G. Shanthappa, Judicial Member
The above applications are filed under Sec. 19 of the Administrative Tribunals Act, 1985 seeking the relief of calling for the records of the respondents with regard to the notification RBE No 42/2011 dated 29th March, 2011 and quash the same in so far as the applicants are concerned.
2. All the applicants have filed separate OAs. Since the issue involved the relief claimed in all these OAs are similar and the facts of the case are also similar, they were heard together and are being disposed of by this common order. For the purpose of convenience, at the request of learned counsel for the applicants, facts have been taken from O.A no. 1523/2011 as a leading case.
3. According to the applicants, applicants in O.A. No. 1522/11, 1523.11,1524/11.1525/11 and 1527/11 are working as Air conditioned Coach Attendant ( ACC/A) and the applicant in O.A. NO. 1526/11 is working as Helper Gr. I. The admitted facts from either side are that the services of the applicants have been classified as ‘Safety Category’. The Railway Board framed scheme called ‘Safety Related Retirement Scheme for Drivers and Gangmen.’ vide PBC No. 11/2004, which came into effect from 02.01.2004. The scheme has been framed on the consideration that with advancing age, the physical fitness and reflexes of staff belonging to Driver and Gangman categories deteriorate, thereby causing a safety hazard. It is relevant to extract the relevant portion of the main features of the scheme:
4. (ii) Under the scheme Drivers and Gangmen in the age group of 50 to 57 years may seek retirement.
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(iv) The employee should have completed 33 years of qualifying service in order to be eligible for seeking retirement under this scheme
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(vi) The ward will be considered for appointment only in the lowest recruitment grade of the respective category from which the employee seeks retirement, depending upon his/her eligibility and suitability, but not in any other category.
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(viii) The last date for submission of requests for retirement and consideration of a ward for appointment under the scheme will be the 31st July of the respective year.
(ix) employees who desire to withdraw their requests for retirement may be allowed to do so, not later than 30th September of the respective year. No request for withdrawal will be entertained thereafater.
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5. The scheme will come into force from the date of issue of this letter.
6. The applicants did not opt under the said scheme since their services were not classified as safety category. It has been decided by the respondents to extend the benefits of the said scheme to other safety category staff with grade pay of Rs. 1800/- vide RBE No. 131/2010 dated 11.09.2010 and 24.09.2010. Paras 2, 3 and 5 of the letter reads as under:
“2. It has now been decided to extend the benefit of Scheme to other safety categories of staff with a grade pay of Rs. 1800/- p.m. The qualifying service has been reduced from 33 years to 20 years and the eligibility age group from 55 -57 to 50-57 years for seeking retirement under the scheme in the case of Safety categories with grade pay of Rs. 1800/- The list of safety categories covered under the Scheme is enclosed as Annexure.
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7. The condition of qualifying service (i.e. 33 years) and age group ( i.e. 55-57) years for Drivers remain unchanged.
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8. The other terms and conditions of the Scheme will remain unchanged.
Clause D of the Annexure to Railway Board’s letter dated 11.09.2010 relates to Mechanical and Electrical Department. It reads as under:
D. Mechanical and Electrical Department.
1. Khalasi/Khalasi Helper redesignated as Helper Grade II and Grade I assisting Loco Fitters/C7W / Fitters/Fitters in Diesel Sheds ( Open line and Workshops) EMU/Elect Sheds ( open line and Workshops) and train lighting andAC Fitters (Open Line and Work shop)
9. The respondents admit that the applicants are covered under RBE No. 131/2010 dated 11.09.2010. It is also an admitted fact that applications were not invited under the said RBE No. 131/2010. However, the applicants submitted their applications as per the details given below:
Date
Applicant in O.A. No. 1523/2011 28.10.2010
Applicant in O.A. NO. 1525/2011 28.10.2010
Applicant in O.A. NO. 1522/2011 15.11.2010
Applicant in O.A. No. 1526/2011 25.07.2011
Applicant in O.A. No. 1527/2011 25.07.2011
Applicant in O.A. NO. 1524/2011 27.07.2011
10. With reference to RBE No. 131/2010, as per RBE No. 42/2011 dated 29.03.2011, the process of retirement/recruitment was to be started from July 2011 for the current calendar year 2011. It is relevant to extract para 2 of RBE No. 42/2011 dated 29.03.2011. It reads as under:
“2. The process of retirement/recruitment may be started from July 2011 for the current calendar year 2011.”
11. The time schedule was also given in Annexure to the said RBE No. 42/2011. The applicants have submitted their applications under the said RBE No. 42/2011 as per the details given below:
Date
Applicant in O.A. No. 1523/2011 25.07.11
Applicant in O.A. NO. 1522/2011 27.07.11
Applicant in O.A. No. 1526/2011 25.07.11
Applicant in O.A. No. 1527/2011 25.07.11
Applicant in O.A. NO. 1524/2011 27.07.11
Applicant in O.A. No. 1525/2011 29.07.11
12. The respondents have invited applications under LARSGESS scheme vide notification dated 11.07.2011. All the applicants have again submitted their applications on the dates mentioned above. As there was no reply, the applicant in O.A. NO. 1523/2011 had submitted an application dated 22.10.2011, to the Senior Divisional Personnel Officer and PIO seeking certain information under RTI. The Senior Divisional Personnel Officer and PIO replied vide his letter dated 08.11.2011 stating that as per the conditions of LARSGESS, age limit for considering VR is between 50 to 57 years as on 01.07.2011, and since the applicant concerned was over aged he was assessed as not eligible for the benefit under LARSGESS scheme. Thereafter on 09.11.2011, the Assistant Personnel officer/E1/MAS circulated a list of persons eligible and not eligible. In the list of not eligible persons, all the applicants name figure at Sl. Nos. 3,4,5,7,11 and 20. The applicants are challenging the RBE No. 42/2011 dated 29.03.2011 in the present OAs.
13. It is the grievance of the applicants that the impugned notification is illegal, against law, arbitrary and violative principles of natural justice. The respondents have deprived large sections of employees and their wards and hence they have no right to alter the scheme, more so when the original scheme was adopted in toto by the notification dated 11.09.2010. The original scheme did not contemplate depriving any employee who is within the age limit of 57 years as on 30th June of each year. As such arbitrarily fixing a cut off date as 1st July is uncalled for and does not serve any purpose. The action of the respondents, in modifying a scheme with a view to deprive the eligible employee, is arbitrary illegal and as well as devoid of natural justice.
14. The respondents have vehemently opposed the OA and supported the impugned notification. They have denied the allegations of the applicants made against them in the O.A. It is the contention of the respondents that a Safety Related Retirement Scheme ( SRRS ) was introduced in January 2004 exclusively for two frontline safety categories, namely Drivers and Gangmen on the consideration that with advancing age, the physical fitness and reflexes of staff of these categories get impaired thereby causing a safety hazard. The basic objective of the scheme is to replace the physically impaired old staff by a fitter and younger staff, thereby improving safety in train operations. Under the scheme, ward will be considered in the lowest recruitment grade of the respective safety category from the employee seeks retirement. The cut off date for reckoning the eligibility of the employee was fixed as 30th June and the Railway administration reserved the discretion to accept the request for retirement depending upon the shortage of staff, physical fitness and suitability of the ward for appointment in the category of Drivers/Gangmen as the case may be.
15. Under the said scheme of 2004, applicants belonging to Air Condition Coach Attendant (ACCA for short) were not eligible to be considered even though they belonged to the safety category. Only two categories i.e. Drivers and Trackman were covered under the Scheme 2004. In the year 2010, under modification of the earlier scheme of 2004, the Ministry of Railways decided to extend the benefit of the Scheme to other safety categories of staff with Grade pay of Rs. 1800/- per month. The applicants’ category was also covered under this scheme. The salient features of this scheme was that qualifying service was reduced from 33 years to 20 years and the eligibility group was revised from 55 to 57 years. The scheme was called the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff ( LARSGESS for short) . This employment was guaranteed only to those found eligible/suitable and finally selected as per the procedure and the retirement of the employee was considered only when the ward was found suitable. The demands raised by the Employees Federation, the Ministry of Railways decided that the retirement/recruitment process under the LARSGESS in respect of these safety category of staff should be done twice a year as per the schedule given in the Annexure i.e. for the period between January to June the cut off date was fixed as 1st January and for the second half i.e. for the period from July to December the cut off date reckoning the eligibility of employee and his ward was fixed as 1st July. Therefore, under the LARSGESS scheme, instead of the 30th June, two cut off dates were given by the Board thus enlarging the scope and also increasing the number of recruitment process to twice instead of once in a year. Further vide letter dated 29.03.2011 the scope of the Scheme was extended by fixing two cut off dates in a calendar year so that more number of employees should be covered under the scheme. Therefore such a prescription of cut off date cannot be assailed as arbitrary and it was not introduced to defeat the very purpose of notification as alleged by the applicants. In pursuance of the circular, which was issued in the year 2010, the applicants made representations which was even before the notification issued by the Railway Board and therefore the same is not a ground to consider the applicants right to be considered under the scheme. The applicants right for consideration arise only when there was a notification calling for applications issued by the Railway Administration. Such a notification was issued for the first time only on 11.07.2011 and hence the applicants have no right for consideration of their applications under the LARSGESS scheme as soon as the Railways issued notification. The notification was issued by the Chennai Division on 11.07.2011 and hence the applicants have legal right to be considered under the Scheme provided they fulfil the conditions stipulated in the notification. The doctrine of legitimate expectation cannot be exercised when the scheme complete in all respects. The doctrine of legitimate expectations cannot be invoked in this case as the applicants have no legal right to be offered an appointment to their wards under the Scheme when they do not fulfil the eligibility criteria. However, on scrutiny of the documents the applicants were found to be over-aged as per the notification and they were declared not eligible. The applicants have completed 57 years as on 01.07.2011 they were not eligible to be covered under the LARSGESS scheme as on the cut off date of the 2nd half i.e. July to December is 1st July of every year. As on 01.07.2011, the applicants have completed 57 years of age and therefore they are not eligible to be considered under LARSGESS Scheme 2010. The respondents have enclosed the notification dated 11.07.2011 along with the reply statement.
16. We have carefully considered the submissions of the learned counsel for the respective parties and perused the pleadings available on record. The applicants have not chosen to file rejoinder to the reply statement which shows that they are not controverting the statements made in the reply statement.
17. On the admitted facts narrated in the earlier paras it is evident that the respondents have issued PBC No. 11/2004 dated 02.01.2004 and the scheme was called ‘Safety Related Retirement Scheme for Drivers and Gangmen. The said scheme came into force from the date of issue of notification dated 02.01.2004. The scheme has been framed on the consideration that with advancing age, the physical fitness and reflexes of staff of these categories deteriorate, there by causing a safety hazard. Under the scheme Drivers and Gangmen in the age group of 50 to 57 years may seek retirement and the person concerned should have completed 33 years of qualifying service in order to be eligible for seeking retirement under this scheme. The request for retirement will be on voluntary basis and there will be no element of compulsion on the part of the administration. The last date for submission of requests for retirement and consideration of a ward for appoint under the scheme was 31st July of the respective year. Those who have completed 33 years of qualifying service and are in the age of group of 55 to 57 years would be considered in the first phase of the scheme to be followed by those in the age group of 53 years onwards but less than 55 years. The said scheme was liberalized by the Railway Board RBE No. 131/2010 dated 11.09.2010. The relevant portion reads as under:
“2. It has now been decided to extend the benefit of Scheme to other safety categories of staff with a grade pay of Rs. 1800/- p.m. The qualifying service has been reduced from 33 years to 20 years and the eligibility age group from 55 -57 to 50-57 years for seeking retirement under the scheme in the case of Safety categories with grade pay of Rs. 1800/- The list of safety categories covered under the Scheme is enclosed as Annexure.
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4. The condition of qualifying service (i.e. 33 years) and age group ( i.e. 55-57) years for Drivers remain unchanged.
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5. The other terms and conditions of the Scheme will remain unchanged.
As per Annexure to the above RBE dated 11.09.2010 the claim of the applicants are covered. The respondents have contended that though RBE No. 131/2010 dated 11.09.2010 and 24.09.2010 was issued, but no applications were invited for VR under LARSGESS scheme. However, applications were invited vide RBE 42/11 dated 29.03.2011. As per para 2 of the notification the process of retirement/recruitment may be started from July 2011 for the current calendar year 2011 and as per para 3 the other terms and conditions of the scheme will remain the same. As per Annex. to the RBE no. 42/2011 dated 29.03.2011 a time table was fixed. The applicants have also applied under the said notification. The applications submitted by the applicants were considered by the concerned authorities and after that only they issued an order dated 09.11.2011. As per the conditions, the age limit for considering VR is between 50 and 57 years as on 01.07.2011. As the applicants were over aged they were not eligible to get the benefit of the scheme. In the list of not eligible candidates, the applicants name figure at Sl. No. 3,4,5,7,11 and 20 as they were over aged.
18. The contention of the applicants is that the original scheme dated 02.01.2004 is applicable to their case. Since the respondents have issued notification dated RBE No. 131/2010 dated 11.09.2010, 24.09.2010 and that came into force from the date of issue of the order. Accordingly they have applied under the said notification and as on that date, the applicants were eligible for consideration. The learned counsel for the respondents submits that though notifications dated 11.09.2010 and 24.09.2010 were issued but no applications were invited for VR.
18. The process of retirement/recruitment started from July 2011 for the Calendar year 2011 vide RBE no. 42/2011 dated 29.03.2011 When the applications were invited by the respondents, the applicants were overaged and hence the respondents have not considered their applications submitted by the applicants and rejected the applications. The reply under RTI given to one of the applicants, vide communication dated 08.11.2011, states that as per the conditions of LARSGESS the age limit for considering VR is between 50 and 57 years as on 01.07.2011 and as the applicants were overaged they were not eligible for LARSGESS scheme.
19. Further contention of the applicants is that the impugned RBE No. 42/2011 dated 29.03.2011 is arbitrary, illegal and mala fide and violative of principles of natural justice, the applicants have got legitimate expectation to consider their request under RBE No. 42/2011 dated 29.03.2011 since the said circular came into effect from 29.03.2011. The contention of the respondents is that unless the applications were invited the applicants have no legal right to apply for VR and accordingly their applications were rejected and they were declared as not eligible for VR under the letter dated 09.11.2011. Further it is seen that the process of retirement/recruitment for the calendar year 2011 was to be started from July 2011 and by that time all the applicants have crossed 57 years. Hence the respondents have justified the rejection of the applications of the applicants. We find there is no illegality in considering the applications submitted by the applicants and rejecting the same. We are of the view no principles of natural justice has been violated.
20. We would like to mention that the issue of fixation of cut off date has been extensively dealt with by the Hon’ble Supreme Court in the case of Transport and Dock Wokers Union and ors. Vs Mumbai Port Trust and Anr. [ 2010 (6) SLR 691 ]. After referring the earlier judgments the Hon’ble Supreme Court in para 44 of the judgement held as under:
44. As regards cut-off dates, this Court in Government of andhra Pradesh and Ors. vs. N. Subbarayudu and Ors. 2008(14) SCC 702 has observed vide paragraphs 5 to 9 :
"5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab vs. Amar Nath Goyal 2005(6) SCC 754)
6. No doubt in D.S. Nakara vs. Union of India 1983(1) SCC 305 this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab vs. Amar Nath Goyal.
7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.
8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar vs. Ramjee Prasad 1990(3) SCC 368, Union of India vs. Sudhir Kumar Jaiswal 1994(4) SCC 212 (vide SCC 5), Ramrao vs. All India Backward Class Bank Employees Welfare Assn. 2004(2) SCC 76 (vide para 31), University Grants Commission vs. Sadhana Chaudhary 1996(10) SCC 536, etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut- off date leads to some blatantly capricious or outrageous result.
9. As has been held by this Court in Aravali Golf Club vs. Chander Hass 2008(1) SCC 683 and in Govt. of A.P. vs. P. Laxmi Devi 2008(4) SCC 720 the court must maintain judicial restraint in matters relating to the legislative or executive domain."
21. The applicants have no legitimate expectation as contended in view of the judgements of the Honble Supreme Court in the following cases:
(i) Union of India and anr. Vs. Arulmozhi Iniarasu and ors [ 2011 (3) SLJ 92 ] - Para 18
22. Recently, in Sethi Auto Service Station and Anr. Vs. Delhi
Development Authority and Ors.7, one of us (D.K. Jain, J.), referring to a large number of authorities on the point, summarised the nature and scope of the doctrine of legitimate expectation as follows:
"32. An examination of the aforenoted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arise when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles."
(ii) Secretary State of Karanataka and others vs. Umadevi (3) and ors. [ (2006)4 SCC 1]- para 46
Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn {See Lord Diplock in Council of Civil Service Unions V. Minister for the Civil Service (1985 Appeal Cases 374), National Buildings Construction Corpn. Vs. S. Raghunathan, (1998 (7) SCC 66) and Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC 485). There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after the Dharwad decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.
(iii) CSIR and ors. Vs. Ramesh Chandra Agrawal and anr. [(2009)1 SCC (LandS) 547]- para 36
Another aspect of the matter cannot also be lost sight of. Researchers are not selected on the basis of the tenure of research work alone but also on the basis of their performance in the interview by the selection board. Submission to the effect that cut off date should have been fixed keeping in view the principles of legitimate expectation, to say the least, is misconceived. Legitimate expectation is based on the principles of natural justice. There has to be a basis for giving effect to the doctrine of legitimate expectation. It must not be based on mere anticipation. When this Court directed the appellants to frame a scheme, the same was required to be framed having regard to the provisions of Articles 14 and 16 of the Constitution of India.
In the instant case, it is quiet evident that the respondents have fixed the cut off date after discussion with trade union leaders. We find no infirmity in the same.
23. For the foregoing reasons and in view of the law laid down by the Hon’ble Supreme Court in the case cited supra, we are of the considered view that impugned notification is not arbitrary, illegal and does not violate any principles of natural justice as contended by the applicants. The same is not arbitrary. The respondents have powers to issue notification by fixing a cut off date. The applicants have not established their case for grant of relief as prayed for in the O.A. The respondents have justified their action in rejecting the applicants case. Therefore the O.A is liable to be dismissed.
24. Accordingly, the O.A is dismissed. No order as to costs.