Apex Court disapproves of appointment on basis of LARSGESS Scheme; Reiterates that such scheme was contrary to mandate of Article 16 which guarantees equal opportunity in matters of public employment

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Read Judgment: The Chief Personnel Officer & Ors. V. A Nishanth George

Pankaj Bajpai

New Delhi, January 28, 2022:  While referring to the three judge Bench decision in Manjit v. Union of India, 2021 SCC OnLine SC 49, which clearly noted that the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS 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, the Supreme Court has quashed the judgment of the Madras High Court issuing a mandamus for the appointment of A Nishanth George (Respondent). 

A Division Bench of Justice Dr. D.Y Chandrachud and Justice A.S Bopanna observed that that the constitutional validity of the LARSGESS scheme was suspect and that moreover the father of the respondent had retired on attaining the normal age of superannuation. 

Going by the background of the case, in the year 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, which was intended to cover these “two safety categories” since the working of Drivers and Gangmen was perceived to have a crucial bearing 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 provisions related to their voluntary retirement. Later, in 2010, the Railway Board notified that the benefit of the scheme would be extended to other safety categories of staff with a grade pay of Rs.1800/- per month and 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. 

Later, the nomenclature of the scheme was modified to read as LARSGESS Scheme. The Railway Board also reiterated that retirement of an employee would be considered only if a ward is found suitable in all aspects. The LARSGESS Scheme was however scrutinized 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 India (CWP No.7714 of 2016), wherein there was a challenge to an order of the Central Administrative Tribunal (CAT) by which it 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. 

The High Court while dismissing the 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 public employment before making any appointment under the “offending policy”. The Supreme Court also dismissed the SLP challenging the same. Thereafter, in 2018, the Railway Board notified its decision to terminate the LARSGESS scheme in view of the observation of the Punjab & Haryana High Court. 

Later, the Divisional Office of Southern Railway perused the files of A Nishanth George (Respondent) to determine the feasibility of his appointment in CEE ONE posts and below. The claim of the respondent was however rejected in view of the notification of the Railway Board dated January 2, 2004 since the respondent was found to be medically unfit for appointment in the category of Trackman. The Tribunal however directed the Railways to consider the respondent in a post according to his medical fitness (CEE ONE and below). The matter reached High Court, which directed the implementation of the judgment of the Tribunal. The Divisional Officer of the Southern Railway issued a communication 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. These contrary judgments of the High court in the two cases had given rise to the present appeals. 

After considering the submissions, the Top Court found that the notification issued on 28 September 2018 by the Railways 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 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 however, does not cover all pending claims. 

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”, noted the Top Court.

Speaking for the Bench, Justice Chandrachud found that the respondent’s father was a Trackman, and 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, added the Bench. 

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