Case: The Chief Personnel Officer &amp; Ors Vs. A Nishanth George

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 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 respondents 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 respondents 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 assuming that the date of birth was 16 December 1954, the respondents 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 respondents 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 respondents 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 respondents father was rejected on the ground that he would be 57 years 4 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 respondents 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 Madras issuing a mandamus for the appointment of the respondent cannot be sustained.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. In Manjit v. Union of India 2021 SCC OnLine SC 49, 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 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 India 2019 SCC OnLine SC 1966, 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).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 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.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 respondents 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 respondents 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 assuming that the date of birth was 16 December 1954, the respondents 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 respondents 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.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 respondents father was rejected on the ground that he would be 57 years 4 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 respondents 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 Madras issuing a mandamus for the appointment of the respondent cannot be sustained.