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Gujarat High Court · body

2016 DIGILAW 1272 (GUJ)

Union of India v. Baria Amar Sing

2016-07-08

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. As common question of law and facts arise in this group of petitions, all these petitions are disposed of by this common judgment and order. 1.1 For the sake of convenience, Special Civil Application No. 2684/2016 is considered and treated as lead matter and therefore, the facts in the said Special Civil Application are considered. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as "Tribunal") in Original Application No. 415/2015 by which while dismissing the said O.A. preferred by the respondent Nos. 1 and 2 herein - original applicants, the learned Tribunal has quashed and set aside the scheme adopted by the Railway Department for appointing wards of the staff under 57 years known as Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff and other corollary schemes akin to the same issued by the Railways and further directing the Railway Board, by its or through its constituent authority to issue show-cause notice who are benefited under the aforesaid scheme to find out whether they have in any way escaped the bar of Article 13 and of the shadow Article 14, 15 and 16 and pass appropriate speaking order within 6 months after hearing the concerned, Railway authorities have preferred the Special Civil Application No. 2684/2016. Similar orders are passed by the learned Tribunal in respective Original Application Nos. 420/2015 against which Special Civil Application No. 2687/2016 is filed by the Railway Authority as well as Original Application Nos. 42/2015, 327/2014, 100/2015, 99/2015, 301/2015, 322/2013, 319/2013, 271/2013, 365/2013, 272/2013, 367/2013, 323/2013, 366/2013, 326/2013, 276/2013, 333/2014, 329/2014, 350/2014, 328/2014, 273/2013, 225/2013, 229/2015 and 302/2015 against which Special Civil Application Nos. 3215/2016 to 3235/2016, 8336/2016 and 8338/2016 are filed by the respective original applicants. Special Civil Application No. 2684/2016 3. Facts leading to the present Special Civil Application in nut-shell are as under: "[3.1] That the Railway Board formulated a scheme under the name and style "Safety Related Retirement Scheme of Drivers and Gangman" vide RBE No. 4/2004. That thereafter the said scheme underwent modification vide RBE No. 131/2010. Subsequently, the said scheme was modified on 07.10.2010. That thereafter the scheme was modified further vide RBE No. 99/2011 dated 28.06.2011. That thereafter the said scheme underwent modification vide RBE No. 131/2010. Subsequently, the said scheme was modified on 07.10.2010. That thereafter the scheme was modified further vide RBE No. 99/2011 dated 28.06.2011. Subsequently, the nomenclature of the scheme got modified as Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (hereinafter referred to as "LARSGESS"). On considering the aforesaid scheme it appears that the scheme is restricted to specify safety category staff taking into consideration their special nature of duties by giving them option to these employees to avail voluntary retirement and the vacancy occurring on voluntary retirement of such employees under the scheme shall be filled up by their ward subject to their suitability. [3.2] That under the said scheme such staff under 57 years of age on 30.06.2011 were eligible to apply for appointment of their wards with their willingness to retire. That applications were invited with last date of 10.01.2012 from the within staff. That the respondent No. 1 herein - original applicant No. 1 applied for the option accordingly. That two exams were conducted by the Railway for eligible awards. That the result of the selection of the scheme was declared on 18.06.2012. That the original applicants were denied the benefit under the aforesaid scheme and therefore, the respondent No. 2 herein - original applicant No. 2 - son of employee preferred Original Application No. 185/2014 before the learned Tribunal which was dismissed vide order dated 10.02.2015 on the ground that the said O.A. is not maintainable as his father is not impleaded in the application. However, liberty was reserved to file separate O.A. impleading both father and son. That thereafter respondent Nos. 1 and 2 herein - father and son preferred O.A. No. 415/2015 before the learned Tribunal seeking the appointment of the original applicant No. 2 in place of original applicant No. 1 - employee under the aforesaid scheme. Therefore, as such the original applicants prayed for appropriate order to grant the benefit under the LARSGESS. By impugned judgment and order not only the learned Tribunal has dismissed the said O.A. but has declared the scheme LARSGESS unconstitutional and violative of Articles 14, 15 and 16 of the Constitution of India and thereafter has directed the Railway Board and/or its constituent authority to issue show-cause notice to all other beneficiaries of the scheme. By impugned judgment and order not only the learned Tribunal has dismissed the said O.A. but has declared the scheme LARSGESS unconstitutional and violative of Articles 14, 15 and 16 of the Constitution of India and thereafter has directed the Railway Board and/or its constituent authority to issue show-cause notice to all other beneficiaries of the scheme. [3.3] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal declaring the scheme LARSGESS as unconstitutional and violative of Articles 14, 15 and 16 of the Constitution of India, Railway authority has preferred the Special Civil Application No. 2684/2016. The original applicants whose applications are dismissed have also preferred the respective petitions." 4. Shri Kamal Trivedi, learned Senior Advocate and Advocate General has appeared with Shri Ramnandan Singh and Shri K.M. Parikh, learned advocates on behalf of the Railway Department. Shri Devang Vyas, learned Assistant Solicitor General of India has appeared on behalf of the Union of India. Shri M.S. Rao, learned advocate has appeared on behalf of the petitioners in Special Civil Application Nos. 3215/2016 to 32235/2016 and Shri Gogia, learned advocate appearing on behalf of the petitioners in Special Civil Application Nos. 8336/2016 and 8338/2016. 5. Shri Kamal Trivedi, learned Counsel appearing on behalf of the Railway Authorities has vehemently submitted that as such the impugned judgment and order passed by the learned Tribunal declaring the scheme LARSGESS as unconstitutional is wholly without jurisdiction. It is further submitted by Shri Trivedi, learned Counsel that even the impugned judgment and order passed by the learned Tribunal declaring the scheme LARSGESS as unconstitutional is beyond the scope and ambit of the O.A. filed by the original applicants. It is submitted that as such the original applicants prayed to grant the benefit under the scheme. It is submitted that at the most the learned Tribunal can/could have dismissed the O.A. denying the relief sought in the O.A. It is submitted that in the O.A. in which the original applicants prayed to grant the benefit under the scheme, the learned Tribunal ought not to have declared the scheme unconstitutional more particularly when before the learned Tribunal the scheme LARSGESS was not under challenge and the legality and validity of the LARSGESS was not in question before the learned Tribunal. It is submitted that therefore the learned Tribunal has exceeded in its jurisdiction in examining the validity of the scheme and finally holding the scheme as invalid and unconstitutional in law. 5.1 It is further submitted by Shri Trivedi, learned Counsel appearing on behalf of the Railway Authorities that as such similar orders were passed by the learned Central Administrative Tribunal, Jaipur Bench as well as the Central Administrative Tribunal, Delhi Bench declaring the scheme LARSGESS as unconstitutional and in the writ petitions challenging the orders passed by the learned Tribunal declaring the scheme LARSGESS as unconstitutional, the Division Bench of the Rajasthan High Court as well as the Division Bench of the Delhi High Court had quashed and set aside the orders passed by the learned Tribunal declaring the scheme unconstitutional and has remanded the matter to the learned Tribunal, as no opportunity was given to the Railway Authorities with respect to legality and validity of the scheme and as such no issue was framed by the learned Tribunal with respect to the legality and validity of the scheme. 5.2 It is further submitted that in the present case also, all the parties to the original applicants are taken by surprise when without giving any opportunity to them with respect to legality and validity of the LARSGESS scheme, the learned Tribunal has declared the scheme unconstitutional. Shri Trivedi, learned Counsel appearing on behalf of the Railway Authorities has therefore requested to quash and set aside the impugned orders and remand the matter back to the learned Tribunal. 5.3 It is further submitted by Shri Trivedi, learned Counsel appearing on behalf of the Railway Authorities that as such the Central Administrative Tribunal, Calcutta Bench vide its judgment and order dated 07.08.2015 in O.A. No. 1540/2013 had an occasion to consider the legality and validity of the scheme and has held that LARSGESS is not in violation of Articles 14 and 16 of the Constitution of India. 5.4 It is further submitted by Shri Trivedi, learned Counsel that even otherwise the LARSGESS scheme cannot be said to be unconstitutional and violative of Article 14 of the Constitution of India as held by the learned Tribunal. It is submitted that in the larger public interest and considering the safety and after due deliberation, LARSGESS scheme has been framed which is applicable to the safety related staff only such as Gangman etc. It is submitted that in the larger public interest and considering the safety and after due deliberation, LARSGESS scheme has been framed which is applicable to the safety related staff only such as Gangman etc. It is submitted that therefore while holding the scheme unconstitutional, learned Tribunal as such has not considered the object and purpose of the scheme. It is submitted that if an opportunity would have been given to the department to explain the scheme and/or the object and purpose of the scheme, in that case, the department would have explained the object and purpose of the scheme LARSGESS. Making above submissions and relying upon the decision of the Division Bench of the Rajasthan High Court and Delhi High Court, it is requested to quash and set aside the impugned judgment and order. 6. Learned advocates appearing on behalf of the original applicants have adopted the submissions made by Shri Trivedi, learned Counsel appearing for the Railway Authorities. 7. Heard learned Counsel appearing on behalf of the Railway Authorities and learned advocates appearing on behalf of the original applicants. At the outset it is required to be noted that in the Original Applications, the respective original applicants prayed for the benefit of LARSGESS scheme. While considering the claim of the respective original applicants, the learned Tribunal has without giving any opportunity to the Railways has not only dismissed the original applications but has declared the LARSGESS scheme as unconstitutional and violative of Articles 14 and 16 of the Constitution of India. It is required to be noted that no issue was framed by the learned Tribunal with respect to the legality and validity of the scheme. Even assuming that while considering the relief sought in the main original applications, the learned Tribunal may have jurisdiction to consider the legality and validity of the scheme for which the relief was sought, in that case also, before doing so an opportunity was required to be given to the department to justify the scheme. Even assuming that while considering the relief sought in the main original applications, the learned Tribunal may have jurisdiction to consider the legality and validity of the scheme for which the relief was sought, in that case also, before doing so an opportunity was required to be given to the department to justify the scheme. 7.1 Identical questions came to be considered by the Division Bench of the Rajasthan High Court and Delhi High Court and on the aforesaid ground alone the Rajasthan High Court and Delhi High Court have remanded the matter back to the learned Tribunal to consider the respective original applications afresh after giving opportunity to the department to make submissions with respect to the legality and validity of the scheme LARSGESS. 7.2 Under the circumstances, on the aforesaid ground alone, the impugned judgment and orders passed by the learned Tribunal are required to be quashed and set aside and the matters are required to be remanded to the learned Tribunal to decide the respective original applications afresh after giving opportunity to the department to consider the legality and validity of the scheme. 8. In view of the above and for the reasons stated above and without further entering into the legality and validity of the scheme LARSGESS and without expressing anything on merits with respect to the same, on the ground that no opportunity has been given by the learned Tribunal to the department with respect to the legality and validity of the scheme LARSGESS, impugned judgment and orders passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in respective original applications are hereby quashed and set aside and the respective original applications are remanded to the learned Tribunal to decide such original applications afresh in accordance with law and on merits and to give reasonable opportunity to the department to consider legality and validity of the scheme LARSGESS if at all the learned Tribunal proposes to consider the same. 9. In view of the above and for the reasons stated above, all the petitions are disposed of. Impugned judgment and orders passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application Nos. 9. In view of the above and for the reasons stated above, all the petitions are disposed of. Impugned judgment and orders passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application Nos. 415/2015, 420/2015, 42/2015, 327/2014, 100/2015, 99/2015, 301/2015, 322/2013, 319/2013, 271/2013, 365/2013, 272/2013, 367/2013, 323/2013, 366/2013, 326/2013, 276/2013, 333/2014, 329/2014, 350/2014, 328/2014, 273/2013, 225/2013, 229/2015 and 302/2015 are hereby quashed and set aside and matters are remanded back to the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad. All the original applications stand restored and parties are directed to appear before the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad on 01.08.2016 and it is expected that the learned Tribunal would decide the respective original applications as expeditiously as possible, preferably within 4 months from today. Rule is made absolute to the aforesaid extent in each of the petitions. In the facts and circumstances of the case, there shall be no order as to costs. Before parting with the present order, we may clarify that we have not expressed anything on merits with respect to the legality and validity of the scheme LARSGESS and the impugned judgment and orders are set aside only on the aforesaid ground. Therefore, the issue of legality and validity of the scheme LARSGESS will be at large before the learned Tribunal which shall be dealt with and considered in accordance with law and on merits and after giving opportunity to all the concerned.