THE STATE OF HARYANA & ORS versus A NISHANTH GEORGE on 25 January 2022

[2022] 16 S.C.R. 289

289

THE CHIEF PERSONNEL OFFICER & ORS.

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v.

A NISHANTH GEORGE

(Civil Appeal No. 294 of 2022)

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JANUARY 25, 2022

[DR DHANANJAYA Y CHANDRACHUD AND

A S BOPANNA, JJ.]

Service Law – Appointment scheme – Railway Board underUnion Railways Ministry introduced a scheme known as the SafetyRelated Retirement Scheme for the categories of Gangmen andDrivers – Drivers and Gangmen could seek voluntary retirement –When the application for retirement is accepted, employment wouldbe considered for a ‘suitable ward’ of the employee, subject tosuitability – Scheme later modified to Liberalized Active RetirementScheme for Guaranteed Employment for Safety Staff (“LARSGESSScheme”) – Safety staff in the age group of 50-57 years could nowseek voluntary retirement – By notification dated 28 September 2018,Railway Board decide to terminate the LARSGESS scheme with thedirection that no further appointments should be made under theScheme except in cases of “staff who have already retired underLARSGESS scheme before 27.10.2017 (but not naturallysuperannuated) and appointment of whole wards was not made dueto various formalities, appointment of such of the wards/candidatescan be made with the approval of the competent authority” – A twojudge bench of Supreme Court held that since the Scheme stoodterminated and was no longer in existence, nothing further neededbe done in the matter – In a subsequent case, a three-judge benchof the Supreme Court held that the Union of India had correctlyterminated the scheme; no person could claim a vested right orlegitimate expectation under the scheme; and that all claims basedon the Scheme must now be closed – In the instant case, appealsfiled against the decisions of High Court whereby the benefit of theScheme was extended to the respondents’ fathers on the groundthat they had retired before the cut off date of 27.10.2017 – Held:It needed determination if the claims of the respondents were coveredby the exception clause in the notification issued on 28 September2018 – The 28 September 2018 notification clearly envisaged that CD

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Ain spite of the termination of the LARSGESS scheme, appointmentsunder the scheme could only be made if (i) the staff had voluntarilyretired (and not naturally superannuated) under the scheme before27 October 2017; and (ii) appointment of the ward was not madebecause of ‘formalities’ which remained – The exception does notcover all pending claims – The benefit of the LARSGESS SchemeBcould not be extended where an employee had attained the age ofsuperannuation in the normal course before 27 October 2017 –The respondents’ fathers superannuated on 31 May 2016 and on31 December 2014 respectively – The respondents cannot claimany vested right under the scheme – Discretion to accept the requestCfor retirement will vest with the administration depending on thesuitability of the wards for appointment in the same category as theemployee – Therefore, the respondents cannot be brought withinthe purview of the exception merely because the claim was madebefore 27 October 2017 – Furthermore, individual cases of therespondents’ do not hold any merit.D

Allowing the appeals, the Court

HELD: 1. The notification envisages that in spite of thetermination of the LARSGESS scheme, appointments under thescheme could only be made if (i) the staff had voluntarily retiredE(and not naturally superannuated) under the scheme before 27October 2017; and (ii) appointment of the ward was not madebecause of ‘formalities’ which remained. The exception does notcover all pending claims. Clause (x) of notification which wasissued on 2 January 2004 states that discretion to accept therequest for retirement will vest with the administrationFdepending on the suitability of the wards for appointment in thesame category as the employee. Therefore, the respondentscannot be brought within the purview of the exception merelybecause the claim was made before 27 October 2017. [Paras 19,20][303-C; 304-B-C]

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2.1. In one civil appeal, respondent’s father was a Trackman.For the respondent to have been appointed under the scheme,he must have fulfilled the criteria for the appointment to thecategory in which his father was serving. Therefore, in terms ofthe scheme, though the respondent fulfilled the medical criteriaHrequirement for some other posts, he could not be considered for appointment. It is clearly evident that on the plain terms ofthe scheme as it stood, the case of the respondent did not fulfilthe criteria envisaged in the scheme [Para 22][304-H; 305-A-B]

2.2. In the companion civil appeal, the Tribunal dismissedthe OA filed by the respondent noting that the constitutionalvalidity of the scheme was suspect and that moreover the fatherof the respondent had retired on attaining the normal age ofsuperannuation. On a considered view of the matter, it is heldthat there was no error in the judgment of the Tribunal. [Para25][306-E]

2.3. Doubt was expressed on validity of the LARSGESSscheme by the Division Bench of the Punjab and Haryana HighCourt in Kala Singh which eventually led to the decision of theUnion government to terminate the scheme. While noticing theabove backdrop, the three judge Bench of this Court in Manjitclearly noted that the Scheme provided an avenue for backdoorentry into service and was contrary to the mandate of Article 16which guarantees equal opportunity in matters of publicemployment. In this backdrop, the impugned judgment of theHigh Court issuing a mandamus for the appointment of therespondent cannot be sustained. [Para 25][306-F-G]

State of Karnataka v. Uma Devi (2006) 4 SCC 1; Unionof India v. Kala Singh 2019 SCC OnLine SC 1965;Manjit v. Union of India 2021 SCC OnLine SC 49 andNarinder Siraswal v. Union of India 2019 SCC OnLineSC 1966 – referred to.

Kala Singh v. Union of India (Decision dated 27 April2016 of Punjab and Haryana HC in CWP No.7714 of2016) – referred to.

Case Law Reference

(2006) 4 SCC 1referred toPara 5CIVIL APPELLATE JURISDICTION: Civil Appeal No. 294 of2022.

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AFrom the Judgment and Order dated 21.03.2018 of the High Courtof Madras, Madurai Bench in W.P. (MD) No. 5046 of 2018.

With

Civil Appeal No. 295 of 2022.B

Ms. Madhavi Divan, Jayant Sud, ASGs, R. Balasubramanian,Sr. Adv., Ms. Aakanksha Kaul, Nachiketa Joshi, Ms. Vaishali Verma,Amrish Kumar, Anmol Chandan, Kush Chaturvedi, Navanjay Mahapatra,Amrish Kumar Sharma, Advs. for the Appellants.

Ms. Priyadarshini, Nithin Sanavanan, Ms. Arunima Singh,CMs. Manicka Priya S., Karunakar Mahalik, Ms. Ridhima Malhotra, R.Nedumaran, Advs. for the Respondent.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.D

2. In the two appeals which have come up for adjudication thereis a challenge to the judgments dated 21 March 2018 and 3 September2019 of the Madras High Court at its Madurai Bench. Since similarquestions of law arise in these appeals, both the special leave petitionshave been tagged and the arguments have been addressed together.

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3. On 2 January 2004, the Railway Board under the Union Ministryof Railways introduced a scheme known as the Safety RelatedRetirement Scheme for the categories of Gangmen and Drivers. Thescheme was intended to cover these “two safety categories” since theworking of Drivers and Gangmen was perceived to have a crucial bearingFon train operations and track maintenance. Taking note of the fact thatthe reflexes of the staff recruited to these categories and their physicalfitness might deteriorate with advancing age, causing a safety hazard,the scheme incorporated the following provisions:

(i) Drivers and Gangmen in the age group of 55-57 could seekGvoluntary retirement;

(ii) When the application for retirement is accepted, employmentwould be considered for a ‘suitable ward’ of the employee;

(iii) The employee should have completed 33 years of qualifyingservice in order to be eligible for seeking voluntary retirementHunder the scheme;

THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTHGEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

(iv) The ward of the employee would be considered foremployment only in the lowest recruitment grade of thecategory from which the employee sought retirement,depending upon eligibility and suitability but not in any othercategory;

(v) Applications for retirement under the scheme would betaken once a year with the cut-off date for reckoning theeligibility of the employees being 30[th] June, while the lastdate for submission of requests would be 31[st] July. Theeligibility criteria such as age limit and educationalqualifications will be determined with reference to the cut-off date;

(vi) The discretion to consider the request for retirement willvest with the administration depending on the shortage ofstaff, physical fitness and suitability of the ward in thecategory of Driver/Gangman as the case may be;

(vii) Persons who had completed 33 years of service and fellwithin the age group of 55-57 would be considered in thefirst phase followed by those between the age group of 53-55 years;

(viii) Criteria for the eligibility of wards would be as prescribedfor direct recruitment; and

(ix) The request of the employee for retirement would beconsidered only if the ward is considered suitable forappointment in all aspects including medical fitness.

4. On 11 September 2010, the Railway Board notified that thebenefit of the scheme would be extended to other safety categories ofstaff with a grade pay of Rs.1800/- per month. The period of qualifyingservice was reduced from 33 years to 20 years and the eligible agegroup from 55-57 to 50-57 years for seeking retirement under the scheme.The nomenclature of the scheme was modified to read as LiberalizedActive Retirement Scheme for Guaranteed Employment for Safety Staff(“LARSGESS Scheme”). The qualifying service period of 33 yearsand the age group of 55-57 years was to remain unchanged for Drivers.

5. The Railway Board also reiterated that retirement of anemployee would be considered only if a ward is found suitable in all A

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Aaspects. It was envisaged that the retirement of the employee andappointment of the ward should take place simultaneously. TheLARSGESS Scheme was scrutinised by a Division Bench of the HighCourt of Punjab and Haryana in a decision dated 27 April 2016 in KalaSingh v. Union of India[1]. In that case there was a challenge to anorder of the Central Administrative Tribunal (“CAT”) by which itBdismissed the original application filed by employees of the Railwaysseeking the postponement of the dates of their voluntary retirement tothe date on which their wards were appointed by the Railways underthe LARSGESS Scheme. Justice Surya Kant (as the learned Judge thenwas) speaking for the Division Bench of the High Court observed: -C“We have heard learned counsel for the petitioners and are of theview that the very foundation of their claim, namely, the SafetyRelated Retirement Scheme, prima facie, does not stand to thetest of Articles 14 and 16 of the Constitution of India. This policyis a device evolved by the Railways to make back-door entries inDpublic employment and brazenly militates against equality in publicemployment.”

The High Court while dismissing the writ petition directed therailway authorities to revisit its validity and sustainability keeping in viewthe principles of equal opportunity and elimination of monopoly in holdingEpublic employment before making any appointment under the “offendingpolicy”. An application which was moved by the Railways seeking recallor review of the order dated 27 April 2016 was dismissed by the DivisionBench on 14 July 2017 in the following terms:

“We have heard learned senior counsel for the Railways at aFconsiderable length. It is true that no notice was issued and theRailway Authorities were not heard while making prima facieobservations but the fact of the matter is that the only directionissued by this Court was to re-visit the offending policy keeping inview the principle of equal opportunity in public employment beforefurther appointments are made. Such a direction was necessitatedGkeeping in view the mandate of the Constitution Bench in Stateof Karnataka v. Uma Devi (2006) 4 SCC 1.”

6. The judgment of the High Court was challenged on behalf ofthe Railways before this Court under Article 136 of the Constitution. On 8 January 2018, while disposing of the SLP[2], this Court passed thefollowing order: - “1. While disposing of SLP (Civil) Diary No.37460/2017 on 8-1-2018, this Court has made the following order:

“Heard learned counsel for the parties.

Delay condoned.

Since the direction in the impugned order is only to re-visit theScheme in question, no interference is called for at this stage.The Petitioner(s) may take a conscious decision in thematter within a period of six weeks from today.

If any party is affected by the decision taken, such party maytake remedy against the same in accordance with law.

The special leave petition is, accordingly, dismissed.

Pending application(s), including application for intervention, shallalso stand disposed of.”

7. On 26 September 2018, the Railway Board notified its decisionto terminate the LARSGESS scheme in view of the observation of thePunjab & Haryana High Court in Kala Singh (supra). The notificationis as follows:

“Sub: Termination of the LARSGESS Scheme in view of directionsof Hon’ble High Court of Punjab and Haryana and the orders ofHon’ble Supreme Court of India in SLP(C) No.508/2018 dated08.01.2018.

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

The Hon’ble Punjab and Haryana High Court in its judgment dated27.04.16 in CWP No.7714 of 2016 had held that the Safety RelatedRetirement Scheme 2004 (later renamed as the Liberalised ActiveRetirement Scheme for Guaranteed Employment for Safety Staff{LARSGESS}, 2010) “prima facie” does not stand to the testof Article 14 and 16 of the Constitution of India.” It haddirected “before making any appointment under the offending A

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policy, let its validity and sustainability be revisited keepingin view the principles of equal opportunity and eliminationof monopoly in holding public employment.” Thereafter, in itsjudgment dated 14.07.17 (Review Petition RA-CW-330-2017 inCWP No.7714 of 2016), the Hon’ble High Court reiterated itsearlier direction and stated “such a direction was necessitatedkeeping in view the mandate of the Constitution Bench in State ofKarnataka Vs. Uma Devi, (2006) 4 SCC 1.”

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

2. In compliance with the above directions, Ministry of Railwayshave revisited the scheme duly obtaining legal opinion and consultedMinistry of Law & Justice. Accordingly, it has been decided toterminate the LARSGESS Scheme w.e.f. 27.10.2017 i.e. the datefrom which it was put on hold. No further appointments shouldbe made under the Scheme except in cases whereemployees have already retired under the LARSGESSScheme before 2710.17 (but not normally superannuated)and their wards could not be appointed due to the Schemehaving been put on hold in terms of Board’s letter dated27.10.17 though they had successfully completed the entireprocess and were found medically fit. All such appointmentsshould be made within the approval of the competent authority.

3. Please acknowledge receipt.”

Subsequently on 28 September 2018, the following decision wasnotified by the Railway Board:

“In supersession to Railway Board’s letter No. E(P&A)I-2015/RT-43 dated 26.09.2018, it is stated that while the LARSGESSScheme continues to be on hold with effect from 27.10.2017on account of various court cases to impart natural justice tothe staff who have already retired under LARSGESSscheme before 27.10.2017 (but not naturallysuperannuated) and appointment of whole wards was notmade due to various formalities, appointment of such of THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTHGEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

the wards/candidates can be made with the approval ofthe competent authority.”

In the above backdrop, the following decision was taken on 5March 2019 with regard to the appointment of wards under theLARSGESS Scheme where formalities were completed before27 October 2017:

“2. As regards the cases where the wards had completed allformalities including Medical examination under LARSGESSScheme prior to 27.10.2017 and were found fit, but theemployees are yet to retire, the matter is pending considerationbefore the Hon’ble Supreme Court and further instructionswould be issued as per directions of the Hon’ble Court.”

Consequently, it appears that an application[3] was moved beforethis Court in Union of India v. Kala Singh[4]. By an order dated 6March 2019, a two-Judge Bench of this Court observed:

“3. Since the Scheme stands terminated and is no longer inexistence, nothing further need be done in the matter.”

8. In Manjit v. Union of India[5], the jurisdiction of this Court wasinvoked under Article 32 of the Constitution seeking a mandamus directingthe Union of India and the Railways to appoint the petitioners in terms ofthe LARSGESS Scheme. Declining to accede to the request, this Courtobserved:

“6 The reliefs which have been sought in the present case, asalready noted earlier, are for a writ of mandamus to the Union ofIndia to appoint the petitioners in their respective cadres. Aconscious decision has been taken by the Union of India toterminate the Scheme. This has been noticed in the order of thisCourt dated 6 March 2019, which has been extracted above. Whiletaking this decision on 5 March 2019, the Union of India had statedthat where wards had completed all formalities prior to 27 October2017 (the date of termination of the Scheme) and were found fit, 3 IA 18573/2019, in Miscellaneous Application No(s). 346/2019 in MiscellaneousApplication No(s).1202/2018 I Petition for Special Leave to Appeal No.508/2018

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Asince the matter was pending consideration before this Court,further instructions would be issued in accordance with thedirections of this Court. Noticing the above decision, this Court, inits order dated 6 March 2019, specifically observed that since theScheme stands terminated and is no longer in existence, nothingfurther need be done in the matter. The Scheme provided for anBavenue of a back door entry into the service of the railways. Thiswould be fundamentally at odds with Article 16 of the Constitution.The Union government has with justification discontinued thescheme. The petitioners can claim neither a vested right nor alegitimate expectation under such a Scheme. All claims based onCthe Scheme must now be closed.”

9. The Court observed that: (i) the grant of reliefs to the petitionerswould only enable them to seek back door entry; (ii) the Union of Indiahad correctly terminated the scheme; and (iii) no person can claim avested right or legitimate expectation under the scheme.D10. At this stage, it would be material to note that in NarinderSiraswal v. Union of India[6], which was decided on 6 March 2019 by atwo-Judge Bench (prior to the judgment of the 3-Judge Bench in Manjit(supra)), this Court allowed the petitioners before it to move the authoritieswith an appropriate representation since they were claiming the benefitEof the scheme which was prevalent when their applications had beenfiled. The decision in Narinder Siraswal (supra) was noticed in thejudgment of the 3-Judge Bench in Manjit (supra). In this backdrop, itbecomes necessary now to advert to the facts of the two appeals.

11. (I) SLP (C) 906 of 2021:- The father of the respondent wasFa Senior Trackman in Southern Railway pursuant to his appointment on7 February 1988. On 2 December 2010, he submitted an application forvoluntary retirement under the LARSGESS Scheme. The applicationfor voluntary retirement was returned by the Senior DPO, MaduraiDivision on 11 April 2011 on the ground that in terms of the date of birthfurnished in the application (16 February 1954), the employee wasGoverage on the cut-off date, i.e., on 1 July 2011. The respondent’s fathersubmitted a second application on 28 January 2014. On 31 December2014, the employee retired and received his retirement benefits. Thethird application was submitted on 18 April 2015, seeking reconsideration of the rejection of the first application on the ground that the date of birthin the first application had been wrongly recorded. An OA was filedbefore the Madras Bench of the CAT in 2017 seeking a direction toprovide employment to the respondent under the LARSGESS scheme.It was submitted that when the first application was made, therespondent’s father was within the age limit but the application waswrongly rejected due to miscalculation of age. The counsel for Railwayshad submitted that the application was made on 28 January 2014, inresponse to the notification issued in 2014. As on 1 January 2014, therespondent’s father was over 57 years old, irrespective of whether hisdate of birth is considered as 16 February 1954 or 16 December 1954.The OA was dismissed on 11 December 2017 with the followingobservations:

“4. As the constitutional validity Scheme is suspect and noappointments are being made under the Scheme, it is not possibleto give any directions to the Respondents to consider the case ofthe Applicant. In any case, it is not in dispute that the Applicant’sfather retired only on superannuation and not before the age of 57years. Therefore the question of the applicant being appointedunder the scheme never arose.”

12. The respondent challenged the judgment of the Tribunal underArticle 226 of the Constitution. By its judgment dated 3 September 2019,the High Court observed that the date of birth of the father of therespondent should be reckoned as 16 December 1954. The High Courtobserved that in view of the nature of the employment of the respondent’sfather, he should not be made to suffer for an inadvertent mistake. Hence,the application dated 2 December 2010 which had been received on 7December 2010 was held to be well within the age limit prescribed underthe LARSGESS Scheme. The High Court also held that though thescheme was terminated, since the respondent’s father superannuatedon 1 January 2015 prior to 27 January 2017, the benefit of the schemecould be extended to him in terms of the notification dated 28 September2018.

13. (II) SLP(C) No.1417 of 2019:- The father of the respondentwas working as Senior Trolley man in Southern Railways. On 29September 2011, he opted for voluntary retirement under the LARSGESSscheme and sought the appointment of the respondent. The respondentqualified in the written examination. On 10April 2012, the respondent ABC

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Awas informed that he was found unfit in class AYE THREE but wasfound fit in class CEE ONE and below. He was informed that theacceptable medical classification for the post of Trackman under therules was AYE THREE and so he was medically unfit for appointmentto the post of Trackman under the scheme. The respondent appealedfor constituting a Medical Board. On 4 January 2013, the Medical BoardBafter examining the respondent, found him ineligible for appointment tothe post of Trackman. The respondent submitted a representation to theGrievance Cell of Southern Railways to consider his claim forappointment as Trackman. The representation was rejected by a letterdated 12 December 2013. The respondent moved the Madras Bench ofCthe CAT praying for his appointment under the Scheme. The Tribunaldisposed of the case on 1 April 2016, directing the Railways to considerhis case for appointment for any post of CEE ONE and below. TheTribunal by its judgement observed:

“8. It is not disputed that the applicant’s father is still in service.DThe applicant’s family cannot be said to be in immediate need ofhis support. His appointment can be considered under the schemewhich permits an employee to take VRS and request forappointment of an eligible ward. In this the respondent also agreedthat the applicant’s ward is medically fit for the post of CEE ONEfor which the applicant has very much agreed. Hence theErespondent is directed to act accordingly and simultaneously withinsix weeks on receipt of copy of the order.

9. In view of the fact that Respondents have admitted that applicantsatisfied in CEE ONE and below post, therefore, he can beconsidered for any such post under the said category. On suchFconsiderations, suitable orders can be passed within six weeksfrom the date of receipt of copy of this order.

14. The Divisional Office of Southern Railway perused the filesof the respondent to determine the feasibility of his appointment in CEEONE posts and below. The claim of the respondent was rejected on 31GMay 2016 in view of the notification of the Railway Board dated 2 January2004 governing the LARSGESS scheme to the effect that the ward ofthe employee must be considered for appointment only in the lowestrecruitment grade from which the employee seeks retirement. Since therespondent was found to be medically unfit for appointment in the categoryof Trackman and his father was due for retirement from service on 31H

May 2016, the claim was rejected. The respondent once again movedan OA before the Tribunal. The Tribunal by its judgement dated 24 March2017 noted that the respondent was declared to be unfit in the medicalexamination for the post of Trackman. However, the Tribunal observedthat its earlier order on 1 April 2016 had recorded that the respondentwas medically fit for the post of CEE ONE and below. The Tribunalaccordingly directed the Railways to consider the respondent in a postaccording to his medical fitness (CEE ONE and below). In 2017, therespondent instituted a petition under Article 226 of the Constitution beforethe High Court for a mandamus directing compliance with the order ofthe Tribunal dated 24 March 2017. The High Court by its judgementdated 14 November 2017 directed the implementation of the judgementof the Tribunal. The Divisional Officer of the Southern Railway issued acommunication on 17 January 2018 negating the claim of the respondenton the ground that the High Court of Punjab and Haryana had held thatthe LARSGESS Scheme was contrary to the provisions of Articles 14and 16 of the Constitution. The claim was also rejected on the groundthat the respondent could not be appointed for the following reasons:

(i) The father of the respondent had retired on superannuation on31 May 2016 as Senior Trackman; and that a coordinate bench ofthe Madras High Court while deciding Writ Petition No. 1040/2017 had declined relief to a similarly placed employee who hadcontinued to work until the date of superannuation; and

(ii) In terms of the Railway Board’s letter dated 2 January 2004,the ward could be considered for appointment only in the lowestrecruitment grade of the category from which the employee seeksretirement.

15. The respondent instituted a writ petition before the High Court.The High Court by its judgement dated 31 March 2018, came to theconclusion that the rejection of the claim was in disregard of the order ofthe Tribunal dated 24 March 2017. Accordingly, the petition was allowedby directing the Railways to comply with the order dated 24 March2017, granting appointment to the respondent in any post in CEE ONEand below categories. The judgements of the High court in the twocases have given rise to the present appeals.

16. While considering the merits of the appeal, it becomesnecessary to note at the outset that the LARSGESS Scheme introduced A

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Aby the Railways was considered in the judgement of a Division Benchof the Punjab and Haryana High Court in Kala Singh (supra). The HighCourt found that the scheme was a device evolved by the Railways tomake back door entries in public employment and that it brazenly militatedagainst equality in public employment. The High Court directed therailway authorities to revisit the validity of the scheme before makingBany appointments bearing in mind the principles of equal opportunity andthe elimination of monopoly in public employment. A review petition wasdismissed by the High Court. An SLP against the judgment of the Punjaband Haryana High Court was dismissed by this Court on 8 January2018.C

17. In the meantime, a decision was taken by the Railway Boardon 26 September 2018, after seeking legal opinion from the Union Ministryof Law and Justice, to terminate the scheme with effect from 27 October2017 which was the date on which it was put on hold. The RailwayBoard directed that no further appointments would be made under theDscheme except in those cases where employees had already retiredunder the scheme before 27 October 2017 (but had not “naturallysuperannuated”) and their wards could not be appointed despitesuccessfully completing the entire process due to the scheme havingbeen held in abeyance.E18. On 28 September 2018, the earlier decision was supersededby directing that in spite of the termination of the scheme, appointmentsof wards could be made with the approval of the competent authority inthe case of staff who had retired before 27 October 2017 under theLARSGESS scheme (but not on attaining the normal age ofsuperannuation) but in whose case appointments of wards was not madeFdue to “various formalities”. In Union of India v. Kala Singh (supra) atwo judge Bench of this Court in its order dated 6 March 2019, observedthat since the scheme stood terminated and was no longer in existence“nothing further need be done in the matter”. In Narinder Siraswal(supra) which was decided on 26 March 2019, the two judge Bench ofGthis Court permitted the petitioners who claimed the benefit of the schemewhich was in existence when the applications were filed to move anappropriate representation. In Manjit (supra), a three judge Bench ofthis Court declined to entertain a petition under Article 32 on the groundthat a conscious decision had been taken by the Union of India to terminatethe scheme. The three judge Bench observed that the scheme wasH

fundamentally contrary to the principles of equality of opportunity inpublic employment under Article 16 of the Constitution. Noting that thedecision of the Union Government to discontinue the scheme was justified,the Court observed that all claims based on the scheme must now beclosed.

19. Now it is in this backdrop that it is necessary to consider thefacts insofar as they pertain to the two cases. Before dealing with theindividual facts of the case, it must be determined if the claims of therespondents are covered by the exception clause in the notification issuedon 28 September 2018. The notification clearly envisages that in spite ofthe termination of the LARSGESS scheme, appointments under thescheme could only be made if (i) the staff had voluntarily retired (andnot naturally superannuated) under the scheme before 27 October 2017;and (ii) appointment of the ward was not made because of ‘formalities’which remained. The exception does not cover all pending claims. As amatter of fact, another Division Bench of the Madras High Court[7] on 19January 2017 had held that an employee who received service benefitstill the date of superannuation, was not entitled to make a claim underthe LARSGESS scheme. It was held:

“Mr. L. Chandrakumar, learned counsel appearing for thepetitioner has objected the dismissal of the original applicationstating that retirement, pending adjudication of the originalapplication, cannot be a ground for rejection of the claim forcompassionate ground under the subject scheme. As rightly heldby the learned Tribunal, there was no pre-mature retirement onthe part of the first petitioner and the first petitioner also did notchoose to file any appeal against the proceedings dated 12.09.2012as directed by the authorities. The first petitioner, having continuedto work and enjoy the services benefits till the date ofsuperannuation cannot be allowed to make use of subject schemeseeking appointment. The scheme, as such, cannot be invoked, inthe case on hand as to defeat the purpose, in letter and spirit ofthe object behind formulating the scheme.”

20. From the above judgment, it is evident that a coordinate Benchof the High Court had taken the view that the benefit of the LARSGESSscheme could not be extended where an employee had attained the age A

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Aof superannuation in the normal course before 27 October 2017. Therespondents’ fathers superannuated on 31 May 2016 (SLP (C) No. 1417of 2019) and on 31 December 2014 (SLP (C) No. 906 of 2021). Thecontention of the respondents that since the claims were pendingadjudication before various fora, the delay cannot be attributed to themis erroneous. This Court in Manjit (supra) held that pending claims underBthe scheme must be closed. The respondents cannot claim any vestedright under the scheme. Clause (x) of notification which was issued on 2January 2004 states that discretion to accept the request for retirementwill vest with the administration depending on the suitability of the wardsfor appointment in the same category as the employee. Therefore, theCrespondents cannot be brought within the purview of the exception merelybecause the claim was made before 27 October 2017.

21. Moreover, we also find that the individual cases of therespondents’ do not hold any merit. In the appeal arising out of SLP (C)No 1417 of 2019, the respondent was found to be medically unfit for theDpost of trackman under the LARSGESS scheme. The basis of the claimof the respondent originates in the order of the Tribunal dated 1 April2016. The Tribunal proceeded on the basis that though the respondentwas found unfit for the post of Trackman, he was medically fit for anyCEE ONE post and posts below. After due consideration, appointmentwas denied by a letter dated 31 May 2016 on the ground that the wardEof an employee can be considered under the LARSGESS scheme onlyin the lowest recruitment grade of the ‘respective category’ of theemployee seeking retirement. As a matter of fact, clause (6) of para 2of the letter of the Railway Board dated 2 January 2004 clearly stipulatesthat:F“The ward will be considered for appointment only in the lowestrecruitment grade of the respective category from which therespective category from which the employee seeks retirement,depending upon his/her eligibility and suitability, but not in any othercategory.”G22. On 11 September 2010, when the Railway Board decided toextend the benefit of the scheme to other safety categories of staff withthe grade pay of Rs 1800 per month, it was envisaged that save andexcept for certain modifications inter alia in regard to the categories andthe period of qualifying service, the other terms and conditions of theHscheme will remain unchanged. The respondent’s father was a Trackman.

For the respondent to have been appointed under the scheme, he musthave fulfilled the criteria for the appointment to the category in whichhis father was serving. Therefore, in terms of the scheme, though therespondent fulfilled the medical criteria requirement for some other posts,he could not be considered for appointment. It is clearly evident that onthe plain terms of the scheme as it stood, the case of the respondent didnot fulfil the criteria envisaged in the scheme.

23. In the companion appeal which arose from SLP (C) No. 906of 2021, an application was submitted on 2 December 2010 by the fatherof the respondent seeking employment for his son, which was receivedby the Department on 7 December 2010. There was an endorsement onthe letter, as noted by the High Court to the effect that there was nopending vigilance case against the respondent’s father but the date ofbirth was mentioned incorrectly as 16 February 1954 instead of16 December 1954. The application was rejected on the ground that hehad crossed 57 years as on the cut-off date. It appears that this mistakewas realized and another application was submitted on 28 January 2014mentioning the correct date of birth. The Tribunal rejected his applicationon the ground that even assuming that the date of birth was 16 December1954, the respondent’s father had as on the cut-off date crossed the ageof 57 years. On appeal, the High Court held that even assuming that awrong date of birth had been mentioned, the date of birth of therespondent’s father should be reckoned as 16 December 1954, in whichevent the application was not barred by time. The divergence in theviews of the Tribunal and the High Court was because the Tribunal hadconsidered the eligibility with respect to the second application of therespondent made in 2014 while the High Court considered it against thefirst application made in 2011.

24. The respondent submitted that according to the notificationissued by the Ministry of Railways on 29 March 2011, the recruitmentprocess under LARSGESS scheme must be done twice in a yearaccording to the fixed time schedule. It was submitted that according tothe time schedule, the cut-off date for determining the eligibility of theemployee and their ward was 1 January for the first half; and the lastdate for receiving applications was 31 January. For the second half ofJuly-December, the cut-off date was 1 July; and the last date for receivingapplications was 31 July. The first application of the respondent wassubmitted on 2 December 2010. According to the appellant, the first AB

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Aapplication was submitted by the respondent’s father even before theLARSGESS Scheme was notified. The reliance of the respondent onthe notification of 29 March 2011 to justify the application is erroneous.Clause (2) of the notification states that the process of retirement/recruitment may be started from July 2011 for the calendar year of2011. This is evident from the letter dated 11 April 2011 where theBapplication submitted by the respondent’s father was rejected on theground that he would be 57 years 4 month 14 days old as on the cut-offdate of 30 June 2011. Further, the Divisional Office of Southern Officeissued a notification on 30 June 2011 stating that the last date for receiptof application is 31 July 2011 and that all those applications submittedCprior to the circular would not be considered. On the rejection of theapplication of the respondent’s father on 11 April 2011, a fresh applicationought to have been filled before 31 July 2011, mentioning the correctdate of birth. However, the respondent filled the second application on28 January 2014, nearly 3 years later when he was 59 years and 15 daysas on the cut-off date of 1 January 2014. When he submitted his secondDapplication, he had already superannuated and was above the age criteriaof 57 years.

25. The Tribunal in the present case dismissed the OA filed by therespondent noting that the constitutional validity of the scheme wassuspect and that moreover the father of the respondent had retired onEattaining the normal age of superannuation. On a considered view of thematter, we hold that there was no error in the judgment of the Tribunal.We have addressed in detail the history of the LARSGESS scheme andthe doubt expressed on its validity by the Division Bench of the Punjaband Haryana High Court in Kala Singh (supra) which eventually led to Fthe decision of the Union government to terminate the scheme. Whilenoticing the above backdrop, the three judge Bench of this Court inManjit (supra) clearly noted that the Scheme provided an avenue forbackdoor entry into service and was contrary to the mandate of Article16 which guarantees equal opportunity in matters of public employment.In this backdrop, the impugned judgment of the High Court of MadrasGissuing a mandamus for the appointment of the respondent cannot besustained.

26. We accordingly allow the appeals and set aside the judgmentsof the Madurai Bench of the Madras High Court dated (i) 21 March2018 in WP (MD) No. 5046 of 2018; and (ii) 3 September 2019 in WP

(MD) No. 6452 of 2018 and companion cases. The writ petitions filedby the respondents before the High Court shall stand dismissed. Thereshall be no orders as to costs. Pending application(s) if any stands disposed.

Devika Gujral and Amarendra Kumar(Assisted by : Pragya Samal, LCRA)

Appeals allowed.

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