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2023 DIGILAW 364 (JHR)

Rajendra Choudhary v. State of Jharkhand

2023-03-20

SUBHASH CHAND, SUJIT NARAYAN PRASAD

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ORDER : The instant writ petition, under Article 226 of the Constitution of India, has been filed for quashing and setting aside order dated 13.03.2019 passed by Central Administrative Tribunal, Ranchi, Circuit Bench in O.A. No. 051/00165/2019 by which the relief sought for by the petitioners claiming the benefit under LARSGESS Scheme has been rejected. 2. The brief facts of the case, as per the pleadings made in the writ petition, read as under: The petitioner no. 1, father of petitioner no. 2, was employed as Porter in Danapur Division, East Central Railway and retired from service on 31.10.2013. The Ministry of Railways issued advertisement for appointment to Grade ‘D’ Post on 20.10.2010. The petitioner no. 2, under the Scheme known as ‘LARSGESS Scheme’ which was floated by the concerned respondents on 25.11.2010, made representation before the concerned authorities for appointment on the said post but his representation was rejected vide letter dated 09.07.2018 stating therein that a subsequent amendment has been made vide letter dated 09.12.2010 in LARSGESS Scheme dated 20.10.2020 whereby Railways has changed the minimum qualification as Class X from Class VIII. The petitioner being aggrieved with order dated 09.07.2018 moved before the Central Administrative Tribunal in O.A. No. 51/000820/2018 which was disposed of vide order dated 25.10.2018 granting liberty to the petitioner to submit comprehensive representation before the authority concerned who shall consider the same and pass reasoned order within stipulated period of time. With the liberty aforesaid, the petitioner made detailed representation dated 01.11.2018 before the authority concerned. The authority concerned passed reasoned order dated 27.12.2018 denying the claim of the petitioner on the ground that the petitioner does not possess the requisite qualification of Tenth Pass and the father of the petitioner had completed full tenure of his service, as such the petitioner cannot be granted employment as per the amended LARSGESS Scheme. The petitioner, being aggrieved with the order dated 27.12.2018 preferred another application before the Central Administrative Tribunal, Ranchi Bench being O.A./051/00165/2019. The petitioner, being aggrieved with the order dated 27.12.2018 preferred another application before the Central Administrative Tribunal, Ranchi Bench being O.A./051/00165/2019. The learned Tribunal after calling upon the respondent concerned, who came with the plea that very LARSGESS Scheme has been terminated in view of judgments of Hon’ble Punjab and Haryana High Court being affirmed by the Hon’ble Apex Court in S.L.P.(C) No. 508/2018 dated 08.01.2018, disposed of the Original Application vide order dated 13.03.2019 holding that since the petitioner does not hold the eligibility criteria of Class Tenth Pass and the father of the petitioner had retired in usual course of service, therefore the said benefits cannot be extended to the petitioner, which is the subject matter of instant writ petition. 3. Mr. Anil Kumar Sinha, learned senior counsel being assisted by Mr. Raunak Sahay, learned counsel for the petitioners has taken the ground that even though the LARGESS Scheme has been said to be held invalid/unconstitutional by the Court of law but the benefit of it has already accrued in favour petitioner on the ground that the day when such application was filed the LARGESS Scheme was in existence since the same was not declared unconstitutional by any Court of law till date. 4. On the other hand, learned counsel for the respondents-Union of India has submitted that position of law in this regard is that when any policy decision/rule/statute is being held to be invalid it will be said that it was never in existence. Here, in the instant case since the Scheme itself was held invalid and merely because application was filed prior to holding the Scheme to be invalid no right is accrued upon the writ petitioner for consideration of his case on the basis of said Scheme. Learned counsel for the respondents on the basis of aforesaid argument has submitted that the learned Tribunal since considering the aforesaid aspect of the matter has dismissed the Original Application, the impugned order requires no interference by this Court. 5. Learned counsel for the respondents on the basis of aforesaid argument has submitted that the learned Tribunal since considering the aforesaid aspect of the matter has dismissed the Original Application, the impugned order requires no interference by this Court. 5. We having heard learned counsel for the parties and on appreciation of rival submissions, are of the view that the fact which is required to be considered is as to whether the day when the application was filed under LARGESS Scheme and it was not held invalid by the Court of law, in that circumstance any right subsists upon the petitioner for consideration of his case on the basis of said scheme? 6. The law is well settled to the effect that when validity of any mandate either mandated by the statute or policy decision if held to be invalid the implied meaning of the same will be that the said mandate was never in existence. Reference in this regard be made to the recent judgment rendered by Hon’ble Apex Court in State of Manipur and Others vs. Surjakumar Okram and Others reported in 2022 SCC OnLine SC 130, wherein the Hon’ble taking into consideration various judgments on the issue has laid down as under: “28. The principles that can be deduced from the law laid down by this Court, as referred to above, are: I. A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law. II. After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes. III. In declaration of the law, the doctrine of prospective overruling can be applied by this Court to save past transactions under earlier decisions superseded or statutes held unconstitutional. IV. Relief can be moulded by this Court in exercise of its power under Article 142 of the Constitution, notwithstanding the declaration of a statute as unconstitutional. 29. Therefore, it is clear that there is no question of repeal of a statute which has been declared as unconstitutional by a Court. The very declaration by a Court that a statute is unconstitutional obliterates the statute entirely as though it had never been passed. The consequences of declaration of unconstitutionality of a statute have to be dealt with only by the Court.” 7. The very declaration by a Court that a statute is unconstitutional obliterates the statute entirely as though it had never been passed. The consequences of declaration of unconstitutionality of a statute have to be dealt with only by the Court.” 7. This Court on the basis of aforesaid proposition is now proceeding to examine the factual aspect in order to test the legality and propriety of the impugned order. The petitioner made application seeking appointment under LARGESS Scheme when it was in existence but the said scheme was questioned by the Railway Board before the High Court of Punjab & Haryana wherein the said scheme was held invalid/unconstitutional. The matter travelled to the Hon’ble Apex Court wherein the order passed by the High Court was affirmed in SLP(C) No. 508 of 2018 vide order dated 08.01.2018. The Tribunal, after knowing the fact of declaration of the said Scheme to be unconstitutional by the Court of law refused to grant relief and dismissed the Original Application. Even though the application so made by the petitioner was lying pending before the authority concerned there is no statutory obligation upon the respondents to take decision on the basis of said LARGESS Scheme. The Tribunal, taking into consideration the fact that the LARGESS Scheme itself was declared unconstitutional and further the father of petitioner no. 2 retired from service, held that the petitioner no. 2 (applicant) does not have any vested right to claim appointment. Accordingly, the claim of the petitioner was rejected. 8. This Court, taking into consideration the aforesaid aspect of the matter particularly the fact that the LARGESS Scheme itself was declared invalid and further father of petitioner no. 2 retired from service as such the claim of the writ petitioner has become infructuous, is of the view that the order passed by the tribunal requires no interference by this Court. 9. Accordingly, the instant writ petition stands dismissed.