.12.2016 nor considered the Railway Board order dated 28.09.2018. The judgment dated 23.12.2016 clearly states that the respondents shall not pass any adverse orders till they take a final decision as per the P&H High judgment and in compliance of P&H Judgment, the respondents passed the order dated 28.09.2018 and the case of the present applicant is fully covered by the Railway Board order dt.28.09.2018. Sh. Suresh Kumar expired on 17.11.2019. The applicant filed an OA No. 99/2020 and the same was decided along with the OA No. 4459/2018 filed by the father of the applicant during 11 C-5/Item-50 OA-2597/2023 his life time for releasing his retirement benefits and both the OAs were decided by the Tribunal vide judgment dated 9.09.2020 with the directions quoted above. 2.3 However, the order dated 22.11.2016 by which the appointment of the applicant was withdrawn was set aside by the Tribunal in the earlier round of litigation, i.e., OA No. 4459/2018 and when no fresh order regarding the appointment order of the applicant was passed, the applicant filed an OA No.1023/2021 for seeking the relief of restoration of his appointment with all consequential benefits, which came to be decided on 4.05.2023 by passing the directions quoted above.
2.4 Hence, the impugned order dated 11.07.2023 was passed in the present matter.
2.5 It is not a matter of dispute that the retiral dues have been released by the competent authority by the respondents insofar as Sh. Suresh Kumar, father of the applicant is concerned.
2.6 He would further contend that the rejection of the order is without taking note of the directions contained in the decision renderd in W.P. (C) No. 10279/2017, titled Mewa Lal Pal and Anr. v. Union of India and anr. decided on 25.01.2019. Relevant part of the same reads 12 C-5/Item-50 OA-2597/2023 as under:-
"6. The stand taken by the respondents that the said LARSGESS Scheme is not applicable qua Electric Department also cannot be appreciated. The petitioners cannot be made to suffer for the said lapse on the part of the respondents. Had petitioner No.2 not been granted appointment on 20.08.2013, he would have pursued other avenues and may have got other similar or even better employment. At this stage, it would be unjust to discontinue his services.
7. Consequently, while dismissing the present petition, we direct that the services of petitioner No.2 should not be discontinued only on account of the LARSGESS Scheme being declared ultra vires, or on account of the fact that the said scheme was not applicable to the Electric Department when appointment was granted to petitioner No.2."
3. We have heard both the learned counsels carefully and gone through the records of the case thoroughly. 3.1 From the pleadings by the parties and averments made by both the counsels, the following issues are culled out for adjudication of the present OA:
(i) What is the definition of qualifying service under the LARSGESS Scheme as it was in vogue till it was terminated by the Railway Board with effect from 27.10.2017?.
(ii) Whether the entire period of "leave without pay"
is considered as non-qualifying under the LARSGESS Scheme and/or under the Railway Services (Pension) Rules, 1993?
(iii) Whether the period served by the applicant as "substitute" shall be included as qualifying 13 C-5/Item-50 OA-2597/2023 service for the purpose of LARSGESS Scheme or the Railway Services (Pension) Rules, 1993?
(iv) What is the qualifying service of the present applicant as on the relevant cut-off date i.e. 31.12.2014?
(v) Can the period or a part of it rendered by the
applicant on casual basis, be treated as
qualifying service for retirement purposes.
3.2 The LARSGESS Scheme was introduced in the year 2004. As this is a retirement Scheme, there is no separate definition of qualifying service. Hence, the qualifying service from the Railway Services (Pension) Rules, 1993 can be considered as the relevant definition of qualifying service for getting benefits under the LARSGESS Scheme. The definition of qualifying service under Rule 22 of the aforesaid Rules reads as follows:
"22. "qualifying service" means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules."
3.3 Rule 14 of the Railway Services (Pension) Rules, 1993 has defined periods which shall not be treated as service for pensionary benefits, in the following manner:
"14. Periods which shall not be treated as service for pensionary benefits - Periods of employment in any of the following capacities shall not constitute service for pensionary benefits, namely,-14
C-5/Item-50 OA-2597/2023
(i) in a part-time capacity;
(ii) at casual market or daily rates;
(iii) in a non-pensionable post;
(iv) in a post paid from contingencies except as provided
in rule 31;
(v) under a convenant or a contract which does not
specifically provide for grant of pensionary benefits;
(vi) work done on payment of a fee or honorarium;
(vii) Apprentice period of Special Class Apprentices
(Authority: Railway Board's letter No.
F(E)III/99/PN 1/(Modification) dated 23.5.2000);
(viii) removal or dismissal from service in accordance with rule 40;
(ix) resignation from service save as indicated under rule 41;
(x) period of unauthorised absence in continuation of authorised leave of absence treated as overstay;
(xi) joining time allowed to a railway servant transferred at his own request and not in public interest for which he is not entitled to be paid;
(xii) period of service treated as dies-non;
(xiii) foreign service in respect of which the foreign employer or railway servant has not paid service contributed unless the payment has been specifically waived by the President;
(xiv) on contract basis except when followed by confirmation.
NOTE: Unpaid holidays, Sundays and short periods of leave for half-a-day or less granted to railway workshop staff shall be treated as qualifying service."
3.4 Rules 32 and 36 of the aforesaid Rules are also relevant for calculating the qualifying service of an employee. Rule 32 talks about the period of an employee rendered as a 'substitute'. Rule 36, on the other hand, considers the period spent on leave. For better appreciation, these two rules are reproduced below:
"32. Counting of service of 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."
"36. Counting of period spent on leave - All leave during service for which leave salary is payable and all 15 C-5/Item-50 OA-2597/2023 extraordinary leave granted on medical grounds shall count as qualifying service:
Provided that in the case of extraordinary leave other than extraordinary leave granted on medical certificate, the appointing authority may, at the time of granting such leave, allow the period of that leave to count as qualifying service if such leave is granted to a railway servant."
3.5 Even Rule 31 talks about counting of service paid from contingencies, in the following manner:
"Counting of service paid from Contingencies - In respect of a railway servant, in or after the 22nd day of August, 1968, half the service paid from contingencies benefits on absorption in regular employment, subject to the following condition namely: -
(a) the service paid from contingencies has been in a job involving whole - time employment;
(b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned such as posts of malis, chowkidars and khalasis;
(c) the service should have been such for which payment has been made either on monthly rate basis or on daily rates computed and paid on a monthly basis and which, though no analogous to the regular scales of pay, borne some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;
(d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break Provide that the weightage for past service paid from contingencies shall be limited to the period after 1st January 1961 subject to the condition that authentic records of service such as pay bill, leave record or service-
book is available."
4. From the position explained above in paragraphs 3.2 to 3.5, it is clear that the definition of `qualifying service' under the LARSGESS Scheme can't be different than what is 16 C-5/Item-50 OA-2597/2023 considered as qualifying service for normal retirement benefits. Item No.(i) is decided accordingly. 4.1 The factual position regarding the appointment of the applicant as it has been mentioned in paragraph no.4.1 of the OA is not disputed by the respondents. The applicant joined service as a casual employee in the year 1987. However, he has not been able to provide his actual date of casual employment. Hence, as per rule 31 of the aforesaid Rules, the benefit of casual service paid from contingencies shall be subject to the condition that authentic records of service such as pay bill, leave record or Service Book is available. In the instant case, the applicant has failed to produce any such record in support of his claim that the period spent by him from 1987 till his regular appointment as a `substitute' on 27.04.1988 be treated as qualifying service. Hence, the said relief cannot be granted on this count. This decides issue no.(v).
4.2 In view of the Rule position explained in paragraphs 3.2 to 3.5, the relevant period for consideration of qualifying service starts from 27.04.1988 to 31.12.2014. The respondents have taken the relevant period from the date the applicant was regularized i.e. 31.12.1996. The period of "substitute" has not been considered by the respondents as a qualifying period. This 17 C-5/Item-50 OA-2597/2023 is in contravention of rule 32 of the Railway Services (Pension) Rules, 1993, reproduced above. Rule 32 categorically states that 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' post without any break. In the instant case, the applicant has been working as a "substitute" since 27.04.1988 and he was regularized with effect from 31.12.1996. There is no counter-claim that he was not serving regularly as a "substitute" or he had any breaks during this period from 27.04.1988 to 31.12.1996. In view of this, the period of the applicant when he rendered service as a "substitute" should have been calculated as a qualifying service as per rule 32 of the aforementioned Rules. Accordingly, the impugned order and the previous orders rejecting the claim of the applicant for voluntary retirement stating that he has not completed 20 years of qualifying service, have ignored the period for which he has rendered service as a "substitute". Taking his "substitute" period as qualifying service, the father of the applicant has completed more than 20 years of qualifying service on the cut-off date 31.12.2014. This decides the issue no.(iii).
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C-5/Item-50 OA-2597/2023 4.3 In the instant case, the respondents have not disputed
that the applicant was working as a "substitute" with effect from 27.04.1988 nor have they given any counter-claim that the applicant had breaks during the period which he rendered as a "substitute" from 27.04.1988 to 31.12.1996. In absence of this, we accept the claim of the applicant that he rendered unbroken and regular service as a substitute from 27.04.1988 to 31.12.1996. This period shall be treated as qualifying service for his retirement benefits including voluntary retirement under the LARSGESS Scheme. 4.4 Treatment of leave without pay: The respondents vide the impugned order dated 11.07.2023 have reiterated that initially the respondents wrongly calculated the leave without pay period as 670 days till 31.12.2014 whereas on scrutiny, it was found that he had availed leave without pay for 1056 days. Accordingly, the respondents have calculated the total qualifying service of late Shri Suresh Kumar, father of the present applicant as 19 years, 5 months and 6 days from the date of his regular appointment till 31.12.2014. However, the applicant neither in his pleadings nor through his counsel during submissions, has referred to any documentary evidence stating that the leave without pay was sanctioned as extraordinary leave on medical certificate. There is no record showing that the competent authority while granting such leave, has 19 C-5/Item-50 OA-2597/2023 mentioned that such leave would be counted as a qualifying service as per rule 36 of Railway Services (Pension) Rules, 1993. In view of this, we cannot give any benefit to the applicant that the entire leave without pay period would be counted as qualifying service as per proviso under rule 36 of the aforesaid Rules. This decides issue no.(ii).
5. The applicant and his father in various OAs including the present OA have challenged the decision of the respondents regarding the treatment of the qualifying service of the applicant for getting voluntary retirement under the LARSGESS Scheme. We have analyzed the rule position in this regard and given our findings regarding various issues.
5.1 Once the claim of the applicant that the respondents have wrongly calculated the qualifying period while reviewing his voluntary retirement (which was granted by the respondents on 2.06.2016) is decided, then the major grievance of the applicant will be taken care of. The subsequent actions by the respondents in superannuating the applicant's father with effect from 2.06.2016 and releasing the retirement benefits considering that he has retired on superannuation and the withdrawal of the LARSGESS Scheme with effect from 27.10.2017 are depended upon this foundation. At the relevant point of 20 C-5/Item-50 OA-2597/2023 time i.e. when the applicant's father applied for voluntary retirement when the LARSGESS Scheme was in vogue his voluntary retirement was granted correctly in the first stage as he has the relevant period of qualifying service, the applicant has every claim to remain in service and his father was entitled to get voluntary retirement benefits from the date the voluntary retirement was applied and initially sanctioned.
5.2 In view of the above, the following orders are passed:
(i) Order dated 11.07.2023 (Annexure A-1), Show Cause Notice dated 9.09.2016 (Annexure A-2) and order dated 19.09.2019 which are the basis of the order dated 11.07.2023 are quashed;
(ii) Late Shri Suresh Kumar, father of the applicant shall be treated as retired on voluntary retirement under the LARSGESS Scheme with effect from 2.06.2016. The order dated 19.12.2019 vide which the appointment of the applicant has been withdrawn with immediate effect, is quashed. The applicant shall be taken back in service immediately with all 21 C-5/Item-50 OA-2597/2023 consequential benefits.
6. The OA is disposed of in the above manner. No order as to costs.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/dkm/f/