Central Administrative Tribunal, Mumbai Bench, Mumbai

1 OA.644/2014

CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI.

O.A.211/00644/2014

Dated this Wednesday the 14th day of November, 2018.

Coram : Dr.Bhagwan Sahai, Member (A) Shri R.N. Singh, Member (J).

1. Shri Samadhan Fakira Sirsat, Age 60 years, retired Railway servant worked under Sr. Section Engineer (Signal) (Main), C. Rly, Akola. Near Gajanan Maharaj Mandir, Ward No.1 Nandura, Buldhana, Tal. Nandura, Dist. Buldhana Pin Code – 443 404.

2. Shri Subash Samadhan Sirsat, Age 32 years, unemployed, Residing at Tathagat Nagar, Near Gajanan Maharaj Mandir, Ward No.1 Nandura, Buldhana, Tal. Nandura, Dist. Buldhana Pin Code – 443 404. ..Applicants.

( By Advocate Ms.Vaishali Agane ).

Versus

1. The Union of India, through the General Manager, Central Railway, CSTM, Mumbai – 400 001.

2. The Divisional Railway Manager (P), Central Railway, Bhusawal Division, Bhusaval-425201. ..Respondents.

( By Advocate Shri R.R. Shetty ).

Order reserved on : 06.09.2018 Order delivered on : 14.11.2018

O R D E R Per : Dr.Bhagwan Sahai, Member (A).

1. Through this O.A. the applicants seek declaration that the applicant No.1 is entitled for 2 OA.644/2014 benefit of voluntary retirement and applicant No.2 for employment in the Railway, and awarding of cost of this application.

2. Facts of the case stated in brief:-

2(a). The applicant No.1 was appointed as Khalasi in S&T Section of Central Railway on 26.10.1984. He attained the age of 50 years and 57 years on

10.06.2004 and 10.06.2011 respectively.

2(b). The applicant No.1 claims that he is governed by Railway Board's orders dated 02.01.2004,

11.09.2010, 28.06.2011, 15.07.2011, 03.01.2012 and

23.07.2013 mainly on the subject of Safety Related

Retirement Scheme for Drivers and Gangmen, and accordingly he applied for grant of benefit of voluntary retirement and appointment of his son in his place i.e. applicant No.2. It is further stated that the said Scheme applies to the employees who are working in Safety category with Grade Pay of

Rs.1800/-. The applicant No.1 made a claim for compassionate appointment to his son under the

LARSGESS Scheme in year 2010 and it was forwarded by his Section to the respondents vide letters dated

12.03.2011, 12.03.2011 and 27.01.2012 (Annex A-7, A-

8 and A-9). These applications/letters are still pending with them. The applicant No.1 has retired on 30.06.2011. Hence the O.A.

3. The learned counsel for the parties were 3 OA.644/2014 heard and the case record has been carefully perused.

4. On the claim for grant of benefit under

LARSGESS, we have recently decided some cases, including O.A.2084/2014 of Suresh Daulat Tayade Vs.

Union of India decided on 14.04.2018 in view of the recent decision of the Co-ordinate Bench of this

Tribunal at Chandigarh, holding that the scheme itself was unconstitutional. The decision in the OA

No.42/2017 of the Chandigarh Bench was challenged in the Hon'ble High Court of Punjab and Haryana, which upheld the orders of the Tribunal. The respondents then filed an SLP before the Hon. Apex Court which also upheld the decision of the High Court and dismissed the SLP giving liberty to the petitioners-

Railways to seek review of the decision of the concerned High Court. The Review Application

No.330/2017 in WP(C) No.7714/2016 was considered by the Punjab and Haryana High Court and dismissed by order dated 14.07.2017 with these observations:-

“This application has been moved by Railways seeking recall / review of the court order dated 27.04.2016 wherein this Court made some prima facie adverse comments on the validity, legality and propriety of “Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS), 2010” and directed the Railway authorities to re-visit the said policy keeping in view the principles of equal opportunity and 4 OA.644/2014

elimination of monopoly in public employment before making further appointment thereunder.

It is pertinent to mention that under the said policy, Railway employees working as Safety Staff are entitled to seek voluntary retirement and seek appointment of their wards as per their eligibility. This Court found that such a policy was prima facie violative of Articles 14 and 16 of the Constitution of India. Hence, the necessary directions were issued.

We have heard learned senior counsel for the respondents 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 fact of the matter is that the only direction issued by this Court was to re-visit the offending policy keeping in view the principles 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 Secretary, State of Karnataka & Ors. Vs. Uma Devi (2006) 4 SCC 1.

No case to review / recall the order dated 27.04.2016 is made out.

Dismissed.”

5. In view of the above directions and the liberty granted to the Railways to re-visit the

Scheme, the legal position on this subject stands settled and the present OA cannot proceed further to decide the matter on merits unless the Scheme itself is re-visited and again promulgated in a form that 5 OA.644/2014 is not ultra vires of the Constitution.

6. In these circumstances, the OA is disposed of, granting liberty to the applicant to approach the appropriate forum in the Railways after the

LARSGESS Scheme gets revisited to consider his grievance, if it survives, in accordance with law.

No order as to costs.

(R.N. Singh) (Dr.Bhagwan Sahai) Member (J). Member (A).