Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary on 30 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ( reserved on 21.10.2013 ) O.A.NO. 356/PB/2012 Date of order:---- October 30 , 2013. Coram: Honble Mr. Sanjeev Kaushik, Member (J). Honble Mrs. Rajwant Sandhu, Member (A). Paramjit Singh son of Sh. Santok Singh, working as Helper Khalasi (Air Condition) under Senior Section Engineer, Air Condition, Amritsar, Northern Railway, Ferozpur Division, Punjab. Applicant (By Advocate: Mr. D.R.Sharma ) Versus 1.Union of India through the Secretary, Ministry Railways, Govt. of India, New Delhi. 2.Senior Divisional Personnel Officer, Northern Railway, Firozpur Division, Firozpur. 3. Divisional Railway Manager, Northern Railway, Firozpur Division, Firozpur. Respondents (By Advocate: Mr. G.S.Sathi ). O R D E R. Honble Mr. Sanjeev Kaushik, Member (J):
By means of the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the order dated 19.3.2012 whereby his request for voluntary retirement and appointment of Electrical AC under LARSGESS Scheme to his son has been rejected.
2. Facts are to be noticed first. The applicant herein joined the service of the respondent department on 10.1.1984 as Gangman and is working as Helper Khalasi (Air Condition) since 1999 under Senior Section Engineer, Air Condition, Amritsar, Northern Railway, Ferozpur Division, Punjab. The respondents issued a Scheme known as Safety related Retirement Scheme for drivers and Gangmen which was introduced by the Ministry of Railways on 2.1.2004. The drivers and Gangmen who are in the age group of 50 to 57 years and have completed 33 years of qualifying service under the Scheme, their wards who are otherwise eligible are to be given appointment. Vide Railway Board letter dated 11.9.2010, the benefit of the said Scheme was extended to other categories of staff of different departments which include the category of Khalasi/Khalasi Helper, which were re-designated as Helper Gr.II & Helper Gr.I assisting Train Lighting & A C Fitter(Open line & Workshop) to which the applicant belongs. On 1.9.2010, the nomenclature of the said Scheme was changed to Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff ( LARSGESS) ( for short LARSGESS). The applicant applied under the said Scheme and submitted the name of his son namely Mandeep Singh for his appointment. His application was duly accepted by the DRM Ferozepur division. The name of the applicant was at sr.no.520 in the list circulated by the respondent department where the cut off date was taken as 30.6.2010. The Senior Divisional Personnel Officer, Ferozepur vide letter dated 16.2.2012 has informed the divisions about conducting of written test on 7.4.2012 for recruitment of wards of the eligible staff who had applied for voluntary retirement for the years 2010, 2011 & 2012 under the LARSGESS Scheme. Vide impugned order dated 19.3.2012, the applicant has been informed that since he is overage i.e. more than 57 years of age, therefore, his request for voluntary retirement and appointment of his ward under the said LARSGESS Scheme cannot be considered being over-age. Hence the Original Application.
3. Pursuant to notice, the respondents have contested the claim of the applicant by filing detailed written statement wherein they have taken a preliminary objection that the O.A may be dismissed for non-joinder of necessary parties as the son of the applicant has not been impleaded as a co-applicant for which the applicant is seeking appointment.
4. Under the heading of preliminary submissions, they have stated that the Railway Board vide letter dated 29.3.2011 have decided that the recruitment process for wards of the staff seeking retirement under the Scheme would be conducted twice every year i.e. Ist half- January-June and IInd half July-December. So far as the recruitment conducted during Ist half i.e. from January to June, the cut-off date for reckoning eligibility of the employee and his ward is Ist January of every year. In the present case, the written test for recruitment was fixed for 15.4.2012 i.e. falling in Ist half of the year 2012, thus, the cut-off date for reckoning the eligibility of the employee and his ward would be 1.1.2012. Since the date of birth of the applicant is 15.4.1954 and he attained 57 years of age, therefore, his case cannot be considered under the said Scheme and accordingly his ward was not eligible to participate in the written test scheduled for 15.4.2012.
5. We have heard Shri D.R.Sharma, learned counsel for the applicant and Shri G.S.Sathi, learned counsel for the respondents.
6. Shri Sharma, learned counsel for the applicant strenuously argued that it is not disputed by the respondents that when the applicant applied under the LARSGESS Scheme for voluntary retirement appointment of ward in lieu thereof, he was eligible and for the reasons best known to the respondent authorities, the test was not conducted and now when the test was conducted, his case has been rejected on the ground that he became overage and for the fault attributed on the part of the respondents, the applicant cannot be punished. He further submitted that this controversy has already been considered by the jurisdictional High Court in CWP No.19689/2011 (Om Prakash versus Union of India & Ors. ) decided on 3.7.2013, wherein similar objection raised by the respondents have been negated and direction has been given to the respondents to consider the claim of the petitioner therein in view of the parameters therein. Therefore, he prayed that the O.A. may be allowed and direction be given to the respondents to consider the claim of the applicants son for appointment.
7. Per contra, Shri Sathi, learned counsel appearing on behalf of the respondents did not dispute this fact that the jurisdictional High Court has decided the issue in the aforementioned case.
8. We have given our thoughtful consideration to the entire matter and gone through the pleadings available on record and the judgment cited by the learned counsel for the respective parties.
9. The only objection raised by the respondents that in the year 2012, when the examination was scheduled, the applicant became overage, therefore, his case could not be considered under the said Scheme which mandates that persons seeking benefit should be between the age of 50 to 57 of age. No reasons have been mentioned either in the written statement or at the time of arguments by the respondents that why the examination was not held. It is not disputed by the respondents that when the applicant submitted his application under the said Scheme, he was eligible. If the respondents undertook the exercise of written examination within time, then the case of the applicant should not have been rejected on the ground of overage for the delay in conducting the examination will not be disadvantageous to the applicant and he cannot be deprived of a welfare scheme for which he was otherwise eligible. It is settled law that a right which accrue to a person cannot be taken away without any valid or justified reason. The applicant cannot be penalized by not giving the benefit which accrued in his favour flow from the valid Scheme which is in force even till today on the ground that the respondents did not conduct the examination well in time which resulted into rejection of claim of the applicant becoming overage. Accordingly, we are of view that this action of the respondents cannot be allowed to sustain and the impugned order deserves to be quashed. A similar controversy arose before the Honble High Court in the case of Om Parkash versus Union of India & Ors decided on July 3, 2013. The relevant observations read as follows :-
There is, indeed, no dispute that the respondents-Department is the custodian of record and the petitioners assertion from the very beginning that he had rendered service of more than 33 years, has been found to be factually correct. The delay in tracing out the old record and in verifying the total service rendered by the petitioner, is solely attributable to the Department only. The petitioner can neither be penalized nor denied the benefit accrued in his favour under the aforesaid Scheme. We are unable to agree with the Tribunal that the respondents are not responsible for the delay as the record being in their custody, they were obligated to ascertain within a reasonable period whether or not the petitioner had rendered more than 33 years of service at the time when he applied under the Scheme.
The Tribunals observation that the petitioner has meanwhile retired on attaining the age of superannuation, in our considered view, is not an incurable disqualification. In such like situation, the respondents-department ought to have fixed a deemed date of voluntary retirement of the petitioner within an option to him to deposit the arrears of salary minus the pension, which would have entitled him the benefits under the Scheme. Such a recourse would have balanced the equities between the parties. In the light of the observations of the jurisdictional High Court in the above mentioned case, we are of the considered view that the present O.A. deserves to be allowed and the impugned order dated 9.3.2012 is hereby quashed and set-aside. The matter is remitted back to the respondents to reconsider the case of the applicant, as we have observed above. The above exercise be concluded within a period of three months from the date of receipt of a certified copy of this order. No costs.
(RAJWANT SANDHU) (SANJEEV KAUSHIK) MEMBER (A). MEMBER (J) Dated:- October 30 , 2013. Kks