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Judgment
Briefly stated, the facts of the current O.A. are that the applicant was appointed as Gangman under PWI, Panipat w.e.f. 29.05.1981 and w.e.f. 17.06.1996 he was posted as Electric Khallasi under TRD Department under SSE/OHE/Panipat. The applicant was posted on Tower Wagon for maintenance of OHE on Railway Track as Electric Khallasi w.e.f. 05.07.2003 and respondents called the applicant as Auto Cleaner.
Railway introduced the Safety Related Retirement Scheme for Drivers and Gangmen vide letter dated 02.01.2004 by which Drivers and Gangmen of 50 to 57 years may seek retirement and employment to a suitable ward of the employee, whose application for retirement under the Scheme is accepted, for consideration. The Railways, vide order dated 11.09.2010 decided to extend the benefits of earlier Scheme dated 02.01.2004 to other safety categories of staff with a GP of Rs.1800/- PM and also decided to modify the nomenclature of the Scheme as Liberalized Active Retirement Scheme for Guaranteed Employee of Safety Staff (LARSGESS) in which two things were modified. Firstly, the benefits were extended to other categories, and secondly, the qualifying service was reduced from 33 years to 20 years, and, the eligibility from 55-57 years, to 50-57 years for seeking retirement under the Scheme. W.e.f. 01.01.2014, the Railway further included five more categories under the LARSGESS Scheme, including TDR staff working on Track and Electrical Power Staff. The DRM office invited the applications vide letter dated 03.04.2014 upto 28.04.2014. Since the applicant fulfilled all the conditions, he applied through proper channel in the first cycle of 2014. The application of the applicant No.1 was duly forwarded to the Divisional Office.
The respondent No.2 created a new designation i.e. Auto Cleaner whereas there is no such post in Railway and referred the request of the applicant to Northern Railway vide letter dated 29.06.2015 for clarification. Instead of clarifying the position the Northern Railway directed to consider the Railway Board circular for the purpose. In the second cycle of 2015 and first cycle of 2016, the applicant again submitted his request for Voluntary retirement. The respondent No.2 (vide letter dated 05.07.2016) again referred the matter to the Northern Railway and sought clarification whether "kindly clarify if he is eligible for VRS under S, while he is TRD staff in GP Rs.1800/- his designation of Auto Cleaner is not mentioned as per 2010 letter."
The applicant states that respondent No.2, in the letter dated 05.07.2016 has admitted that the applicant is TDR staff, who has been included under S as per Circular dated 18.12.2015. It is further submitted that there is no clarification issued in respect of DRM office letter dated 05.07.2016 but under RTI Act, 2005, the Northern Railway vide letter dated 06.09.2016 clarified the categories of OHE/TRD in which only post of Khallasi is mentioned and there is no post of Auto Cleaner.
Aggrieved, the applicant has filed the current O.A. seeking the following relief:-
"That the Hon'ble Tribunal may graciously be pleased to pass an order declaring to the effect that the whole action of the respondents not accepting the request of the applicant No.1 for his Vol. Retirement under the Liberalized Active Retirement Scheme for Guaranteed Employee for Safety Staff (S) is totally illegal, arbitrary and discriminatory and consequently, pass an order directing the respondents to consider and to accept the request of the applicant No.1 for Vol. Retirement under Liberalized Active Retirement Scheme for Guaranteed Employee for Safety Staff (S) with all the consequential benefits including the appointment of applicant No.2 against the suitable post."
In the counter-reply, the respondents stated that Hon'ble High Court/Punjab & Haryana vide orders dated 27.04.2016 in CWP-7714/2016 and through orders dated 28.07.2016 passed by CAT/Bangalore Bench in OA-1332 to 1372/2014, OA-1373 to 1380/2014, OA-122-123/2015, OA-758/2015 and OA-1599 to 1600/2015 on S Scheme, a reference was made to Railway Board seeking guidelines in reference to above orders of Hon'ble High Court. Till further directions are received from Railway Board, it has been decided by the competent authority that all such cases coming within the purview of Scheme be process and carried out as per laid down instructions on the subject but offer of appointment should not be given till reply from Railway Board is received. In view of the same, the current O.A. is not maintainable and is liable to the dismissed.
I have carefully gone through the record and considered rival submissions.
The Constitutional validity of the LARSGESS Scheme came up before various Benches of this Tribunal, including the Principal Bench, New Delhi, and the Scheme was quashed by the Principal Bench by holding that the same is unconstitutional. However, the said decision was set aside and remanded back by Hon'ble High Court of Delhi on technical grounds. Similar is the situation with certain other Bench decisions on the validity of the Scheme.
On a reference, a Full Bench of this Tribunal in OA-1540/2013, dated 07.08.2015 in R. Krishna Rao vs. Union of India & Others, upheld the legality and validity of the Scheme.
It is brought to my notice that in CWP No.7714/2016, the Hon'ble High Court of Punjab & Haryana at Chandigarh by its judgment dated 27.04.2016 in Kala Singh and Others vs. Union of India & Others held that the LARSGESS Scheme does not stand the test of Articles 14 and 16 of the Constitution of India and that the policy is a device evolved by the Railways to make back-door entries in public employment and brazenly militate against equality in public employment. The Railway authorities were directed to revisit the Scheme before making any appointment, keeping in view the principles of equal opportunity and elimination of monopoly in holding public employment.
The SLP (C) No.4482/2017 filed against the decision in Kala Singh & Others (supra) was dismissed by the Hon'ble Apex Court by its Order dated 06.03.2017. Thereafter, the Review Application No. RA-CW-330/2017, dated 14.07.2017 filed by the Railways in Kala Singh & Others (supra) before the Hon'ble High Court of Punjab and Haryana was also dismissed on 14.07.2017. The applicant has failed to show any decision of any Hon'ble High Court or Hon'ble Supreme Court where the validity of Scheme was upheld.
It is relevant to note that an identical Scheme like S, framed for the benefit of the employees of the Singareni Collieries Company Limited, was declared to be violative of Articles 14 and 16 of the Constitution of India by the Hon'ble High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh, and the said decision was upheld by the Hon'ble Apex Court by its Order dated 17.04.2017 in SLP-11566/2017 (Telangana Boggu Gani Karmika Sangam vs. K. Satish Kumar and Others).
In the circumstances and in view of the decision of the Hon'ble Supreme Court in Telangana Boggu Gani Karmika Sangham (supra) and for the aforesaid reasons, the present OA is dismissed being devoid of merit. No costs.