caselaws
Supreme Court of India
The Chief Personnel Officer vs A Nishanth Geroge on 25 January, 2022Author: Hon’Ble Dr. Chandrachud
Bench: Hon’Ble Dr. Chandrachud, Sanjiv Khanna
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 294 of 2022
The Chief Personnel Officer & Ors. … Appellants
Versus
A Nishanth George … Respondent
And with
Civil Appeal No. 295 of 2022
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2022.01.25
16:21:21 IST
Reason:
1
JUDGMENT
Dr Dhananjaya Y Chandrachud, J
1 Leave granted.
2 In the two appeals which have come up for adjudication there is a challenge
to the judgments dated 21 March 2018 and 3 September 2019 of the Madras High
Court at its Madurai Bench. Since similar questions of law arise in these appeals,
both the special leave petitions have been tagged and the arguments have been
addressed together.
3 On 2 January 2004, the Railway Board under the Union Ministry of Railways
introduced a scheme known as the Safety Related Retirement Scheme for the
categories of Gangmen and Drivers. The scheme was intended to cover these “two
safety categories” since the working of Drivers and Gangmen was perceived to have
a crucial bearing on train operations and track maintenance. Taking note of the fact
that the reflexes of the staff recruited to these categories and their physical fitness
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 seek voluntary
retirement;
(ii) When the application for retirement is accepted, employment would be
considered for a ‘suitable ward’ of the employee;
2
(iii) The employee should have completed 33 years of qualifying service in
order to be eligible for seeking voluntary retirement under the scheme;
(iv) The ward of the employee would be considered for employment only in the
lowest recruitment grade of the category from which the employee sought
retirement, depending upon eligibility and suitability but not in any other
category;
(v) Applications for retirement under the scheme would be taken once a year
with the cut-off date for reckoning the eligibility of the employees being 30 th
June, while the last date for submission of requests would be 31 st July.
The eligibility criteria such as age limit and educational qualifications will
be determined with reference to the cut-off date;
(vi) The discretion to consider the request for retirement will vest with the
administration depending on the shortage of staff, physical fitness and
suitability of the ward in the category of Driver/Gangman as the case may
be;
(vii) Persons who had completed 33 years of service and fell within the age
group of 55-57 would be considered in the first phase followed by those
between the age group of 53-55 years;
(viii) Criteria for the eligibility of wards would be as prescribed for direct
recruitment; and
(ix) The request of the employee for retirement would be considered only if the
ward is considered suitable for appointment in all aspects including
medical fitness.
3
4 On 11 September 2010, the Railway Board notified that the benefit of the
scheme would be extended to other safety categories of staff with a grade pay of
Rs.1800/- per month. The period of qualifying service was reduced from 33 years to
20 years and the eligible age group from 55-57 to 50-57 years for seeking retirement
under the scheme. The nomenclature of the scheme was modified to read as
Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff
(“LARSGESS Scheme”). The qualifying service period of 33 years and the age
group of 55-57 years was to remain unchanged for Drivers.
5 The Railway Board also reiterated that retirement of an employee would be
considered only if a ward is found suitable in all aspects. It was envisaged that the
retirement of the employee and appointment of the ward should take place
simultaneously. The LARSGESS Scheme was scrutinised by a Division Bench of
the High Court of Punjab and Haryana in a decision dated 27 April 2016 in Kala
Singh v. Union of India1. In that case there was a challenge to an order of the
Central Administrative Tribunal (“CAT”) by which it dismissed the original
application filed by employees of the Railways seeking the postponement of the
dates of their voluntary retirement to the date on which their wards were appointed
by the Railways under the LARSGESS Scheme. Justice Surya Kant (as the learned
Judge then was) speaking for the Division Bench of the High Court observed: –
“We have heard learned counsel for the petitioners and are
of the view that the very foundation of their claim, namely,
the Safety Related Retirement Scheme, prima facie, does
not stand to the test of Articles 14 and 16 of the Constitution
of India. This policy is a device evolved by the Railways to
1
CWP No.7714 of 2016
4
make back-door entries in public employment and brazenly
militates against equality in public employment.”
The High Court while dismissing the writ petition directed the railway authorities
to revisit its validity and sustainability keeping in view the principles of equal
opportunity and elimination of monopoly in holding public employment before
making any appointment under the “offending policy”. An application which was
moved by the Railways seeking recall or review of the order dated 27 April 2016
was dismissed by the Division Bench on 14 July 2017 in the following terms:
“We have heard learned senior counsel for the Railways at a
considerable length. It is true that no notice was issued and
the Railway Authorities were not heard while making prima
facie observations but the fact of the matter is that the only
direction issued by this Court was to re-visit the offending
policy keeping in view the principle of equal opportunity in
public employment before further appointments are made.
Such a direction was necessitated keeping in view the
mandate of the Constitution Bench in State of Karnataka v.
Uma Devi (2006) 4 SCC 1.”
6 The judgment of the High Court was challenged on behalf of the Railways
before this Court under Article 136 of the Constitution. On 8 January 2018, while
disposing of the SLP2, this Court passed the following 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
the Scheme in question, no interference is called for at this
2
SLP(Civil) Diary No.37460 of 2017
5
stage. The Petitioner(s) may take a conscious decision
in the matter within a period of six weeks from today.
If any party is affected by the decision taken, such party may
take remedy against the same in accordance with law.
The special leave petition is, accordingly, dismissed.
Pending application(s), including application for intervention,
shall also stand disposed of.”
(emphasis supplied)
7 On 26 September 2018, the Railway Board notified its decision to terminate
the LARSGESS scheme in view of the observation of the Punjab & Haryana High
Court in Kala Singh (supra). The notification is as follows:
“Sub: Termination of the LARSGESS Scheme in view of
directions of Hon’ble High Court of Punjab and Haryana and
the orders of Hon’ble Supreme Court of India in SLP(C)
No.508/2018 dated 08.01.2018.
Ref: Board’s letter of even number dated 27.10.2017.
The Hon’ble Punjab and Haryana High Court in its judgment
dated 27.04.16 in CWP No.7714 of 2016 had held that the
Safety Related Retirement Scheme 2004 (later renamed as
the Liberalised Active Retirement Scheme for Guaranteed
Employment for Safety Staff {LARSGESS}, 2010) “prima
facie” does not stand to the test of Article 14 and 16 of the
Constitution of India.” It had directed “before making any
appointment under the offending policy, let its validity and
sustainability be revisited keeping in view the principles of
equal opportunity and elimination of monopoly in holding
public employment.” Thereafter, in its judgment dated
14.07.17 (Review Petition RA-CW-330-2017 in CWP
No.7714 of 2016), the Hon’ble High Court reiterated its
earlier direction and stated “such a direction was
necessitated keeping in view the mandate of the Constitution
Bench in State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1.”
1.1 In the Appeal against the judgment of the
Hon’ble High Court of Punjab & Haryana, the Hon’ble
Supreme Court of India, while disposing of the SLP(C)
No.508/2018 vide its order dated 8.01.18, declined to
interfere with the directions of the High Court.
6
2. In compliance with the above directions, Ministry of
Railways have revisited the scheme duly obtaining legal
opinion and consulted Ministry of Law & Justice.
Accordingly, it has been decided to terminate the
LARSGESS Scheme w.e.f. 27.10.2017 i.e. the date from
which it was put on hold. No further appointments should
be made under the Scheme except in cases where
employees have already retired under the LARSGESS
Scheme before 2710.17 (but not normally
superannuated) and their wards could not be appointed
due to the Scheme having been put on hold in terms of
Board’s letter dated 27.10.17 though they had
successfully completed the entire process and were
found medically fit. All such appointments should be made
within the approval of the competent authority.
3. Please acknowledge receipt.”
(emphasis supplied)
Subsequently on 28 September 2018, the following decision was notified 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
LARSGESS Scheme continues to be on hold with effect from
27.10.2017 on account of various court cases to impart
natural justice to the staff who have already retired under
LARSGESS scheme before 27.10.2017 (but not naturally
superannuated) and appointment of whole wards was
not made due to various formalities, appointment of
such of the wards/candidates can be made with the
approval of the competent authority.”
(emphasis supplied)
In the above backdrop, the following decision was taken on 5 March 2019 with
regard to the appointment of wards under the LARSGESS Scheme where
formalities were completed before 27 October 2017:
“2. As regards the cases where the wards had completed all
formalities including Medical examination under LARSGESS
Scheme prior to 27.10.2017 and were found fit, but the
employees are yet to retire, the matter is pending
7
consideration before the Hon’ble Supreme Court and further
instructions would be issued as per directions of the Hon’ble
Court.”
Consequently, it appears that an application3 was moved before this Court in Union
of India v. Kala Singh4. By an order dated 6 March 2019, a two-Judge Bench of
this Court observed:
“3. Since the Scheme stands terminated and is no longer in
existence, nothing further need be done in the matter.”
8 In Manjit v. Union of India5, the jurisdiction of this Court was invoked under
Article 32 of the Constitution seeking a mandamus directing the Union of India and
the Railways to appoint the petitioners in terms of the LARSGESS Scheme.
Declining to accede to the request, this Court observed:
“6 The reliefs which have been sought in the present case,
as already noted earlier, are for a writ of mandamus to the
Union of India to appoint the petitioners in their respective
cadres. A conscious decision has been taken by the Union of
India to terminate the Scheme. This has been noticed in the
order of this Court dated 6 March 2019, which has been
extracted above. While taking this decision on 5 March 2019,
the Union of India had stated that where wards had
completed all formalities prior to 27 October 2017 (the date
of termination of the Scheme) and were found fit, since the
matter was pending consideration before this Court, further
instructions would be issued in accordance with the
directions of this Court. Noticing the above decision, this
Court, in its order dated 6 March 2019, specifically observed
that since the Scheme stands terminated and is no longer in
existence, nothing further need be done in the matter. The
Scheme provided for an avenue of a back door entry into the
service of the railways. 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
3
IA 18573/2019, in Miscellaneous Application No(s). 346/2019 in Miscellaneous Application No(s).1202/2018 I
Petition for Special Leave to Appeal No.508/2018
4
2019 SCC OnLine SC 1965
5
2021 SCC OnLine SC 49
8
expectation under such a Scheme. All claims based on the
Scheme must now be closed.”
9 The Court observed that: (i) the grant of reliefs to the petitioners would only
enable them to seek back door entry; (ii) the Union of India had correctly terminated
the scheme; and (iii) no person can claim a vested right or legitimate expectation
under the scheme.
10 At this stage, it would be material to note that in Narinder Siraswal v. Union
of India6, which was decided on 6 March 2019 by a two-Judge Bench (prior to the
judgment of the 3-Judge Bench in Manjit (supra)), this Court allowed the petitioners
before it to move the authorities with an appropriate representation since they were
claiming the benefit of the scheme which was prevalent when their applications had
been filed. The decision in Narinder Siraswal (supra) was noticed in the judgment
of the 3-Judge Bench in Manjit (supra). In this backdrop, it becomes necessary now
to advert to the facts of the two appeals.
11 (I) SLP (C) 906 of 2021:- The father of the respondent was a Senior
Trackman in Southern Railway pursuant to his appointment on 7 February 1988. On
2 December 2010, he submitted an application for voluntary retirement under the
LARSGESS Scheme. The application for voluntary retirement was returned by the
Senior DPO, Madurai Division on 11 April 2011 on the ground that in terms of the
date of birth furnished in the application (16 February 1954), the employee was
overage on the cut-off date, i.e., on 1 July 2011. The respondent’s father submitted
a second application on 28 January 2014. On 31 December 2014, the employee
6
2019 SCC OnLine SC 1966
9
retired and received his retirement benefits. The third application was submitted on
18 April 2015, seeking reconsideration of the rejection of the first application on the
ground that the date of birth in the first application had been wrongly recorded. An
OA was filed before the Madras Bench of the CAT in 2017 seeking a direction to
provide employment to the respondent under the LARSGESS scheme. It was
submitted that when the first application was made, the respondent’s father was
within the age limit but the application was wrongly rejected due to miscalculation of
age. The counsel for Railways had submitted that the application was made on 28
January 2014, in response to the notification issued in 2014. As on 1 January 2014,
the respondent’s father was over 57 years old, irrespective of whether his date of
birth is considered as 16 February 1954 or 16 December 1954. The OA was
dismissed on 11 December 2017 with the following observations:
“4. As the constitutional validity Scheme is suspect and
no appointments are being made under the Scheme, it is not
possible to give any directions to the Respondents to
consider the case of the Applicant. In any case, it is not in
dispute that the Applicant’s father retired only on
superannuation and not before the age of 57 years.
Therefore the question of the applicant being appointed
under the scheme never arose.”
12 The respondent challenged the judgment of the Tribunal under Article 226 of
the Constitution. By its judgment dated 3 September 2019, the High Court observed
that the date of birth of the father of the respondent should be reckoned as 16
December 1954. The High Court observed that in view of the nature of the
employment of the respondent’s father, he should not be made to suffer for an
inadvertent mistake. Hence, the application dated 2 December 2010 which had been
10
received on 7 December 2010 was held to be well within the age limit prescribed
under the LARSGESS Scheme. The High Court also held that though the scheme
was terminated, since the respondent’s father superannuated on 1 January 2015
prior to 27 January 2017, the benefit of the scheme could be extended to him in
terms of the notification dated 28 September 2018.
13 (II) SLP(C) No.1417 of 2019:- The father of the respondent was working as
Senior Trolley man in Southern Railways. On 29 September 2011, he opted for
voluntary retirement under the LARSGESS scheme and sought the appointment of
the respondent. The respondent qualified in the written examination. On 10 April
2012, the respondent was informed that he was found unfit in class AYE THREE but
was found fit in class CEE ONE and below. He was informed that the acceptable
medical classification for the post of Trackman under the rules was AYE THREE and
so he was medically unfit for appointment to the post of Trackman under the
scheme. The respondent appealed for constituting a Medical Board. On 4 January
2013, the Medical Board after examining the respondent, found him ineligible for
appointment to the post of Trackman. The respondent submitted a representation to
the Grievance Cell of Southern Railways to consider his claim for appointment as
Trackman. The representation was rejected by a letter dated 12 December 2013.
The respondent moved the Madras Bench of the CAT praying for his appointment
under the Scheme. The Tribunal disposed of the case on 1 April 2016, directing the
Railways to consider his case for appointment for any post of CEE ONE and below.
The Tribunal by its judgement observed:
11
“8. It is not disputed that the applicant’s father is still in
service. The applicant’s family cannot be said to be in
immediate need of his support. His appointment can be
considered under the scheme which permits an employee to
take VRS and request for appointment of an eligible ward. In
this the respondent also agreed that the applicant’s ward is
medically fit for the post of CEE ONE for which the applicant
has very much agreed. Hence the respondent is directed to
act accordingly and simultaneously within six weeks on
receipt of copy of the order.
9. In view of the fact that Respondents have admitted
that applicant satisfied in CEE ONE and below post,
therefore, he can be considered for any such post under the
said category. On such considerations, suitable orders can
be passed within six weeks from the date of receipt of copy
of this order.
14 The Divisional Office of Southern Railway perused the files of the respondent
to determine the feasibility of his appointment in CEE ONE posts and below. The
claim of the respondent was rejected on 31 May 2016 in view of the notification of
the Railway Board dated 2 January 2004 governing the LARSGESS scheme to the
effect that the ward of the employee must be considered for appointment only in the
lowest recruitment grade from which the employee seeks retirement. Since the
respondent was found to be medically unfit for appointment in the category of
Trackman and his father was due for retirement from service on 31 May 2016, the
claim was rejected. The respondent once again moved an OA before the Tribunal.
The Tribunal by its judgement dated 24 March 2017 noted that the respondent was
declared to be unfit in the medical examination for the post of Trackman. However,
the Tribunal observed that its earlier order on 1 April 2016 had recorded that the
respondent was medically fit for the post of CEE ONE and below. The Tribunal
accordingly directed the Railways to consider the respondent in a post according to
12
his medical fitness (CEE ONE and below). In 2017, the respondent instituted a
petition under Article 226 of the Constitution before the High Court for a mandamus
directing compliance with the order of the Tribunal dated 24 March 2017. The High
Court by its judgement dated 14 November 2017 directed the implementation of the
judgement of the Tribunal. The Divisional Officer of the Southern Railway issued a
communication on 17 January 2018 negating the claim of the respondent on the
ground that the High Court of Punjab and Haryana had held that the LARSGESS
Scheme was contrary to the provisions of Articles 14 and 16 of the Constitution. The
claim was also rejected on the ground that the respondent could not be appointed
for the following reasons:
(i) The father of the respondent had retired on superannuation on 31 May 2016
as Senior Trackman; and that a coordinate bench of the Madras High Court while
deciding Writ Petition No. 1040/2017 had declined relief to a similarly placed
employee who had continued 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 lowest recruitment grade of the
category from which the employee seeks retirement.
15 The respondent instituted a writ petition before the High Court. The High
Court by its judgement dated 31 March 2018, came to the conclusion that the
rejection of the claim was in disregard of the order of the Tribunal dated 24 March
2017. Accordingly, the petition was allowed by directing the Railways to comply with
13
the order dated 24 March 2017, granting appointment to the respondent in any post
in CEE ONE and below categories. The judgements of the High court in the two
cases have given rise to the present appeals.
16 While considering the merits of the appeal, it becomes necessary to note at
the outset that the LARSGESS Scheme introduced by the Railways was considered
in the judgement of a Division Bench of the Punjab and Haryana High Court in Kala
Singh (supra). The High Court found that the scheme was a device evolved by the
Railways to make back door entries in public employment and that it brazenly
militated against equality in public employment. The High Court directed the railway
authorities to revisit the validity of the scheme before making any appointments
bearing in mind the principles of equal opportunity and the elimination of monopoly
in public employment. A review petition was dismissed by the High Court. An SLP
against the judgment of the Punjab and Haryana High Court was dismissed by this
Court on 8 January 2018.
17 In the meantime, a decision was taken by the Railway Board on 26
September 2018, after seeking legal opinion from the Union Ministry of Law and
Justice, to terminate the scheme with effect from 27 October 2017 which was the
date on which it was put on hold. The Railway Board directed that no further
appointments would be made under the scheme except in those cases where
employees had already retired under the scheme before 27 October 2017 (but had
not “naturally superannuated”) and their wards could not be appointed despite
successfully completing the entire process due to the scheme having been held in
abeyance.
14
18 On 28 September 2018, the earlier decision was superseded by directing that
in spite of the termination of the scheme, appointments of wards could be made with
the approval of the competent authority in the case of staff who had retired before 27
October 2017 under the LARSGESS scheme (but not on attaining the normal age of
superannuation) but in whose case appointments of wards was not made due to
“various formalities”. In Union of India v. Kala Singh (supra) a two judge Bench of
this Court in its order dated 6 March 2019, observed that 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 of this Court permitted the petitioners who claimed the benefit of
the scheme which was in existence when the applications were filed to move an
appropriate representation. In Manjit (supra), a three judge Bench of this Court
declined to entertain a petition under Article 32 on the ground that a conscious
decision had been taken by the Union of India to terminate the scheme. The three
judge Bench observed that the scheme was fundamentally contrary to the principles
of equality of opportunity in public employment under Article 16 of the Constitution.
Noting that the decision of the Union Government to discontinue the scheme was
justified, the Court observed that all claims based on the scheme must now be
closed.
19 Now it is in this backdrop that it is necessary to consider the facts insofar as
they pertain to the two cases. Before dealing with the individual facts of the case, it
must be determined if the claims of the respondents are covered by the exception
clause in the notification issued on 28 September 2018. The notification clearly
15
envisages that in spite of the termination of the LARSGESS scheme, appointments
under the scheme could only be made if (i) the staff had voluntarily retired (and not
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 a matter of fact, another Division
Bench of the Madras High Court7 on 19 January 2017 had held that an employee
who received service benefits till the date of superannuation, was not entitled to
make a claim under the LARSGESS scheme. It was held:
“Mr. L. Chandrakumar, learned counsel appearing for the
petitioner has objected the dismissal of the original
application stating that retirement, pending adjudication of
the original application, cannot be a ground for rejection of
the claim for compassionate ground under the subject
scheme. As rightly held by the learned Tribunal, there was no
pre-mature retirement on the part of the first petitioner and
the first petitioner also did not choose to file any appeal
against the proceedings dated 12.09.2012 as directed by the
authorities. The first petitioner, having continued to work and
enjoy the services benefits till the date of superannuation
cannot be allowed to make use of subject scheme seeking
appointment. The scheme, as such, cannot be invoked, in
the case on hand as to defeat the purpose, in letter and spirit
of the object behind formulating the scheme.”
20 From the above judgment, it is evident that a coordinate Bench of the High
Court had taken the view that the benefit of the LARSGESS scheme could not be
extended where an employee had attained the age of superannuation in the normal
course before 27 October 2017. The respondents’ fathers superannuated on 31 May
2016 (SLP (C) No. 1417 of 2019) and on 31 December 2014 (SLP (C) No. 906 of
2021). The contention of the respondents that since the claims were pending
7
Writ Petition 1040 of 2016
16
adjudication before various fora, the delay cannot be attributed to them is erroneous.
This Court in Manjit (supra) held that pending claims under the scheme must be
closed. The respondents cannot claim any vested right under the scheme. Clause
(x) of notification which was issued on 2 January 2004 states that discretion to
accept the request for retirement will vest with the administration depending on the
suitability of the wards for appointment in the same category as the employee.
Therefore, the respondents cannot be brought within the purview of the exception
merely because the claim was made before 27 October 2017.
21 Moreover, we also find that the individual cases of the respondents’ 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 the post of trackman under the LARSGESS
scheme. The basis of the claim of the respondent originates in the order of the
Tribunal dated 1 April 2016. The Tribunal proceeded on the basis that though the
respondent was found unfit for the post of Trackman, he was medically fit for any
CEE ONE post and posts below. After due consideration, appointment was denied
by a letter dated 31 May 2016 on the ground that the ward of an employee can be
considered under the LARSGESS scheme only in the lowest recruitment grade of
the ‘respective category’ of the employee seeking retirement. As a matter of fact,
clause (6) of para 2 of the letter of the Railway Board dated 2 January 2004 clearly
stipulates that:
“The ward will be considered for appointment only in the
lowest recruitment grade of the respective category from
which the respective category from which the employee
17
seeks retirement, depending upon his/her eligibility and
suitability, but not in any other category.”
22 On 11 September 2010, when the Railway Board decided to extend the
benefit of the scheme to other safety categories of staff with the grade pay of Rs
1800 per month, it was envisaged that save and except for certain modifications
inter alia in regard to the categories and the period of qualifying service, the other
terms and conditions of the scheme will remain unchanged. The 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 the category in which his father
was serving. Therefore, in terms of the scheme, though the respondent fulfilled the
medical criteria requirement for some other posts, he could not be considered for
appointment. It is clearly evident that on the plain terms of the scheme as it stood,
the case of the respondent did not fulfil the criteria envisaged in the scheme.
23 In the companion appeal which arose from SLP (C) No. 906 of 2021, an
application was submitted on 2 December 2010 by the father of the respondent
seeking employment for his son, which was received by the Department on 7
December 2010. There was an endorsement on the letter, as noted by the High
Court to the effect that there was no pending vigilance case against the
respondent’s father but the date of birth was mentioned incorrectly as 16 February
1954 instead of 16 December 1954. The application was rejected on the ground that
he had crossed 57 years as on the cut-off date. It appears that this mistake was
realized and another application was submitted on 28 January 2014 mentioning the
correct date of birth. The Tribunal rejected his application on the ground that even
18
assuming that the date of birth was 16 December 1954, the respondent’s father had
as on the cut-off date crossed the age of 57 years. On appeal, the High Court held
that even assuming that a wrong date of birth had been mentioned, the date of birth
of the respondent’s father should be reckoned as 16 December 1954, in which event
the application was not barred by time. The divergence in the views of the Tribunal
and the High Court was because the Tribunal had considered the eligibility with
respect to the second application of the respondent made in 2014 while the High
Court considered it against the first application made in 2011.
24 The respondent submitted that according to the notification issued by the
Ministry of Railways on 29 March 2011, the recruitment process under LARSGESS
scheme must be done twice in a year according to the fixed time schedule. It was
submitted that according to the time schedule, the cut-off date for determining the
eligibility of the employee and their ward was 1 January for the first half; and the last
date for receiving applications was 31 January. For the second half of July-
December, the cut-off date was 1 July; and the last date for receiving applications
was 31 July. The first application of the respondent was submitted on 2 December
2010. According to the appellant, the first application was submitted by the
respondent’s father even before the LARSGESS Scheme was notified. The reliance
of the respondent on the 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 of 2011.
This is evident from the letter dated 11 April 2011 where the application submitted
by the respondent’s father was rejected on the ground that he would be 57 years 4
19
month 14 days old as on the cut-off date of 30 June 2011. Further, the Divisional
Office of Southern Office issued a notification on 30 June 2011 stating that the last
date for receipt of application is 31 July 2011 and that all those applications
submitted prior to the circular would not be considered. On the rejection of the
application of the respondent’s father on 11 April 2011, a fresh application ought to
have been filled before 31 July 2011, mentioning the correct date of birth. However,
the respondent filled the second application on 28 January 2014, nearly 3 years later
when he was 59 years and 15 days as on the cut-off date of 1 January 2014. When
he submitted his second application, he had already superannuated and was above
the age criteria of 57 years.
25 The Tribunal in the present case dismissed the OA filed by the respondent
noting that the constitutional validity of the scheme was suspect and that moreover
the father of the respondent had retired on attaining the normal age of
superannuation. On a considered view of the matter, we hold that there was no error
in the judgment of the Tribunal. We have addressed in detail the history of the
LARSGESS scheme and the doubt expressed on its validity by the Division Bench
of the Punjab and Haryana High Court in Kala Singh (supra) which eventually led to
the decision of the Union government to terminate the scheme. While noticing the
above backdrop, the three judge Bench of this Court in Manjit (supra) clearly noted
that the Scheme provided an avenue for backdoor entry into service and was
contrary to the mandate of Article 16 which guarantees equal opportunity in matters
of public employment. In this backdrop, the impugned judgment of the High Court of
20
Madras issuing a mandamus for the appointment of the respondent cannot be
sustained.
26 We accordingly allow the appeals and set aside the judgments of the Madurai
Bench of the Madras High Court dated (i) 21 March 2018 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 filed by the respondents before the High Court shall stand
dismissed. There shall be no orders as to costs. Pending application(s) if any stands
disposed.
……….………………………………………………..J.
[Dr Dhananjaya Y Chandrachud]
..…..….………………………………………………..J.
[A S Bopanna]
New Delhi;
January 25, 2022.
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