J. Palayyan v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 27TH DAY OF JULY 2016/5TH SRAVANA, 1938** **OP (CAT).No. 197 of 2016 (Z)** **-----------------------------** ## **O.A.NO.180/137/2015 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 04.02.2016** ## **PETITIONER(S)/APPLICANT IN OA:** **-------------------------------------------------** **J. PALAYYAN, S/O JOSEPH, PRESENTLY WORKIGN AS SCP KUZHITHURAI RAILWAY STATION, TRIVANDRUM DIVISION, SOUTHERN RAILWAY, (RESIDING AT PRANIVILLAI, PAGOD POST, KANYAKUMARI DISTRICT)** **BY ADV. SRI.E.C.POULOSE** **RESPONDENT(S)/RESPONDENTS IN THE OA: ----------------------------------------------------------------** **1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, PARK TOWN P.O., CHENNAI-3** **2. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM - 695014** **3. THE DEPUTY DIRECTOR ESTT.(P & A)II, RAILWAY BOARD, RAILWAY BHAVAN, NEW DELHI-110001** **BY SRI.C.S.DIAS,SC, RAILWAYS** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 27-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 197 of 2016 (Z)** **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------------------EXHIBIT:P1 TRUE COPY OF O.A.NO. 180/137/2015 FILED BY THE PETITIONER BEFORE THE HON'BLE CENTRL ADMISISTRATIVE TRIBUNAL, ERNAKULM** **EXHIBIT:P2 TRUE COPY OF THE ORDER DATED 4/2/16 IN O.A.180/137/2015 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **RESPONDENT(S)' EXHIBITS** **----------------------------------------** ## **NIL** **//True Copy//** **P.A. To Judge** **Bb** ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** **.................................................... O.P.(CAT.)No.197 of 2016 .................................................... Dated this the 27[th] July, 2016** ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the applicant in O.A.No.137/2015 on the file of the Central Administrative Tribunal, Ernakulam Bench. He has filed the said O.A. seeking an order to quash Annexures A5 and A6 and for a declaration that he is eligible to get the benefit of Liberalised Active Retirement Scheme for Guaranteed Employment for Safety Staff (hereinafter referred to as 'LARSGESS') on the basis of Annexure A3 application and to direct the respondents to consider his son for appointment on the basis of the said declaration. The Tribunal by Ext.P2 order dated 4.2.2016 dismissed the said O.A. holding that the petitioner is not having the minimum qualifying service in the 'safety category' in order to claim the benefit of LARSGESS. Feeling aggrieved by the said order of the Tribunal, the petitioner is before this in this Original Petition seeking interference under Article 227 of the Constitution of India. 2. We heard the arguments of the learned counsel for the petitioner. O.P.(CAT)No.197 of 2016 -2- 3. The pleadings and materials on record would show that the applicant is working as a Sweeper cum Porter at Kuzhithurai Railway Station in Southern Railway Trivandrum Division. In the year 1992, the applicant was engaged by the Railways as Sanitary Cleaner in the Medical Department. While continuing as such, the applicant and others, who have been rendered surplus in the Medical Department and found fit in the medical classification 'A-2' were re-deployed as Sanitary Cleaner cum Porter, vide Annexure A1 office order dated 14.7.2010. Sanitary Cleaner cum Porter/Traffic Porter is a 'safety staff' in the Operating Department of the Railways. 4. While the applicant was continuing as a 'safety staff' in the Operating Department of the Railways, the 2[nd] respondent issued Annexure A2 notification dated 5.6.2014, inviting applications from eligible Railway employees for voluntary retirement under LARSGESS, for the second half of the year 2014. As per Annexure A2 notification, the Railway employees who are working as Traffic Porter in the Operating Department, in O.P.(CAT)No.197 of 2016 -3- the age group of 50-57 and having a minimum qualifying service of 20 years as on 1.7.2014, are eligible to seek voluntary retirement. The request for voluntary retirement will be considered only when the ward is considered suitable for appointment in all respects, i.e., the conditions of eligibility for direct recruitment. The eligible ward will be appointed in lowest recruitment grade of the respective categories in which the employee belongs. 5. Pursuant to Annexure A2 notification, the applicant submitted Annexure A3 application for voluntary retirement to enable appointment of his son. The said request was rejected vide Annexure A6 communication dated 5.11.2014 on the ground that the applicant is not having 20 years qualifying service in the 'safety category', as insisted by Annexure A5 Railway Board's letter dated 11.3.2013. Challenging Annexures A5 and A6, the applicant has approached the Tribunal in O.A.No.137 of 2015, contending that he is entitled for voluntary retirement under LARSGESS and for simultaneous consideration of his son's O.P.(CAT)No.197 of 2016 -4- application for appointment, in terms of Annexure A2 notification. The Tribunal, after considering the rival contentions, dismissed the O.A. by Ext.P2 order dated 04.02.2016, holding that the applicant is not having the minimum qualifying service in the 'safety category' for claiming the benefit of LARSGESS. 6. As evident from Annexure A1 office order dated 14.7.2010, the applicant was rendered surplus while working as Sanitary Cleaner in the Medical Department of the Railways and was re-deployed as Sanitary Cleaner cum Porter. Though, Sanitary Cleaner cum Porter/Traffic Porter is a 'safety staff' in the Operating Department of the Railways, the applicant was not having the requisite 20 years qualifying service in the 'safety category' as on the cut-off date prescribed in Annexure A2 notification, i.e., as on 31.7.2014, which fact is not in dispute. However, relying on Annexure A4 Railway Board's letter dated 11.9.2010 the applicant would contend that, reckoning of 20 years qualifying service in respect of those Railway employees who have rendered service in both 'non-safety' and 'safety' O.P.(CAT)No.197 of 2016 -5- category post for being eligible for voluntary retirement under LARSGESS is legally permissible, and the said benefit was extended to Smt.K.T. Lallamma, who was rendered surplus in the Medical Department and re-deployed along with the applicant as Sanitary Cleaner cum Porter, vide Annexure A1 office order dated 14.7.2010. 7. The retirement scheme for 'safety staff' in the Railways was originally introduced vide Railway Board's letter No.E(P&A)/I-2001/RT-2(KW) dated 2.1.2004 (RBE No.4/2004). The said scheme, namely, the Safety Related Retirement Scheme (hereinafter referred to as 'SRR Scheme') covered two safety categories, viz., Drivers (excluding Shunters) and Gangmen, who have a vital role to play in ensuring operational safety. While the running duties of Drivers demand continued attention and alertness, with an element of stress combined with long duty hours; the duties of Gangmen involve heavy manual labour in the laying of tracks, repair of tracks, patrolling, etc., performed in open environment and they are subjected to vagaries of extreme O.P.(CAT)No.197 of 2016 -6- weather conditions. 8. Under SRR Scheme, Drivers and Gangmen in the age group of 50-57 years, who have completed 33 years of qualifying service may seek retirement on voluntary basis. The ward of such Railway employee will be considered for appointment in the lowest recruitment grade of the respective category from which he/she seeks retirement, depending upon his/her eligibility and suitability, but not in any other category. The discretion to accept the request for retirement will vest with the administration depending upon the shortage of staff, physical fitness and the suitability of the ward for appointment in the category of Driver/Gangmen, as the case may be. The conditions of eligibility, in the case of wards being considered for appointment, would be the same as prescribed for direct recruitment from the open market. 9. Later, vide Annexure A4 Railway Board's letter No.E (P&A)/I-2010/RT-2 dated 11.9.2010 (RBE No.131/2010), it has been decided to extend the benefits of SRR Scheme to other O.P.(CAT)No.197 of 2016 -7- safety categories of staff with Grade Pay of Rs.1,800/-, by modifying the nomenclature of the scheme as Liberalised Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) with Grade Pay of Rs.1,800/-. Under the modified scheme, the qualifying service has been reduced from 33 years to 20 years and the eligible age group from 55-57 years to 50-57 years. Under LARSGESS employment is guaranteed only to those employees found eligible/suitable and finally selected as per the prescribed procedure. The retirement of the employee will be considered only if the ward is found suitable in all respects. Therefore, under LARSGESS the retirement of the employee and appointment of the ward should take place simultaneously. 10. The Annexure to RBE No.131/2010 contains the list of safety categories covered under the scheme, with Grade Pay of Rs.1,800/-, which is extracted hereunder; “Annexure to Railway Board's letter No. No.E(P&A)/I2010/RT-2 dated 11.9.2010. ## **- Safety Categories with Grade Pay of Rs.1,800/** ## **A. Operating Department:** • Pointsman O.P.(CAT)No.197 of 2016 -8- - Shuntman - Leverman - Gateman - Traffic Porters ## **B. Civil Engineering Department:** 1. Gateman 2. Trolleyman 3. Keyman ## **C. Signal & Telecommunication Department:** 1. Khalasi/Khalasi Helper re-designated as Helper Grade-II & Grade-I attached to ESM/MSM/TCM/WTM ## **D.** ## **Mechanical & Electrical Department:** 1. Khalasi/Khalasi Helper re-designated as Helper Grade-II & Grade-I assisting Loco Fitters/C&W Fitters/Fitters in Diesel Sheds (Open Lane & Workshops) and Train Lighting & AC Fitters (Open Line & Workshop) 2. Crane Jamadar & Crane Khalasis” Though the Annexure to RBE No.131/2010 forms an integral part of the Liberalised Active Retirement Scheme, for reasons best known to the applicant, the said Annexure does not form part of Annexure A4 Railway Board's letter dated 11.9.2010 produced before the Tribunal. 11. Annexure A4 Railway Board's letter dated 11.9.2010 O.P.(CAT)No.197 of 2016 -9- was followed by Railway Board's letter No.E(P&A)/I-2010/RT-2 dated 24.9.2010, by which the benefit under the Liberalised Active Retirement Scheme has been extended to Gangman/Trackman, subject to fulfillment of identical conditions stipulated for other safety categories. Later, by Railway Board's letter No.E(P&A)/I-2010/RT-2 dated 28.6.2011, permission has been granted for expansion of the scheme to those in the safety categories mentioned in the Railway Board's letters dated 11.9.2010, with a Grade Pay of Rs.1,900/-. However, the eligibility conditions for safety staff with a Grade Pay of Rs.1,900/- shall be the same as those for Drivers, i.e., 33 years of qualifying service and within the age group of 55-57 years. The eligibility conditions in the case of Gangmen and other safety categories in the Grade Pay of Rs.1,800/- shall remain as 20 years of qualifying service and within the age group of 50-57 years. Still later, by Railway Board's letter No.E(P&A)/I-2010/RT2 dated 3.1.2012, the post of Trolleyman of Departments other than Civil Engineering has also been included in the list of safety O.P.(CAT)No.197 of 2016 -10- categories, for extending the benefit under the Liberalised Active Retirement Scheme. 12. By Railway Board's letter No.E(P&A)/I-2010/RT-2 dated 18.8.2011, the Railway Board has stated in categorical terms that, the list of safety categories covered under the Liberalised Active Retirement Scheme, which has already been circulated as the Annexure to RBE No.131/2010 dated 11.9.2010, has to be strictly adhered to. As evident from the Annexure to RBE No.131/2010, no posts in the Medical Department fall under 'safety category' in order to extend the benefit under the Liberalised Active Retirement Scheme contemplated under RBE No.131/2010. Later, by Railway Board's letter No.E(P&A)/I2010/RT-2 dated 24.9.2010, the benefit under the said scheme has been extended to Gangman/Trackman; which was followed by Railway Board's letter No.E(P&A)/I-2010/RT-2 dated 3.1.2012, extending the said benefit to Trolleyman of Departments other than Civil Engineering. 13. As evident from Annexure A5 Railway Board's letter O.P.(CAT)No.197 of 2016 -11- No. No.E(P&A)/I-2011/RT-6 dated 11.3.2013, the National Federation of Indian Railwaymen (NFIR) had raised an issue regarding reckoning of 20 years of qualifying service in respect of those staff who have rendered service in both 'non-safety' and 'safety' category post for being eligible for voluntary retirement under LARSGESS. The Railway Board vide Annexure A5 has clarified that, 20 years of qualifying service should be in the specified 'safety category' posts indicated in the list annexed to Railway Board's letter No.E(P&A)/I-2010/RT-2 dated 11.9.2010, 28.6.2011 and 3.1.2012. 14. The learned counsel for the petitioner/applicant would point out that, one Smt.K.T. Lallamma, who was rendered surplus in the Medical Department and re-deployed along with the applicant as Sanitary Cleaner cum Porter, vide Annexure A1 office order dated 14.7.2010 has already been extended the benefit under LARSGESS, by reckoning her qualifying service in both 'non-safety' and 'safety category'. Before the Tribunal, the stand taken by the respondents was that, it was only after the O.P.(CAT)No.197 of 2016 -12- benefit under LARSGESS extended to Smt.K.T. Lallamma, the Railway Board insisted on qualifying service of 20 years in safety category post itself, vide Annexure A5 clarification dated 11.3.2013. 15. LARSGESS, by the very name indicate that, it is a liberalised active retirement scheme intended for 'safety staff' in the Railways, as specified in the Annexure to RBE No.131/2010. At any rate, the benefit under the said scheme cannot be extended to a Railway employee by reckoning the service rendered by him/her in 'non-safety' category. A bare reading of the scheme in RBE No.131/2010 and the additions/clarifications made thereunder make it explicitly clear that the qualifying service prescribed under the said scheme should be in the specified 'safety category' posts indicated in the list annexed to RBE No.131/2010 dated 11.9.2010 and added by Railway Board's letter No.E(P&A)/I-2010/RT-2 dated 24.9.2010, and 3.1.2012. 16. In **State of Orissa v. Mamata Mohanty (2011 (3) SCC 436)** the Apex Court has reiterated that, Article 14 of the O.P.(CAT)No.197 of 2016 -13- Constitution of India is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. 17. When no posts in the Medical Department fall under 'safety category' in order to extend the benefit under the Liberalised Active Retirement Scheme contemplated under RBE No.131/2010, the service rendered by a Railway employee in the Medical Department cannot be reckoned as qualifying service for extending the benefit under LARSGESS. As such, merely for the reason that the benefit under LARSGESS has been extended to one Smt.K.T. Lallamma, by reckoning her qualifying service in both 'non-safety' and 'safety category', the applicant cannot contend that he is also entitled for a similar treatment at the hands of the respondents. 18. For the reasons stated hereinbefore, we find absolutely no illegality or irregularity either in Annexure A5 O.P.(CAT)No.197 of 2016 -14- clarification dated 11.3.2013 issued by the Railway Board or in Annexure A6 communication dated 5.11.2014 of the 2[nd] respondent, rejecting Annexure A4 application filed by the applicant for voluntary retirement under LARSGESS, for the reason that the applicant does not have the requisite qualifying service of 20 years in 'safety category', as insisted by RBE No.131/2010 and the additions/clarifications made thereunder. In that view of the matter, the Tribunal was perfectly justified in repelling the challenge made by the appellant against Annexures A5 and A6. In the result, the Original Petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** Bb/29.07.2016 _[True copy] P.A to Judge_