THE STATE OF HARYANA & ORSversusA NISHANTH GEORGE

                        [2022] 16 S.C.R. 289                            289


          THE CHIEF PERSONNEL OFFICER & ORS.                            A
                                 v.
                     A NISHANTH GEORGE
                   (Civil Appeal No. 294 of 2022)
                        JANUARY 25, 2022                                B
        [DR DHANANJAYA Y CHANDRACHUD AND
                 A S BOPANNA, JJ.]
       Service Law – Appointment scheme – Railway Board under
Union Railways Ministry introduced a scheme known as the Safety
                                                                        C
Related Retirement Scheme for the categories of Gangmen and
Drivers – Drivers and Gangmen could seek voluntary retirement –
When the application for retirement is accepted, employment would
be considered for a ‘suitable ward’ of the employee, subject to
suitability – Scheme later modified to Liberalized Active Retirement
Scheme for Guaranteed Employment for Safety Staff (“LARSGESS            D
Scheme”) – Safety staff in the age group of 50-57 years could now
seek voluntary retirement – By notification dated 28 September 2018,
Railway Board decide to terminate the LARSGESS scheme with the
direction that no further appointments should be made under the
Scheme except in cases of “staff who have already retired under
                                                                        E
LARSGESS scheme before 27.10.2017 (but not naturally
superannuated) and appointment of whole wards was not made due
to various formalities, appointment of such of the wards/candidates
can be made with the approval of the competent authority” – A two
judge bench of Supreme Court held that since the Scheme stood
terminated and was no longer in existence, nothing further needed       F
be done in the matter – In a subsequent case, a three-judge bench
of the Supreme Court held that the Union of India had correctly
terminated the scheme; no person could claim a vested right or
legitimate expectation under the scheme; and that all claims based
on the Scheme must now be closed – In the instant case, appeals
                                                                        G
filed against the decisions of High Court whereby the benefit of the
Scheme was extended to the respondents’ fathers on the ground
that they had retired before the cut off date of 27.10.2017 – Held:
It needed determination if the claims of the respondents were covered
by the exception clause in the notification issued on 28 September
2018 – The 28 September 2018 notification clearly envisaged that        H
                                  289
290            SUPREME COURT REPORTS                    [2022] 16 S.C.R.


A     in spite of the termination of the LARSGESS scheme, appointments
      under the scheme could only be made if (i) the staff had voluntarily
      retired (and not naturally superannuated) under the scheme before
      27 October 2017; and (ii) appointment of the ward was not made
      because of ‘formalities’ which remained – The exception does not
      cover all pending claims – The benefit of the LARSGESS Scheme
B
      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 and on
      31 December 2014 respectively – The respondents cannot claim
      any vested right under the scheme – Discretion to accept the request
C     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 – Furthermore, individual cases of the
      respondents’ do not hold any merit.
D
            Allowing the appeals, the Court
            HELD: 1. The notification envisages that in spite of the
      termination of the LARSGESS scheme, appointments under the
      scheme could only be made if (i) the staff had voluntarily retired
E     (and not naturally superannuated) under the scheme before 27
      October 2017; and (ii) appointment of the ward was not made
      because of ‘formalities’ which remained. The exception does not
      cover all pending claims. 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
F     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. [Paras 19,
      20][303-C; 304-B-C]
G           2.1. In one civil appeal, respondent’s 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
H     requirement for some other posts, he could not be considered
 THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTH                   291
                    GEORGE

for appointment. It is clearly evident that on the plain terms of   A
the scheme as it stood, the case of the respondent did not fulfil
the criteria envisaged in the scheme [Para 22][304-H; 305-A-B]
      2.2. In the companion civil appeal, the Tribunal dismissed
the OA filed by the respondent noting that the constitutional
validity of the scheme was suspect and that moreover the father     B
of the respondent had retired on attaining the normal age of
superannuation. On a considered view of the matter, it is held
that there was no error in the judgment of the Tribunal. [Para
25][306-E]
      2.3. Doubt was expressed on validity of the LARSGESS          C
scheme by the Division Bench of the Punjab and Haryana High
Court in Kala Singh 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
clearly noted that the Scheme provided an avenue for backdoor       D
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 issuing a mandamus for the appointment of the
respondent cannot be sustained. [Para 25][306-F-G]
                                                                    E
        State of Karnataka v. Uma Devi (2006) 4 SCC 1; Union
        of India v. Kala Singh 2019 SCC OnLine SC 1965;
        Manjit v. Union of India 2021 SCC OnLine SC 49 and
        Narinder Siraswal v. Union of India 2019 SCC OnLine
        SC 1966 – referred to.
                                                                    F
        Kala Singh v. Union of India (Decision dated 27 April
        2016 of Punjab and Haryana HC in CWP No.7714 of
        2016) – referred to.
                       Case Law Reference
                                                                    G
(2006) 4 SCC 1                  referred to           Para 5
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 294 of
2022.

                                                                    H
292                SUPREME COURT REPORTS                         [2022] 16 S.C.R.


A          From the Judgment and Order dated 21.03.2018 of the High Court
      of Madras, Madurai Bench in W.P. (MD) No. 5046 of 2018.
            With
            Civil Appeal No. 295 of 2022.
B           Ms. Madhavi Divan, Jayant Sud, ASGs, R. Balasubramanian,
      Sr. Adv., Ms. Aakanksha Kaul, Nachiketa Joshi, Ms. Vaishali Verma,
      Amrish Kumar, Anmol Chandan, Kush Chaturvedi, Navanjay Mahapatra,
      Amrish Kumar Sharma, Advs. for the Appellants.
           Ms. Priyadarshini, Nithin Sanavanan, Ms. Arunima Singh,
C     Ms. Manicka Priya S., Karunakar Mahalik, Ms. Ridhima Malhotra, R.
      Nedumaran, Advs. for the Respondent.
            The Judgment of the Court was delivered by
            DR DHANANJAYA Y CHANDRACHUD, J.
            1. Leave granted.
D
             2. In the two appeals which have come up for adjudication there
      is a challenge to the judgments dated 21 March 2018 and 3 September
      2019 of the Madras High Court at its Madurai Bench. Since similar
      questions of law arise in these appeals, both the special leave petitions
      have been tagged and the arguments have been addressed together.
E
             3. On 2 January 2004, the Railway Board under the Union Ministry
      of Railways introduced a scheme known as the Safety Related
      Retirement Scheme for the categories of Gangmen and Drivers. The
      scheme was intended to cover these “two safety categories” since the
      working of Drivers and Gangmen was perceived to have a crucial bearing
F     on train operations and track maintenance. Taking note of the fact that
      the reflexes of the staff recruited to these categories and their physical
      fitness might deteriorate with advancing age, causing a safety hazard,
      the scheme incorporated the following provisions:
            (i)      Drivers and Gangmen in the age group of 55-57 could seek
G                    voluntary retirement;
            (ii)     When the application for retirement is accepted, employment
                     would be considered for a ‘suitable ward’ of the employee;
            (iii)    The employee should have completed 33 years of qualifying
                     service in order to be eligible for seeking voluntary retirement
H
                     under the scheme;
 THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTH                               293
   GEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

      (iv)    The ward of the employee would be considered for                  A
              employment only in the lowest recruitment grade of the
              category from which the employee sought retirement,
              depending upon eligibility and suitability but not in any other
              category;
      (v)     Applications for retirement under the scheme would be             B
              taken once a year with the cut-off date for reckoning the
              eligibility of the employees being 30th June, while the last
              date for submission of requests would be 31st July. The
              eligibility criteria such as age limit and educational
              qualifications will be determined with reference to the cut-
              off date;                                                         C

      (vi)    The discretion to consider the request for retirement will
              vest with the administration depending on the shortage of
              staff, physical fitness and suitability of the ward in the
              category of Driver/Gangman as the case may be;
                                                                                D
      (vii)   Persons who had completed 33 years of service and fell
              within the age group of 55-57 would be considered in the
              first phase followed by those between the age group of 53-
              55 years;
      (viii) Criteria for the eligibility of wards would be as prescribed       E
             for direct recruitment; and
      (ix)    The request of the employee for retirement would be
              considered only if the ward is considered suitable for
              appointment in all aspects including medical fitness.
       4. On 11 September 2010, the Railway Board notified that the             F
benefit of the scheme would be extended to other safety categories of
staff with a grade pay of Rs.1800/- per month. The period of qualifying
service was reduced from 33 years to 20 years and the eligible age
group from 55-57 to 50-57 years for seeking retirement under the scheme.
The nomenclature of the scheme was modified to read as Liberalized
                                                                                G
Active Retirement Scheme for Guaranteed Employment for Safety Staff
(“LARSGESS Scheme”). The qualifying service period of 33 years
and the age group of 55-57 years was to remain unchanged for Drivers.
     5. The Railway Board also reiterated that retirement of an
employee would be considered only if a ward is found suitable in all
                                                                                H
294               SUPREME COURT REPORTS                         [2022] 16 S.C.R.


A     aspects. It was envisaged that the retirement of the employee and
      appointment of the ward should take place simultaneously. The
      LARSGESS Scheme was scrutinised by a Division Bench of the High
      Court of Punjab and Haryana in a decision dated 27 April 2016 in Kala
      Singh v. Union of India1. In that case there was a challenge to an
      order of the Central Administrative Tribunal (“CAT”) by which it
B
      dismissed the original application filed by employees of the Railways
      seeking the postponement of the dates of their voluntary retirement to
      the date on which their wards were appointed by the Railways under
      the LARSGESS Scheme. Justice Surya Kant (as the learned Judge then
      was) speaking for the Division Bench of the High Court observed: -
C              “We have heard learned counsel for the petitioners and are of the
               view that the very foundation of their claim, namely, the Safety
               Related Retirement Scheme, prima facie, does not stand to the
               test of Articles 14 and 16 of the Constitution of India. This policy
               is a device evolved by the Railways to make back-door entries in
D              public employment and brazenly militates against equality in public
               employment.”
             The High Court while dismissing the writ petition directed the
      railway authorities to revisit its validity and sustainability keeping in view
      the principles of equal opportunity and elimination of monopoly in holding
E     public employment before making any appointment under the “offending
      policy”. An application which was moved by the Railways seeking recall
      or review of the order dated 27 April 2016 was dismissed by the Division
      Bench on 14 July 2017 in the following terms:
               “We have heard learned senior counsel for the Railways at a
F              considerable length. It is true that no notice was issued and the
               Railway Authorities were not heard while making prima facie
               observations but the fact of the matter is that the only direction
               issued by this Court was to re-visit the offending policy keeping in
               view the principle of equal opportunity in public employment before
               further appointments are made. Such a direction was necessitated
G              keeping in view the mandate of the Constitution Bench in State
               of Karnataka v. Uma Devi (2006) 4 SCC 1.”
            6. The judgment of the High Court was challenged on behalf of
      the Railways before this Court under Article 136 of the Constitution. On
      1
H         CWP No.7714 of 2016
    THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTH                             295
      GEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

8 January 2018, while disposing of the SLP2, this Court passed the               A
following order: -
         “1. While disposing of SLP (Civil) Diary No.37460/2017 on 8-1-
         2018, this Court has made the following order:
         “Heard learned counsel for the parties.
                                                                                 B
         Delay condoned.
         Since the direction in the impugned order is only to re-visit the
         Scheme in question, no interference is called for at this stage.
         The Petitioner(s) may take a conscious decision in the
         matter within a period of six weeks from today.                         C
         If any party is affected by the decision taken, such party may
         take remedy against the same in accordance with law.
         The special leave petition is, accordingly, dismissed.
         Pending application(s), including application for intervention, shall
                                                                                 D
         also stand disposed of.”
                                                      (emphasis supplied)
        7. On 26 September 2018, the Railway Board notified its decision
to terminate the LARSGESS scheme in view of the observation of the
Punjab & Haryana High Court in Kala Singh (supra). The notification              E
is as follows:
         “Sub: Termination of the LARSGESS Scheme in view of directions
         of Hon’ble High Court of Punjab and Haryana and the orders of
         Hon’ble Supreme Court of India in SLP(C) No.508/2018 dated
         08.01.2018.                                                             F
         Ref: Board’s letter of even number dated 27.10.2017.
         The Hon’ble Punjab and Haryana High Court in its judgment dated
         27.04.16 in CWP No.7714 of 2016 had held that the Safety Related
         Retirement Scheme 2004 (later renamed as the Liberalised Active
         Retirement Scheme for Guaranteed Employment for Safety Staff            G
         {LARSGESS}, 2010) “prima facie” does not stand to the test
         of Article 14 and 16 of the Constitution of India.” It had
         directed “before making any appointment under the offending

2
    SLP(Civil) Diary No.37460 of 2017                                            H
296      SUPREME COURT REPORTS                         [2022] 16 S.C.R.


A     policy, let its validity and sustainability be revisited keeping
      in view the principles of equal opportunity and elimination
      of monopoly in holding public employment.” Thereafter, in its
      judgment dated 14.07.17 (Review Petition RA-CW-330-2017 in
      CWP No.7714 of 2016), the Hon’ble High Court reiterated its
      earlier direction and stated “such a direction was necessitated
B
      keeping in view the mandate of the Constitution Bench in State of
      Karnataka Vs. Uma Devi, (2006) 4 SCC 1.”
      1.1 In the Appeal against the judgment of the Hon’ble High Court
      of Punjab & Haryana, the Hon’ble Supreme Court of India, while
      disposing of the SLP(C) No.508/2018 vide its order dated 8.01.18,
C     declined to interfere with the directions of the High Court.
      2. In compliance with the above directions, Ministry of Railways
      have revisited the scheme duly obtaining legal opinion and consulted
      Ministry of Law & Justice. Accordingly, it has been decided to
      terminate the LARSGESS Scheme w.e.f. 27.10.2017 i.e. the date
D     from which it was put on hold. No further appointments should
      be made under the Scheme except in cases where
      employees have already retired under the LARSGESS
      Scheme before 2710.17 (but not normally superannuated)
      and their wards could not be appointed due to the Scheme
E     having been put on hold in terms of Board’s letter dated
      27.10.17 though they had successfully completed the entire
      process and were found medically fit. All such appointments
      should be made within the approval of the competent authority.
      3. Please acknowledge receipt.”
F                                                 (emphasis supplied)
      Subsequently on 28 September 2018, the following decision was
      notified by the Railway Board:
         “In supersession to Railway Board’s letter No. E(P&A)I-2015/
         RT-43 dated 26.09.2018, it is stated that while the LARSGESS
G
         Scheme continues to be on hold with effect from 27.10.2017
         on account of various court cases to impart natural justice to
         the staff who have already retired under LARSGESS
         scheme before 27.10.2017 (but not naturally
         superannuated) and appointment of whole wards was not
H        made due to various formalities, appointment of such of
    THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTH                             297
      GEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

          the wards/candidates can be made with the approval of                  A
          the competent authority.”
                                                      (emphasis supplied)
       In the above backdrop, the following decision was taken on 5
       March 2019 with regard to the appointment of wards under the
       LARSGESS Scheme where formalities were completed before                   B
       27 October 2017:
          “2. As regards the cases where the wards had completed all
          formalities including Medical examination under LARSGESS
          Scheme prior to 27.10.2017 and were found fit, but the
          employees are yet to retire, the matter is pending consideration       C
          before the Hon’ble Supreme Court and further instructions
          would be issued as per directions of the Hon’ble Court.”
       Consequently, it appears that an application3 was moved before
       this Court in Union of India v. Kala Singh4. By an order dated 6
       March 2019, a two-Judge Bench of this Court observed:                     D
          “3. Since the Scheme stands terminated and is no longer in
          existence, nothing further need be done in the matter.”
      8. In Manjit v. Union of India5, the jurisdiction of this Court was
invoked under Article 32 of the Constitution seeking a mandamus directing
                                                                                 E
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
                                                                                 F
       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        G
       2017 (the date of termination of the Scheme) and were found fit,

3
  IA 18573/2019, in Miscellaneous Application No(s). 346/2019 in Miscellaneous
Application No(s).1202/2018 I Petition for Special Leave to Appeal No.508/2018
4
  2019 SCC OnLine SC 1965
5
  2021 SCC OnLine SC 49                                                          H
298              SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A             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
B
              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
C             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.
D            10. At this stage, it would be material to note that in Narinder
      Siraswal v. Union of India6, 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
E     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). In this backdrop, it
      becomes necessary now to advert to the facts of the two appeals.
             11. (I) SLP (C) 906 of 2021:- The father of the respondent was
F     a Senior Trackman in Southern Railway pursuant to his appointment on
      7 February 1988. On 2 December 2010, he submitted an application for
      voluntary retirement under the LARSGESS Scheme. The application
      for voluntary retirement was returned by the Senior DPO, Madurai
      Division on 11 April 2011 on the ground that in terms of the date of birth
      furnished in the application (16 February 1954), the employee was
G     overage on the cut-off date, i.e., on 1 July 2011. The respondent’s father
      submitted a second application on 28 January 2014. On 31 December
      2014, the employee retired and received his retirement benefits. The
      third application was submitted on 18 April 2015, seeking reconsideration

      6
H         2019 SCC OnLine SC 1966
  THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTH                               299
    GEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

of the rejection of the first application on the ground that the date of birth   A
in the first application had been wrongly recorded. An OA was filed
before the Madras Bench of the CAT in 2017 seeking a direction to
provide employment to the respondent under the LARSGESS scheme.
It was submitted that when the first application was made, the
respondent’s father was within the age limit but the application was
                                                                                 B
wrongly rejected due to miscalculation of age. The counsel for Railways
had submitted that the application was made on 28 January 2014, in
response to the notification issued in 2014. As on 1 January 2014, the
respondent’s father was over 57 years old, irrespective of whether his
date of birth is considered as 16 February 1954 or 16 December 1954.
The OA was dismissed on 11 December 2017 with the following                      C
observations:
       “4. As the constitutional validity Scheme is suspect and no
       appointments are being made under the Scheme, it is not possible
       to give any directions to the Respondents to consider the case of
       the Applicant. In any case, it is not in dispute that the Applicant’s     D
       father retired only on superannuation and not before the age of 57
       years. Therefore the question of the applicant being appointed
       under the scheme never arose.”
       12. The respondent challenged the judgment of the Tribunal under
Article 226 of the Constitution. By its judgment dated 3 September 2019,         E
the High Court observed that the date of birth of the father of the
respondent should be reckoned as 16 December 1954. The High Court
observed that in view of the nature of the employment of the respondent’s
father, he should not be made to suffer for an inadvertent mistake. Hence,
the application dated 2 December 2010 which had been received on 7
December 2010 was held to be well within the age limit prescribed under          F
the LARSGESS Scheme. The High Court also held that though the
scheme was terminated, since the respondent’s father superannuated
on 1 January 2015 prior to 27 January 2017, the benefit of the scheme
could be extended to him in terms of the notification dated 28 September
2018.                                                                            G
       13. (II) SLP(C) No.1417 of 2019:- The father of the respondent
was working as Senior Trolley man in Southern Railways. On 29
September 2011, he opted for voluntary retirement under the LARSGESS
scheme and sought the appointment of the respondent. The respondent
qualified in the written examination. On 10 April 2012, the respondent           H
300            SUPREME COURT REPORTS                           [2022] 16 S.C.R.


A     was informed that he was found unfit in class AYE THREE but was
      found fit in class CEE ONE and below. He was informed that the
      acceptable medical classification for the post of Trackman under the
      rules was AYE THREE and so he was medically unfit for appointment
      to the post of Trackman under the scheme. The respondent appealed
      for constituting a Medical Board. On 4 January 2013, the Medical Board
B
      after examining the respondent, found him ineligible for appointment to
      the post of Trackman. The respondent submitted a representation to the
      Grievance Cell of Southern Railways to consider his claim for
      appointment as Trackman. The representation was rejected by a letter
      dated 12 December 2013. The respondent moved the Madras Bench of
C     the CAT praying for his appointment under the Scheme. The Tribunal
      disposed of the case on 1 April 2016, directing the Railways to consider
      his case for appointment for any post of CEE ONE and below. The
      Tribunal by its judgement observed:
            “8. It is not disputed that the applicant’s father is still in service.
D           The applicant’s family cannot be said to be in immediate need of
            his support. His appointment can be considered under the scheme
            which permits an employee to take VRS and request for
            appointment of an eligible ward. In this the respondent also agreed
            that the applicant’s ward is medically fit for the post of CEE ONE
            for which the applicant has very much agreed. Hence the
E           respondent is directed to act accordingly and simultaneously within
            six weeks on receipt of copy of the order.
            9. In view of the fact that Respondents have admitted that applicant
            satisfied in CEE ONE and below post, therefore, he can be
            considered for any such post under the said category. On such
F           considerations, suitable orders can be passed within six weeks
            from the date of receipt of copy of this order.
             14. The Divisional Office of Southern Railway perused the files
      of the respondent to determine the feasibility of his appointment in CEE
      ONE posts and below. The claim of the respondent was rejected on 31
G     May 2016 in view of the notification of the Railway Board dated 2 January
      2004 governing the LARSGESS scheme to the effect that the ward of
      the employee must be considered for appointment only in the lowest
      recruitment grade from which the employee seeks retirement. Since the
      respondent was found to be medically unfit for appointment in the category
H     of Trackman and his father was due for retirement from service on 31
 THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTH                               301
   GEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

May 2016, the claim was rejected. The respondent once again moved               A
an OA before the Tribunal. The Tribunal by its judgement dated 24 March
2017 noted that the respondent was declared to be unfit in the medical
examination for the post of Trackman. However, the Tribunal observed
that its earlier order on 1 April 2016 had recorded that the respondent
was medically fit for the post of CEE ONE and below. The Tribunal
                                                                                B
accordingly directed the Railways to consider the respondent in a post
according to his medical fitness (CEE ONE and below). In 2017, the
respondent instituted a petition under Article 226 of the Constitution before
the High Court for a mandamus directing compliance with the order of
the Tribunal dated 24 March 2017. The High Court by its judgement
dated 14 November 2017 directed the implementation of the judgement             C
of the Tribunal. The Divisional Officer of the Southern Railway issued a
communication on 17 January 2018 negating the claim of the respondent
on the ground that the High Court of Punjab and Haryana had held that
the LARSGESS Scheme was contrary to the provisions of Articles 14
and 16 of the Constitution. The claim was also rejected on the ground
                                                                                D
that the respondent could not be appointed for the following reasons:
      (i) The father of the respondent had retired on superannuation on
      31 May 2016 as Senior Trackman; and that a coordinate bench of
      the Madras High Court while deciding Writ Petition No. 1040/
      2017 had declined relief to a similarly placed employee who had
      continued to work until the date of superannuation; and                   E

      (ii) In terms of the Railway Board’s letter dated 2 January 2004,
      the ward could be considered for appointment only in the lowest
      recruitment grade of the category from which the employee seeks
      retirement.
                                                                                F
       15. The respondent instituted a writ petition before the High Court.
The High Court by its judgement dated 31 March 2018, came to the
conclusion that the rejection of the claim was in disregard of the order of
the Tribunal dated 24 March 2017. Accordingly, the petition was allowed
by directing the Railways to comply with the order dated 24 March
2017, granting appointment to the respondent in any post in CEE ONE             G
and below categories. The judgements of the High court in the two
cases have given rise to the present appeals.
      16. While considering the merits of the appeal, it becomes
necessary to note at the outset that the LARSGESS Scheme introduced
                                                                                H
302            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     by the Railways was considered in the judgement of a Division Bench
      of the Punjab and Haryana High Court in Kala Singh (supra). The High
      Court found that the scheme was a device evolved by the Railways to
      make back door entries in public employment and that it brazenly militated
      against equality in public employment. The High Court directed the
      railway authorities to revisit the validity of the scheme before making
B
      any appointments bearing in mind the principles of equal opportunity and
      the elimination of monopoly in public employment. A review petition was
      dismissed by the High Court. An SLP against the judgment of the Punjab
      and Haryana High Court was dismissed by this Court on 8 January
      2018.
C            17. In the meantime, a decision was taken by the Railway Board
      on 26 September 2018, after seeking legal opinion from the Union Ministry
      of Law and Justice, to terminate the scheme with effect from 27 October
      2017 which was the date on which it was put on hold. The Railway
      Board directed that no further appointments would be made under the
D     scheme except in those cases where employees had already retired
      under the scheme before 27 October 2017 (but had not “naturally
      superannuated”) and their wards could not be appointed despite
      successfully completing the entire process due to the scheme having
      been held in abeyance.
E             18. On 28 September 2018, the earlier decision was superseded
      by directing that in spite of the termination of the scheme, appointments
      of wards could be made with the approval of the competent authority in
      the case of staff who had retired before 27 October 2017 under the
      LARSGESS scheme (but not on attaining the normal age of
      superannuation) but in whose case appointments of wards was not made
F     due to “various formalities”. In Union of India v. Kala Singh (supra) a
      two judge Bench of this Court in its order dated 6 March 2019, observed
      that since the scheme stood terminated and was no longer in existence
      “nothing further need be done in the matter”. In Narinder Siraswal
      (supra) which was decided on 26 March 2019, the two judge Bench of
G     this Court permitted the petitioners who claimed the benefit of the scheme
      which was in existence when the applications were filed to move an
      appropriate representation. In Manjit (supra), a three judge Bench of
      this Court declined to entertain a petition under Article 32 on the ground
      that a conscious decision had been taken by the Union of India to terminate
      the scheme. The three judge Bench observed that the scheme was
H
    THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTH                               303
      GEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

fundamentally contrary to the principles of equality of opportunity in             A
public employment under Article 16 of the Constitution. Noting that the
decision of the Union Government to discontinue the scheme was justified,
the Court observed that all claims based on the scheme must now be
closed.
        19. Now it is in this backdrop that it is necessary to consider the        B
facts insofar as they pertain to the two cases. Before dealing with the
individual facts of the case, it must be determined if the claims of the
respondents are covered by the exception clause in the notification issued
on 28 September 2018. The notification clearly envisages that in spite of
the termination of the LARSGESS scheme, appointments under the
scheme could only be made if (i) the staff had voluntarily retired (and            C
not naturally superannuated) under the scheme before 27 October 2017;
and (ii) appointment of the ward was not made because of ‘formalities’
which remained. The exception does not cover all pending claims. As a
matter of fact, another Division Bench of the Madras High Court7 on 19
January 2017 had held that an employee who received service benefits               D
till the date of superannuation, was not entitled to make a claim under
the LARSGESS scheme. It was held:
          “Mr. L. Chandrakumar, learned counsel appearing for the
          petitioner has objected the dismissal of the original application
          stating that retirement, pending adjudication of the original            E
          application, cannot be a ground for rejection of the claim for
          compassionate ground under the subject scheme. As rightly held
          by the learned Tribunal, there was no pre-mature retirement on
          the part of the first petitioner and the first petitioner also did not
          choose to file any appeal against the proceedings dated 12.09.2012
          as directed by the authorities. The first petitioner, having continued   F
          to work and enjoy the services benefits till the date of
          superannuation cannot be allowed to make use of subject scheme
          seeking appointment. The scheme, as such, cannot be invoked, in
          the case on hand as to defeat the purpose, in letter and spirit of
          the object behind formulating the scheme.”                               G
       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

7
    Writ Petition 1040 of 2016                                                     H
304            SUPREME COURT REPORTS                            [2022] 16 S.C.R.


A     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
B
      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
C     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
D     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
E     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. As a matter of fact, clause (6) of para 2
      of the letter of the Railway Board dated 2 January 2004 clearly stipulates
      that:
F           “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.”
G           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
H     scheme will remain unchanged. The respondent’s father was a Trackman.
 THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTH                             305
   GEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

For the respondent to have been appointed under the scheme, he must           A
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
                                                                              B
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        C
pending vigilance case against the respondent’s 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         D
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 respondent’s 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
respondent’s father should be reckoned as 16 December 1954, in which          E
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.                                               F
       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    G
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
                                                                              H
306             SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     application was submitted by the respondent’s 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
B
      application submitted by the respondent’s 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
C     prior to the circular would not be considered. On the rejection of the
      application of the respondent’s 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
D
      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
E     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
F     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
G     issuing a mandamus for the appointment of the respondent cannot be
      sustained.
             26. We accordingly allow the appeals and set aside the judgments
      of the Madurai Bench of the Madras High Court dated (i) 21 March
      2018 in WP (MD) No. 5046 of 2018; and (ii) 3 September 2019 in WP
H
  THE CHIEF PERSONNEL OFFICER & ORS. v. A NISHANTH                                307
    GEORGE [DR DHANANJAYA Y CHANDRACHUD, J.]

(MD) No. 6452 of 2018 and companion cases. The writ petitions filed               A
by the respondents before the High Court shall stand dismissed. There
shall be no orders as to costs. Pending application(s) if any stands disposed.

Devika Gujral and Amarendra Kumar                              Appeals allowed.
(Assisted by : Pragya Samal, LCRA)
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