Shyam Pyare Yadav v. Union of India

1. With the consent ofthe parties, all the writ petitions are taken up for final hearing and disposal.

2. These batch of writ petitions can be divided into two sections, i) writ petitions filed by the petitioners befoi-e the Central Administrative Tribunal wherein the OAs filed by them stand dismissed; ii) writ petitions filed by the Union ofIndia, General Manager, Northern l^ailway, who were arrayed. as respondents before the Tribunal and who dremlso aggrieved by the orders passed by the Tribunal. For the sake ofconvenience, first category Staff(LARSGESS) wererejected. It is not necessary for this Court to detail the reasons as to why the OAs were dismissed individually as the Central Administrative Tribunal dismissed all the OAsi as the Tribunal returned a finding that the (LARSGESS) Scheme was ultra vires of Articles 14 and 16 of the Constitution of India and the OAs ' filed by the petitioners(Category-I) seeking employment uiider the said Scheme would not be entitled to the reliefs sought as the Scheme itself has been held to be ultra vires of the Constitution and not sustainable in law.

4. The petitioners of CategoryT are aggrieved by this order for the reasonthat in case the Scheme is declared to be ultra vires, theirrights which arise out of this Scheme would not be enforceable. Category-II petitioners have assailed this order on the ground that the Tribunal was not competent to quash, amend or alter any statutory rule or Scheme of the Government. A common argument has been raised by the co'unsel for the petitioners in Category I and II that in the absence ofpleadings, opportunity of hearing being granted, the Tribunal could not have declared the Scheme to be ultra vires. Counsel further submit that no opportunity was granted to the petitioners in either of the two categories, i.e., the Railways and the Workmen to explain the aim and objective of the scheme, which in a nutshell is as under:

5. The LARSGESS Scheme was taken up out jof the deliberations in the workshop on safety on Indian Railways, conducted on 12^'' and 13"' July, 2003, a Safety Related Retirement Scheme(SRRS) was introduced in •n^"iiTr the physical fitness and reflexes of staff of these categories get impaired thereby causing a safety hazard. The scheme provided that these two categories ofstaffcan seek retirement with full;pensionary benefit and also appoint a ward in the same category, i.e., driver's ward as driver and gangmen ssubject to the condition that the ward must possess the requisite qualification and also has to pass the requisite; selection by the Railways. The sole objective of the scheme is to improve safety in train operations and track maintenance.

6. Counsel also submit that the employees covered under the safety related retirement scheme, developed in house by the Ministry ofRailways, belong to critical safety categories and the unique nature of duties performed by them has adirect bearing on the safety oftrain operations. These specified safety category staff, not common to other Ministries/Department, due to the strenuous nature of their duties performed in adverse weather conditions in the outdoors, are likely to suffer from impaired physical abilities and poor reflexes, thereby causing apossible safety hazard. Under the extant rules, the administration also reserved the right to compulsorily retire such staffwhose performance is not satisfactory. However, as far as safety is concerned, the need is more for prevention and asituation where it would take occurrence of an accident to bring;to light the unsatisfactory performance of an employee should best be avoided. In the above backdrop, the need to put in place ascheme ofvoluntary retirement which would carry adequate incentive for safety stafftd quit after aprescribed age

9. Rs.l900/, consequent to the announcements Railways, in the budget speech of2010 and 201 Fuithei in the year 2014, the following five more categories in Grade Pay of Rs.1800/- were covered under LARSGRSS with the approval of Ministry of Railways:-: i. Electrical power staffworking onjtrack. ii. Track machine staffworking on track. iii. Bride staffworking on track.; iv. TRD staffworking on track.

V. PWI Khalasis working on track.; 'I'lTi- I •' rri 'I r i r rinniir n"Ti]TWlHiniEff Cb) made by, the Minister of 1 respectively. Counsel have urged before this Court that it was; not open to the Tribunal to exatnine the wisdom ofthe LARSGESS Scheme being amatter ofpolicy and the same could not be asubject matter before ajudicial forum.

10. Additionally, it is contended tlrat the Tribunal has placed reliance on the orders passed by the Jaipur Bench where an idehtical question was decided despite being conscious ofthe fact that the aforesaid orders passed by the Jaipur Bench were subject matter ofawrit petition and die orders so passed by the Jaipur Bench were set aside by the Rajasthan High Court and the matters were remanded back to the Jaipur Bench for fresh hearing. Another common ground raised is tliat once the febunai had the benefit of the observations ofthe Rajasthan High Court wherein it was observed that no opportunity was given to the respondents writ petitioners before -i-ii—I—i—i: —Li—L—L^_LJ: impugned oidei, the Tribunal was aware that the order passed b}/ the Jaipur Bench had been assailed before a Division; Bench of High Court at Rajashtan being W. P. (C) 2452/2014. Paragraph 13 ofthe order passed by the Tribunal reflects that the Rajasthan ITigh Court had stayed the order passed by the Jaipur Bench on the ground that no opportunity of hearing was granted to the respondents/writ petitioners before the Tribunal. Paragraph 13 forther reflects that subsequently on 16.04.2014, two writ petitions were disposed ofwherein it was held that the procedure followed, by the Tribunal in recording the findings in respect of the prepentional scheme introduced by the Railway seeking employment without forcing reasonable opportunity to the UOI could not have been approved by the High Court as the same was not in conformity with the basic tenets of law where parties are granted reasonable opportiinity of hearing before an I adverse order is passed. Learned Tribunal has thereafter extracted the relevant part of the judgment' ofthe Jaipur Bench of the Rajasthan High Court, which reads as under: '• I I "These cross petitions by both the parties have been filed being aggrieved by order of the Tribunah impugned in the instant proceedings dt.24.09.2013. | ' It reveals from the record that the original application no.654/2013 was filed by the petitioner applicant Ganni & another seeking preferential employment under the scheme introduced by the respondent Railways in replacement of employee who took voluntary retirement for his personal reasons and the learned Tribunal after hearing counsel for petitioners-applicant took note of scheme ofpreferential employment introduced by the Railways and Counsel submits that it was never prayed and his grievance was to seek preferential employment under the;scheme and not beyond it. According to him rejection of OA on the ground which was never prayed for and that too without affording notice to the respondent was not valid in the eye of law and requires interference by this Court. Apart from the petition filed by the petitioners-applicant, there is another petition filed by Union of India also being aggrieved by the order of the tribunal & rightly so since without affording opportunity of hearing and calling upon respondent Union of India for the object for which the scheme was introduced and the reason behind it to provide such preferential employment the tribunal interfered in the same and'held to be, unconstitutional certainly Union of India was required to be heard and the finding which has been recorded regarding preferential errlployment introduced by the Union of India by the Tribunal certainly cannot be upheld by this Court. We have heard counsel for the parties. As both the parties are aggrieved by the order of the tribunalj in our considered view the procedure followed bv the tribunal ifi recording the finding in respect of the preferential scheme introduced by the Railways seeking emplovment without affording reasonable opportunity to the UOI cannot be approved by this Court and that is also not in conformitv with the basic tenets of law where the parties to be afforded with the reasonable opportunity of hearing before any adverse order being passed, •indisputably in the Instant case the finding which has been recorded by the tribunal certainly adversely affects rights of Union of India to whom opportunity was not affordedto comply with basic requirenientof law. Before parting with the order we may clarify that what has been observed by us is only for disposal of the writ petitions and the Tribunal may not be influencedfinhibited by the observations made tiibunal to decide the OA after the reply being filed expeditiousiy in accordance with law. Boththe petitions stands disposed of. No costs."

12. Learned counsel for the parties submit that aftef noticing the observations of the Division Bench of Jaipur Lligh Court, ithe Tribunal has failed to comply with the observations and to the contrary failed to give any reason why the same would not be binding on the Tribunal and simply observed that "We do not find any reason to disagree o;f the finding of the Jaipur Bench of this. Tribunal that LARSGESS is unconstitutional and ultra vires. Learned counsel further submit that reading of the order of the Central Administrative Tribunal, would give an impression as if a scheme for back door entry of the employees, has been created, i Learned counsel contends that this scheme was in fact launched as far as, back in the year 2004 and has been strictly implemented. Counsel further contends that Tribunal has I failed to appreciate the aim, objective and purpose of the scheme and in the absence of any opportunity to the parties of hearing, it couldnot be brought to the notice of the Tribunal, the purpose why the scheme was formulated.

13. Learned counsel for the parties contend that firstly it was not in the domain of the Tribunal to opine whether the scheme was ultra, vires or not and secondly, in the absence of any pleading, the Tribunal could not have returned such a finding. Reliance has been pJaced on Mallikarjuna Rao and Ors. Vs. State of Andhra Pradesh and Ors. •: (1990) 2 SCC 707, wherein it has been held; ir| • fr-ir-vn •••t-'n.tn'rTriTr'"PITTI'-ln";i the Administrative Tribunals to issue directions or advisorysermons to the executive in respect: of the sphere which is exclusively within the domain of the executive.under the constitution. Imagine the execu- tive:advising the judiciary in respect of its power of judicial review under the constitution. We aie bound to react scowlingly to any such advice. 12: XXXXXXXXXX

13. The Special Rules have been framed under Article 309 ofthe Constitution of India. The power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the constitution has to be eiiercised by the President or the Governor ofaState as the case may be. The High Courts or the Administrative Tribunals carmot issuej a mandate to the State Government to legislate under Article $09 of the Constitution of India. The Courts cannot usuip the functions assigned to the executive under the constitution and canlnot even indirectly require the executive to exercise its rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Aiticle.309 of the Constitution of India."

14. Reliance is also placed upon Bharat Amrailal Kothari Vs. Dosukhan Samadkhan Sindhi: AIR (2010) SC 47, whereih ithas been held that:

14. The approach ofthe High Court in granting relief not prayed foi cannot be approved oy this Court. Every petition under Article 226 ofthe Constitution'must contain a relief clause. Whenever the petitionei is entitled or is claiming more than one relief, he must pray for all the reliefs. Under the provisions ofthe Code of Civil Piocedure, 1908, ifthe plaintiff omits, except with the leave ofthe court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so lelief, the court, however, cannot, ignoring and keeping aside the..onus and pimciples governing grant:of relief, grant arelief not even prayed for by the petitioner. In ICidshna Priya vs. University of Liiclmow [(1984) 1see 307], overlooking the rule relating to grant

0. a mission to Postgraduate course in medical college, the High eouit^ in the^ exercise of, powers;under Article 226 of the onstitution directed the Medical eduncil to grant provisional admission to the petitioner. This eourt set aside the order passed by the High Court observing that "in his: own petition in the ITigh Court, the respondent has merely prayed for awrit directing the State 01 the College to consider his case for admission yet the High Court went a step further and straightway issued a writ of mandamus directing the College to admit him to M.S. course and thus gianted reliefto tlie respondent which he himselfnever prayed for and could not have been prayed for". Again, in Om Prakash vs. Ram Kumai [(1991) 1 SCC 441], this Court observed, "A party cannot be gianted areuefwhich is not claimed, ifthe circumstances ofthe case aie such that the granting ofsuch relief would result in serious prejudice to the interested party and deprive him of the valuable lights under the statute". Though aHigh Court has power to mould reliefs to meet the requirements ofeach case, that does not mean that the draftsman ofawrit petition should not apply his mind to the pioper relief which should be asked for and throw the entire burden of it upon the court. It is relevant to notice that the Pligh Court^was not exercising powers iunder Article 226 of the Constitution suo motu but was examining the validity of order passed by the Additional Chief.ludicial Magistrate refusing to grant custody of goats and sheep to the respondent Nos. 1to 6, in the Special Criminal Application, which was filed by them under Article 226 of the Constitution through awere represented by a senior counsel practicing in the Gujarat High Court and having legaid to the facts ofthe case, the learned lawyer was Justified Only' in claiming those reliefs to which reference is made earlier. The respondent Nos. 1 to 6 were seeking a writ of certiorari or mandamus to declare that order dated July 5, 2009, passed by the mLaZHDHEE reading ofthe petition maltes it more than. rlear that no factual data latsoever was laid by the respondeiit Nos. 1to 6for claiming to°Tn wWernf" mentionedas 0mwhich manner they or any of them had suffered damage or ss because ofthe handing over ofcustody of goats and sheep to Ae appel ant No. 1 and ultimately; ho the respondent No 8 Panjaiapole situated at Patan nor the appellant No. 1was permitted to conta-overt that in fact no damage dr loss was suffered by the espondentNos^ 1to 6or any ofthem. There is no mattner ofdoubt thai tire High Comt was too indulgentdn this matter. After all it was not a petition from a person languishing in jaii or from a bonded labourer or a party in person or public spirited citizen seeking to bring agross injustice to the- notice ofthe court. Here, the High Court had before it the respondent Nos. 1 to 6 as petitioneis. The question whether the respondent Nos. 1 to 6 suffered damage or loss because ofhandiing over ofgoats and sheep to the appellant No. 1and/or to the respondent No. 8, depends upon facts to be proved. Normally, such an exercise cannot be undertaken in a writ tiled under Article 226 of the Constitution. This Court further finds that the appellant No. 1is not only directed to pay, by way ofcompensation and cost, to each ofthe respondent Nos. 1to 6asum of Rs.75,000/- but is; flirther directed to pay on behalf of respondent Nos. 1 to 6 the' cost of maintenance and treatment of the animals in question' to respondent No. 8 in accordance with the provisions of sub-Section (4) ofSection 35 of the Act. To mention the least, it is evident that the respondent Nos. to 6are not parties to Criminal Inquiry Case No. 237 of 2008 which is pending before the learned Chief Judicial Magistrate' alanpur. As observed earlier, the said inquiry has been initiated at the instance ofone of.the aides ofthe accused. In the said inquiiw the question posed for determination of the learned Chief Judicial Magistrate, Palanpur,, would be whether the appellant No. 1and others with police personnel had committed loot of trucks with pats and sheep and also cash amount of Rs.1,11,000. The said:ir"!n n • |Tnri-ir-ntT'^;n utr.ry; 1should be directed to pay, on behalf of the owners le the respondent Nos. 1to 6, the cost of maintenance and tretoeM of me animals in question maccordance with the provisions of sub- Section (4) ofSection35 ofthe Act. Normally, cLt ofmamtena" e and heahnent ofthe animals in such cases would be payable by one who claims custody or who are the owners ofthe live stock but not by the complainant. In the instant case the assertion made by the ppellmit No. 1IS that he was handed,over custody of goats and sheep by the police after registration of FIR seems to be that the appel ant No. 1had taken possession of the live stock and trucks 1legally before the FIR was lodged and|had acted in ahigh handed manner. Ihe dispute whether appellant No. 1 was handed over custody ofgoats and sheep after filing ofthe complaint or whether he had obtained custody of goats and; sheep illegally before the complaint was lodged, will have to be adjudicated upon evidenee to be lead by the parties. Such ahighly coiitentious dispute cannot and could not be resolved in a petition' under Article 226 of the Constitution. Having regard to the totality of the facts and ciicumstances emerging from the record;ofthe case, this Court is of the firm opmion that there was no justifibation at all in directing the appellant No. 1to pay asum ofRs.75,000/- towards compensation and cost to each of the respondent Nos.-1 to 6and to pay to the lespondent No. 8 herein the cost ofmaintenance and treatment of ftie animals in question on behalf of the respondent Nos. 1to 6. xheiefoie, this diiection is also liable to be set aside."

15. In the case ofSumangala Naganath Vs. Union ofIndia and Ors.: 1999 see (L&S) 1318, it has been held that: