Allowed

Union of India and Ors. v. Ranjit Singh and Anr.

Delhi HC11 Dec 2015W.P.(C)/6828/2015

Case brief

AI extract

What is this about?

Batch of writ petitions challenging CAT orders holding the LARSGESS railway safety retirement scheme ultra vires Articles 14 and 16. Both employees and Railways objected that vires was decided without pleadings or hearing. The High Court held the Tribunal exceeded its jurisdiction and set aside the orders, remanding for fresh hearing.

What did the court decide?

Tribunal orders set aside; matters remanded to CAT for fresh hearing; listing before Joint Registrar on 12.01.2016; interim orders continue in specified petitions.

Union of India and Ors. Vs Ranjit Singh and Anr. — Service and Employment | Delhi HC (2015)

¶1

W.P.(C)7258/2015 & CM APPL.13320/2015, W.P.(C)7281/2015 & CM Signature Not Verified APPL.13357/2015, W.P.(C)9155/2015 & CM APPL.20860/2015, W.P.(C)9805/2015 Digitally Signed & CM APPL.23581/2015, W.P.(C)9831/2015 «& CM APPL.23703/2015, By:AM UL YA

¶2

¶3

W.P.(C)9886/2015 & CM APPL.23923/2015, W.P.(C)9895/2015 APPL.23938/2015AND W.P.(C)10685/2015& CM.APPL27432/2015.

¶4

& CM

¶5

UNION OF INDIA AND ANR

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UNION OF INDIA AND ANR versus	,Petitioners
MEWA LAL PAL AND ANR.	Respondents
KHUSHI RAM	Respondent
KANCHAN YADAV AND ORS.	Respondents
NAND RAM	Respondent
HARI OM	Respondent
BHARAT RAM AND ANR.	Respondents
RAMJI LAL	Respondent
SATYA PARKASH	Respondent
LALLU RAM	Respondent
SHIV PRASAD AND ANR.	Respondents
HARI SINGH	Respondent
BIR SINGH	Respondent
ALINOOR & ORS.	Respondents
RAM SARAN & ORS.	Respondents
MAHINDER SINGH	Respondents
GULJARI & ORS	Respondents
LOKI	Respondent
RANJIT SINGH AND ANR.	,Respondents
YAD RAM AND ORS.	,Respondents
ROHTAS	, Respondent
RASID	, Respondent
DIWAN SINGH & ANR	, Respondents
SAGAR SINGH	, Respondent
AMAR SINGH AND OTHERS	. Respondents
MUNNA LAL AND ANR	,Respondents
NAKU AND ORS	,Respondents
RAFIQ AND ORS	, Respondents
SATRHON	, Respondent
ARUN KUMAR AND ANR	, Respondents
ABDUL HASSAN AND ANR	. Respondents
MOHD. SAMI	. Respondent
ANAND SINGH	. Respondent
SATYA PRAKASH	.Respondent
JAGPAL SINGH	.Respondent

¶7

APPEARANCE

¶8

Mr.J.K. Singh, Advocate for the petitioner/UOI, in W.P.(C)Nos.4422/2015,10585/2016, 4796/2015, 6210/2015, 6662/2015, 6691/2015, 4593/2015, 4768/2015, 4891/2015, 4418/2015, 4932/2015, 6667/2015, 6692/2015, 3679/2015, 6715/2015, 6716/2015, 6718/2015, 6828/2015, 6836/2015, 6838/2015, 6870/2015, 6871/2015, 6873/2015, 7222/2015, 7258/2015, 7281/2015, 9951/2015, 9155/2015, 9805/2015, 9831/2015, 9886/2015 8c 9895/2015.

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Page 2 of 3

¶10

W.P.(C). No.9353/2015 & Ors.

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Ms.PunamSingh,Adv. for the petitionerin W.P.(C)Nos.9353/2015& 4757/2015.

¶12

Mr.A.K. Trivedi, Advocate for the petitioner, in W.P.(C) 11375-76/2015,1434-36/2015, 1452/2015, 6424/2015, 6425/2015, 6426/2015, 6427/2015 & 6814/2015.

¶13

Mr.R.V. Sinha, Adv. for the petitioner, in W.P.(C) Nos. 6781/2015.

¶14

Mr.V.S.R Krishna, Adv. for the petitioner in W.P.(C)No.6219/2015.

¶15

Mr.H.P. Chakravorti, Advs. for the petitioner, in W.P.(C)Nos. 2665/2015, 2668/2015, 2688/2015, 2670/2015,2753/2015, 3099/2015 & 6269/2015.

¶16

Mr.TapasTyagi and Mr.RahulChaudhary,Advs. for the petitioner in W.P.(C)Nos.6767/2015 & 6781/2015.

¶17

Mr.GayaPrasad, Adv. for the petitioner in W.P.(C)6643/2015.

¶18

Mr.R.K. Shukla,Adv. for the petitioner in W.P.(C) Nos.10960/2015,2275/2015,6951/2015, 8020/2015 & 8035/2015.

¶19

Mr.TapasTyagi, Adv. for therespondentin W.P.(C)Nos.3679/2015& 7258/2015.

¶20

Mr.A.K. Trivedi, Vaibhav Trivedi, Rohit Dadwal, Adv. for respondents, in W.P.(C)Nos.4418/2015, 4422/2015, 4593/2015, 4796/2015, 6667/2015, 6692/2015, 6716/2015 & 7281/2015 & 7222/2015.

¶21

Ms.MeenuMaini, Adv. for respondents in W.P.(C) 10685/2015,9886/2015& 9895/2015.

¶22

Mr.J.K. Singh, Advocate for the respondents in W.P.(C) Nos.11375/2015,11376/2015, 10960/2015, 1434/2015, 1436/2015, 1452/2015, 2275/2015, 2688/2015, 2668/2015, 2670/2015, 2753/2015, 3099/2015, 4757/2015, 6269/2015, 6424/2015, 6425/2015, 6426/2015, 6427/2015, 6767/2015, 6781/2015, 6814/2015, 6951/2015, 7726/2015, 8020/2015,8035/2015, 9353/2015, 9951/2015,6643/2015& 2665/2015.

¶23

CORAM:

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HON'BLE MR. JUSTICE G.S.SISTANI

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HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

¶26

G.S.SISTANI. J (ORAL)

¶27

For judgment, see W.P.(C) 11155/2015.

¶28

G.S.SISTANI, J
SANGITAi®«lNGR#SEHGAL, J

¶29

DECEMBER 11,2015 gr

¶30

W.P.(C). No.9353/2015 & Ors.

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Page 3 of 3

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$-41, 43, 44 & 59 to 117 * IN THE HIGH COURT OF DELHI AT	NEW DELHI
^ Judgmentdate	dll"'December,2015
+ W.P.(C)NOS. 11155/2015, 9353/2015,	!9951/2015, 6269/2015, '
1434/2015, 1436/2015, 1452/2015, 6424/2015,	6425/2015, 6426/2015,
6427/2015, 2275/2015, 2688/2015 & 2753/201	, 3099/2015, 2665/2015^
2668/2015, 2670/2015, 6767/2015, 6781/2015,	!.6814/2015, 6951/2015'
6643/2015, 4757/2015, 7726/2015, 8020/2015,	8035/2015, 11375/2015,
11376/2015 & 10960/2015
SURAJ PRAICASH AND ANR. KISPIORILAL SAINI AND ANR	: Petitioners ..... Petitioners
JOGINDERAND ANR	Petitioners
SUIUNDER SINGPI & ANR.	i Petitioners
MEWA LAL PAL & ANR	; Petitioners
BHARAT RAM & ANR	Petitioners
SHIV PRASAD & ANR	Petitioners
RAFIQ & ORS	: Petitioners
DHOOM SINGPI & ANR	Petitioners •
ALINOORANDORS.	Petitioners
GLIANSHYAM SINGH	Petitioner
BHAGWAN DEEN AND ANR.	' Petitioners
RAMESPI KUMAR AND Al4R	Petitioner
OM PRAKA.SH AND ANR	Petitioners
RAIGESPI KUMAR	Petitioner
DIGPAL SINGH CHAUIL-VN AND ANR.	! Petitioners
ASHOK KUMAR AND ANR	Petitioners
JAYANTI PRASAD AND ANR	Petitioners
ASHOK KUMAR AND ORS.	:. Petitioners
RAM SARAN & ORS.	Petitioners
GULJARI & ORS.	Petitioners
MANOHAR LAL AND ORS.	Petitioners
INDER SINGH	Petitioner
RAJENDER SINGH & ANR	Petitioners
DESHRAJ	Petitioner
DURYODHAN	: Petitioner
DAMAN	; Petitioner
SI-ffiTBAHADUR AND ANR. '	' • Petitioners
MUNA LAL AND ANR.	: Petitioners
SHYAM PYAIU3 YADAV	Petitioner

¶33

W,P.(C),No.lll55/2()lHtc,

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Cf IofIS

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UNION OF INDIA & ANR.

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Respondents

¶37

W.P.(C)NOS.4422/20I5, 4796/2015, 6210/2015, 6662/2015, 6691/2015, 4593/2015, 4768/2015, 4891/2015, 6219/2015, 4418/2015, 4932/2015, 6667/2015, 6692/2015, A679/2015, 6715/2015, 6716/2015, 6718/2015, 6828/2015, 6836/2015, 6838/2015, 6870/2015, 6871/2015, 6873/2015, 7222/2015 & CM APPL.13253/2015, W!P.(C)7258/2015 & CM APPL.13320/2015, W.P.(C)7281/2015 & , CM APPL.13357/2015, W.P.(C)9155/2015& CM APPL.20860/2015,•W.P.(C)9805/2015 & CM APPL.23581/2015, W.P.(C)9831/2015 & CM APPL.23703/2015, W.P.(C)9886/2015& CM APPL.23923/2015,W.P.(C)9895/2015& CM APPL.23938/2015AND W.P.(C)10685/2015& CM.APPL27432/2015.

¶38

UNION OF INDIA AND ANR versus	. Petitioners
MEWA LAL PAL AND ANR.	Respondents
KFIUSHlRAM	Respondent
KANCLIANYADAV AND ORS.	Respondents
NANDRAM	Respondent
HARI OM	Respondent
BHARAT RAM AND ANR.	Respondents
RAMJILAL	.....Respondent
SATYAPARKASH	Respondent
LALLU RAM	Respondent
SFllV PRASAD AND ANR.	Respondents
HARISINGFI	Respondent
BIR SlNGFl	Respondent
ALl NOOR & ORS.	Respondents
RAM SARAN & ORS.	Respondents
MAFllNDER SINGH	Respondents •
GULJARl & ORS	Respondents
LOKl	Respondent'
RANJIT SEdGH AND ANF..	Respondents
YAD RAM AND ORS.	Respondents
ROFITAS	Respondent .
RASID,	Respondent
DIWAN SINGH &ANR	Respondents
SAGAR SlNGFl	Respondent
AMAR SlNGFl AND OTFIERS	Respondents .
MUNNA LAL AND ANR	Respondents
NAKU AND ORS	Respondents
RAFIQ AND ORS	Respondents

¶39

W.PMNo.lllSmiSeic.

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Page 7 of /(?

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SATRIiON ; Respondent ARUN KUMAR AND ANR Respondents ABDUL HASSAN AND ANR ^ Respondents MOHD. SAMI , Respondent ANAND SINGH ; Respondent SATYAPRAKASH ' ....Respondent JAGPAL SINGH ' ....Respondent

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APPEARANCE ;

¶43

Mr.J.K. Singh, Advocate for the pctitioner/UOI, in W.P.(C)Nos.4422/2015, 10585/2016, 4796/2015, 6210/2015, 6662/2015, ; 669I/20I5, 4593/2015, 4768/2015, 4891/2015, 4418/2015, 4932/2015, ; 6667/2015, 6692/2015, 3679/2015, 6715/2015, 6716/2015, 6718/2015, : 6828/2015, 6836/2015, 6838/2015, 6870/2015, 6871/2015, 6873/2015, ^ 7222/2015, 7258/2015, 7281/2015, 9951/2015, 9155/2015, 9805/2015, 9831/2015,9886/2015 & 9895/2015.

¶44

Ms.Punam Singh, Adv. for the petitioner in W.P.(C)Nos. 9353/2015 & 4757/2015.

¶45

Mr.A.K.Trivedi,Advocatefor the petitioner, in W.P.(C) 11375-76/2015,143436/2015, 1452/2015, 6424/2015, 6425/2015, 6426/2015,6427/2015 & 6814/2015.

¶46

Mr.R.V. Sinha, Adv. for the petitioner, in W.P.(C)Nos. 6781/2015.

¶47

Mr.V.S.RKrislma,Adv. for the petitioner in W.P.(C)No.6219/2015.

¶48

Mr.Pl.P. Chalaavorti, Advs. for the petitioner, in W.P.(C)Nos. 2665/2015, 2668/2015,2688/2015, 2670/2015, 2753/2015,3099/2015& 6269/2015.

¶49

Mr.Tapas Tyagi and Mr.Rahul Chaudhary, Advs. for the petitioner in W.P.(C)Nos.6767/2015 & 6781/2015.

¶50

Mr.GayaPrasad, Adv. forthe petitioner in W.P.(C) 66^(3/2015.

¶51

Mr.R.K. Shukla, Adv. for the petitioner in W.P.(C) Nos.10960/2015, 2275/2015, 6951/2015, 8020/2015 A 8035/2015.

¶52

Mr.Tapas Tyagi, Adv. for the respondent in W.P.(C)Nos.3679/2015 & 7258/2015.

¶53

W.P.(C). No.insmiSefc.

¶54

kgdoflS

¶55

0-%

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Mr.A.K. Trivedi, Vaibhav Trivedi, Rohit DadwaljAdv. for resDondents R W.P.(C)Nos.4418/2015, 4422/2015, 4593/2015,I 4796/2015 6667/2015 6692/2015,6716/2015&7281/2015&7222/2015. ^ 6667/2015,

¶57

Ml. TarunKumarBliardwaj,Advocatefor the Petitionerin WP(C).l1155/2015

¶58

^9^2015 in W.P.(C),10685/2015,9886/2015& Mi.J.K. Singh, Advocate for the respondents an W.P.(C) 11155/2015 11j75/2015, 11376/2015, 10960/2015, 1434/2015i, 1436/2015, 1452/2015 2275/2015, 2688/2015, 2668/2015, 2670/2015,' 2753/2015,' 3099/2015' 4757/2015, 6269/2015, 6424/2015, 6425/2015,; 6426/2015,' 6427/2015' 6767/2015, 6781/2015, 6814/2015, 6951/2015,: 7726/2015' 8020/2015' 8035/2015,9353/2015,9951/2015,6643/2015&2665/2015.

¶59

CORAM:

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HON'BLE MR. JUSTICE G.S.SISTANI

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HON'BLEMS. JUSTICESANGITADHINGRASEHGAL

¶62

G.S.SISTANI..1 (ORAL)

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With the consentof the parties, all the writ petitionsare taken up for final hearingand disposal.

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These batch of writ petitions can be divided into two sections, i) writ petitionsfiled by the petitionersbefoi-ethe CentralAdministrativeTribunal whereinthe OAs filed by them stand dismissed; ii) writ petitionsfiled by the Union ofIndia, GeneralManager,Northernl^ailway,who were arrayed . as respondents before the Tribunal and who dremlso aggrieved by the orders passed by the Tribunal. For the sake of convenience,first category of the batch of writ petitionswould be referred to as Category-Iand the writ petitionsfiled by the Governmentwould be referredto as Category-II. 3. The petitioners m Category-I approached the Central Administrative Tiibunal as applicationsfiled by them pursuant,to the LiberalizedActive Retiiement Scheme for Guaranteed Employment for Safety

¶65

W.P.(C). No.]1155/2015etc.

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\ Page 4of IS

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7/7

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Staff(LARSGESS)wererejected. It is not necessaryfor this Court to detail the reasons as to why the OAs were dismissedindividuallyas 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.

¶69

The petitionersof CategoryTare aggrievedby this order for the reasonthat in case the Scheme is declaredto be ultra vires, their rights which arise out of this Scheme would not be enforceable. Category-IIpetitionershave assailed this order on the ground that the Tribunal was not competentto 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 CategoryI and II that in the absence of pleadings,opportunityof 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:

¶70

The LARSGESS Scheme was taken up out jof the deliberations in the workshop on safety on Indian Railways, conductedon 12^'' and 13"' July, 2003, a Safety Related Retirement Scheme(SRRS) was introduced in January, 2004, exclusively,for two frontline safety categoriesviz, Drivers and Gangmenwith the approvalof the Ministryof Railways. The working of Drivers and Gangmen have a. critical bearing on safety of train operations and track maintenance. The scheme is framed on the eonsiderationthat given their unique nature of duties with advancingage,

¶71

W.P.(C).m.U 155/20]5 etc.

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Page 5of18

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•n^"iiTr

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the physical fitness and reflexes of staff of these categoriesget impaired thereby causing a safety hazard. The scheme provided that these two categoriesof staffcan seek retirementwith full;pensionarybenefitand also appoint a ward in the same category, i.e., driver's ward as driver and gangmen ssubjectto the conditionthat the ward must possessthe requisite qualificationand also has to pass the requisite;selectionby the Railways. The sole objective of the scheme is to improve safety in train operations and track maintenance.

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¶76

¶77

Counsel also submit that the employees covered under the safety related retirementscheme,developedin house by the MinistryofRailways,belong to critical safety categoriesand the unique nature of duties performedby them has adirectbearingon the safety of train 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 abilitiesand poor reflexes,therebycausingapossiblesafetyhazard. Under the extant rules, the administrationalso reservedthe right to compulsorily retire such staffwhose performanceis not satisfactory. However,as far as safetyis concerned,the need is more for preventionand asituationwhere it would take occurrenceof 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 of voluntaryretirementwhich would carry adequateincentivefor safetystafftd quit afteraprescribedage was acloiowledgedand formedthe basis ofSRRR The scheme was subsequentlyrenamed as LiberalizedActive Retirement Scheme for GuaranteedEmploymentfor Safety Staff(LARSGESS)in the year 2010 and was extetrded to certain otlier specified safety categories with grade pay of Rs.1800/- and, ftntirer to 'those with grade pay of

¶78

W.p. (C). No.II155/2015 etc.

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Page 6 of 18

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'I'lTiI •' rri 'I r i r rinniir n"Ti]TWlHiniEffr Cb)

¶81

Rs.l900/, consequent to the announcements made by, the Minister of Railways,in the budgetspeechof2010 and 201 1 respectively. Fuithei in the year 2014, the followingfive more categoriesin Grade Pay of Rs.1800/- were covered under LARSGRSS with the approval of : Ministryof Railways:-

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i. Electricalpower staffworkingon jtrack. ii. Trackmachinestaffworkingon track. iii. Bride staffworkingon track. ; iv. TRD staffworkingon track. V. PWI Khalasisworkingon track. ;

¶83

Counselhave urged beforethis Courtthat it was;not open to the Tribunalto exatninethe wisdom of the LARSGESS Scheme being amatter of policy and the same couldnot be asubjectmatterbeforeajudicialforum. 10. Additionally,it is contended tlrat the Tribunalhas placed reliance on the orderspassed by the JaipurBench where an idehticalquestionwas decided despite being consciousof the fact that the aforesaidorders passed by the JaipurBench were subjectmatterofawrit petitionand die ordersso passed by the Jaipur Bench were set aside by the RajasthanHigh Court and the matters were remanded back to the Jaipur Bench for fresh hearing. Anothercommongroundraised is tliat once the febunaihad the benefitof the observationsof the RajasthanHigh Court whereinit was observedthat no opportunity was given to the respondents writ petitioners before observationswere made and takingnote ofthe fact that procedurefollowed by the Tribunal was not approved, the Tribunal passed identical orders which was disapprovedby the Rajasthan.High Court.

¶84

Learned counsel for the parties have drawn the attention of diis Court to paragraph 13 ofthe impugnedorder to show that at the time of passingtlie

¶85

p.(C). No.11155/2015 etc.

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Page 7of 18

¶87

-i-ii—I—i—i: —Li—L—L^_LJ :

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impugnedoidei, the Tribunalwas aware that the orderpassedb}/ the Jaipur Bench had been assailed before a Division; Bench of High Court at Rajashtanbeing W. P. (C) 2452/2014. Paragraph13 of the orderpassedby the Tribunal reflects that the RajasthanITigh Court had stayed the order passed by the Jaipur Bench on the ground that no opportunityof hearing was granted to the respondents/writ petitioners before the Tribunal. Paragraph 13 forther reflects that subsequentlyon 16.04.2014,two writ petitionswere disposedof whereinit was held that the procedurefollowed, by the Tribunal in recording the findings in respect of the prepentional scheme introduced by the Railway seeking employment without forcing reasonable opportunityto the UOI could not have been approved by the High Court as the same was not in conformitywith 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'of the Jaipur Bench of the RajasthanHigh Court, which reads as under: '• II "These cross petitions by both the parties have been filed being aggrieved by order of the Tribunah impugned in the instant proceedingsdt.24.09.2013. | '

¶89

It reveals from the record that the originalapplicationno.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 Tribunalafter hearing counsel for petitioners-applicanttook note of scheme of preferentialemploymentintroducedby the Railwaysand had not confined to ihe rights of thd petitioner applicant as to whethei it is valid &ju.stifiedand he. is entitledto claimpreferential employment under the scheme introduced, but the tribunal has exceededin its jurisdictionin examiningvalidityofthe scheme and finallyheld that the scheme is invalid&| unconstitutionalin law.

¶90

W.P.(C).No.1J 155/2015 etc.

¶91

Page„ S of 18„

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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 anotherpetitionfiled by Union of Indiaalso being aggrievedby the order of the tribunal & rightly so since without affording opportunityof hearing and callingupon respondentUnion of India for the object for which the scheme was introducedand 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 requiredto be heard and the finding which has been recordedregardingpreferentialerrlploymentintroducedby the Union of India by the Tribunal certainlycannot be upheld by this Court.

¶93

We have heard counsel for the parties. As both the parties are aggrievedby the order of the tribunalj in our consideredview 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 complywith basic requirenientof law.

¶94

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 Tribunalmay not be influencedfinhibitedby the observationsmade and decide the O.A.' afresh in accordafice with law.

¶95

The order of the tribunalimpugnedinfhe petitions dt.24.09.2013is not legally sustainableand accordinglyquashed & set aside. The OriginalApplicationstands restored and the parties are directedto appearbeforethe tribunalon 12.05.2014and it is expectedfrom the

¶96

IKp.(C). No.11155/2015 etc.

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Page 9 of IS

¶98

tiibunalto decide the OA after the reply being filed expeditiousiyin accordance with law.

¶99

Boththe petitionsstands disposedof. No costs."

¶100

Learned counsel for the parties submit that aftef noticingthe observations of the Division Bench of Jaipur Lligh Court, ithe Tribunal has failed to comply with the observationsand to the contraryfailed 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 absenceof any opportunityto the partiesof hearing, it couldnot be brought to the notice of the Tribunal, the purpose why the scheme was formulated. 13. Learned counselfor the parties contendthat 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 ;

¶101

The observations'of the liigh Coiirt which have been made as the basis for its judgment by the Tribunal were only of advisory nature. The Lligh Court was aware of its limitations under Article 226 of the Constitution of India and 'as such the learned Judge deliberately used the word "advisable" while making the observations.It is neither legal nor proper for the High Courts or

¶102

W.P.(C).No.I1155/2015eic.

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' Page 10 of 18

¶104

ir| • fr-ir-vn •••t-'n.tn'rTriTr'"PITTI'-ln";i

¶105

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 boundto react scowlinglyto any such advice.

¶106

12: XXXXXXXXXX

¶107

The SpecialRules have been framed under Article309 ofthe Constitution of India. The power under Article 309 of the Constitutionof India to frame rules is the legislativepower. This power under the constitutionhas to be eiiercisedby the Presidentor the Governorofa State 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 Constitutionof India. The Courts cannot usuip the functions assigned to the executiveunder the constitutionand canlnot even indirectlyrequire the executiveto exerciseits rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive underAiticle .309 of the Constitution of India."

¶108

Reliance is also placed upon Bharat Amrailal Kothari Vs. Dosukhan SamadkhanSindhi:AIR (2010) SC 47, whereihit has been held that:

¶109

The approachof the High Court in grantingreliefnot prayed foi cannot be approved oy this Court. Every petitionunder Article 226 of the Constitution'mustcontain a reliefclause. Wheneverthe petitionei is entitled or is claiming more than one relief, he must pray for all the reliefs. Under the provisionsof the Code of Civil Piocedure,1908, ifthe plaintiffomits, except with the leave of the court, to sue for any particularreliefwhich he is entitledto get, he will not afterwardsbe allowed to sue in respect of the portion so omittedor relinquished.Though the provisionsofthe Code are not made applicable to the proceedings mnderArticle 226 of the Coristltution,the general principles made in the Civil Procedure Code will apply even to writ petitions.It is, therefore,incumbenton the petitionerto claim all reliefshe seeks!from the court.-Normally, the^ court will grant only those reliefs specificallyprayed by, the petitioner. Phough the court has very vide discretionin granting

¶110

W.P.(C). No.11155/2015 eic.

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Page 11 of IS

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lelief, the court, however, cannot, ignoring and keeping aside the ..onus and pimciples governing grant :of relief, grant a reliefnot even prayedfor by the petitioner.In ICidshnaPriyavs. Universityof Liiclmow[(1984)1see 307], overlookingthe rule relatingto grant 0. a mission to Postgraduatecourse in medical college, the High eouit^ in the^ exercise of, powers ;under Article 226 of the onstitution directed the Medical eduncil to grant provisional admissionto the petitioner.This eourtset aside the orderpassedby the High Court observing that "in his: own petition in the ITigh Court, the respondent has merely prayed for a writ directing the State 01 the Collegeto considerhis case for admissionyet the High Court went a step further and straightway issued a writ of mandamus directingthe College to admit him to M.S. course and thus gianted reliefto tlie respondentwhichhe himselfnever prayed for and could not have been prayed for". Again, in Om Prakashvs. Ram Kumai [(1991) 1 SCC 441], this Court observed, "A party cannotbe gianted a reuefwhich is not claimed,ifthe circumstances of the case aie such that the grantingof such reliefwould result in serious prejudice to the interested party and deprive him of the valuablelights under the statute".Though a High Court has power to mould reliefsto meet the requirementsofeach case, that does not mean that the draftsmanof awrit petitionshouldnot apply his mind to the pioper reliefwhich 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 iunderArticle 226 of the Constitutionsuo motu but was examining the validity of order passedby the AdditionalChief.ludicialMagistraterefusingto grant custody of goats and sheep to the respondentNos. 1 to 6, in the Special Criminal Application, which was filed by them under Article 226 of the Constitutionthrough awere representedby a senior counsel practicing in the Gujarat High Court and having legaidto the facts ofthe case, the learnedlawyerwas JustifiedOnly' 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 learned Chief Judicial Magistrate, Dedsa, refusing to hand over CListodyof the goats and sheep seizedto them, was illegal and were also seeking quashing of the said order. At no point of time, the learned advocate for the respondentNos. 1to 6had moved'any applicationseeking permissionof the Court to amend the prayer clause containedin the petitionso as to enable the respondentNos. 1 to 6 to claim compensationfrom the appellant No. 1. A fair

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f'KP.(C). No.11155/2015 etc.

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Page 12 of 18

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mLaZHDHEE

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readingof the petitionmaltes it more than.rlearthat no factual data latsoeverwas laid by the respondeiitNos. 1to 6 for claiming to°Tn0m w hichWernf" manner they or any of them had sufferedmentioneddamage oras ss because of the handing over of custody of goats and sheep to Ae appel ant No. 1 and ultimately;ho the respondent No 8 Panjaiapolesituatedat Patan nor the appellantNo. 1was permitted to conta-overtthat in fact no damage dr loss was suffered by the 1espondentNos^ 1to 6or any ofthem. There is no mattnerof doubt 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 a gross injusticeto the- notice of the 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 suffereddamage or loss becauseofhandiingover of goats and sheep to the appellantNo. 1and/orto the respondentNo. 8, dependsupon facts to be proved. Normally, such an exercise cannot be undertaken in a writ tiled underArticle 226 of the Constitution. This Court furtherfinds that the appellantNo. 1is not only directed to pay, by way of compensationand cost, to each of the respondent Nos. 1to 6asum of Rs.75,000/-but is; flirther directedto 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 accordancewith the provisionsof sub-Section(4) of Section 35 of the Act. To mentionthe least, it is evidentthat the respondentNos. to 6 are not parties to Criminal Inquiry Case No. 237 of 2008 which is pending before the learned Chief Judicial Magistrate' alanpur. As observedearlier,the said inquiryhas been initiatedat the instanceof one of.the aides of the accused. In the said inquiiw the questionposed for determinationof the learned ChiefJudicial Magistrate,Palanpur,,would be whether the appellant No. 1 and others with police personnel had committed loot of trucks with pats and sheep and also cash amount of Rs.1,11,000. The said on today nor any finding is rendered iiat the appellantNo. 1and others with the aid of policepersonnel ad committed loot of the articles mentioned in the complaintof that case, fherefore, the appellant Not 1 could not have been directed to pay compensationand costlto 6 without prejudice to leir rights and contentionsin the criminalproceedingsinitiatedby way of CriminalInquiryCase No. 237 of 2008. Moreover,no claim was advancedby the respondentNo. 8hereinthat the appellantNo.

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f'V.P.(C). No.ll 155/2015etc.

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Page 13of 18

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:ir"!n n • |Tnri-ir-ntT'^;n utr.ry;'

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1 should be directed to pay, on behalf of the owners le the respondentNos. 1to 6, the cost of maintenanceand tretoeM of me animals in questionmaccordancewith the provisionsof subSection(4) ofSection35 ofthe Act. Normally,cLt ofmamtena"e and heahnentofthe animalsin such cases would be payableby one who claims custodyor who are the owners ofthe live stock but not by the complainant.In the instant case the assertionmade by the ppellmit No. 1IS that he was handed,over custody of goats and sheep by the police after registrationof FIR seems to be that the appel ant No. 1had taken possessionof the live stock and trucks 1legallybefore the FIR was lodged and|had acted in ahigh handed manner. Ihe dispute whether appellant No. 1 was handed over custody of goats and sheep after filing of the complaintor whether he had obtained custody of goats and; sheep illegally before the complaintwas lodged,will have to be adjudicatedupon evideneeto be lead by the parties.Such ahighly coiitentiousdisputecannotand could not be resolved in a petition' under Article 226 of the Constitution. Having regard to the totality of the facts and ciicumstancesemergingfrom the record;ofthe case, this Court is of the firm opmionthat there was no justifibationat all in directingthe appellantNo. 1to pay asum of Rs.75,000/-towards compensation and cost to each of the respondentNos.-1 to 6 and to pay to the lespondentNo. 8 herein the cost of maintenanceand treatmentof ftie animals in question on behalf of the respondentNos. 1 to 6. xheiefoie,this diiectionis also liableto be set aside."

¶121

In the case of Sumangala Naganath Vs. Union ofIndia and Ors. : 1999

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see (L&S) 1318, it has been held that:

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_ This Rule clearly sets out that 50% of the vacancies in the Senior Scale will have to'be filled by transferof officersbelonging to Class I services under the Ministry:ofRailways. However it excludes the Indian Railway Medical Service-. The class of the serviceswhich are intendedto be excludedare clearlyspelt out and It is the Indian Railway Medical Service and not any other service under the control of Ministry of Railway, when the fact that the appellantwas servingin the Ministryof Railways is not in dispute. It IS hardly open to anyone to state that she is not eligible to be considered for appointment to IRPS under the Rule referred to • above. It was not open to the Tribunal to examine the wisdom of making such a Rule v/hich enables them to make such lateral

¶124

W.P.(C).No.lll55/20]5eic.

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Page 14 of18

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inductioninto IRPS. Such a questionis a matter ofpolicy and not debatablein ajudicialforum. When appointmentof the appellantis in terms of that Rule' and falfils all conditions of eligibility,the Tiibunal could not state whether she is suitableto be appointedor not. Wliat baffles us most is that in spite of the Rule clearly enabling appointment of the appellant, the Tribunal should have been persuadedby the view of the UPSG expressedearlier. When UPSC acceptedrecommendationon the present occasion, it is not laiown as to whether the Tribunal could imagine that the opinion expiessedearlier was not Icnown to it.' The assumptionappears to be wholly incorrect.

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Also in the case ofState oj Punjab and Ors. Vs. Ram LubhayaBagga : AIR 1998 SC1703, it has been held that :

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•29. No State of any country can have unlimited resources to spend on any of its project.That is whyj it only approvesits projects to the extent it is feasible. The same holds good for providing medmal facilitiesto its citizenincludingits employees.Provisionof facilities cannot be unlimited. It has to be to the extent finance peimit. If no scale or rate is fixed then in case private clinics or hospitalsincreasetheir rate to exorbitantscales, the State would be bound to reimbursethe same. Hence we come to the conclusionthat piinciple of fixation Pf rate and scale under this new policy is justifiedand cannot be held to be violativeof Article 21 or Article 47 of the Constitution of India.

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j5.^ ^ Learned Counsel for the appellant submits that in the Writ petitionfiled, the respondentdid not specificallychallengethe new policy of 1995. If that was done the State would have placed all such material in detail to show the financial strain. We having consideredthe submissionof both the parties,on the aforesaidfacts an ^ciicumstances,hold that the appellant'sdecisionto excludethe designated hospital cannot be said be such as to be violative ofArticle 21 of the Constitution.No right could be absolute in a welfare State. Aman is a social animal: He cannot-livewithoutthe cooperationof large number of persons. Every article one uses is the contributionof many. Hence everyindividualright has to give way to the right of public at large. Not-every findamental right under-Part III of the. Constitutionis not absolute and it is o be within permissible reasonable restriction. This principle equally

¶130

W.P.(C). NO.111S5/2015etc.

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Page 15 Of18

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J-LZJLDlliimr

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applieswhen there is any constrainton the healthbudgeton account of financialstringencies.But we do hojle that governmentwill give due considerationand priority to the health budget in future and renderwhat is best possible.

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We have heard counsel for the parties and considered their rival contentions.

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Counselfor all partiespray that the orderpassdd by the Tribunalby which it has been held that the LARSGESS Scheme is ultro. vires of the Constitutionbe set aside. Common submissionshave been made by the counsel lor all the parties that parties were iiot granted'opportunityto address argumentswith respectto the vires of the scheme. Counsel also uniformly.submitthat no pleading exists on the record of the Tribunal with respect to the vires of the Scheme. Coiinsel flirther submittedthat both the CategoriesI&II supportthe schemeand submitsthat it is for the safetyofthe passengersand also for the staffof the Railway. Counselfor the parties strongly urged before the Coilrt that the scheme was formulatedhaving regard to the working of Driver and Gangmen, who play a crucial role with regard to the safe:runningof the train and maintenanceof the tracks. The scheme was thereafterextendedto three categories all of which are concernedwith the safety of the run of the tiain. Counsel ftirther submittedthat a complete reading of the scheme would show that stringent safeguards have been worked out and only theieafterthe schemewould be implemented. 19. In the case of MalUkarjunaSao and Ons.(supra),the Apex Court has frowned upon the observationsof the High Court and observedthat it is neither legal iror proper for tire High Courts or the Administrative Tribunals to issue directions.or advisory-serihonsto the executive in lespect of the sphere which is exclusivelywithin their domain. Similar

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^y-P-(C). No.11155/2015etc.

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; Page16of18

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view has been expressed in 1.the case of SiimangalaNaganath{sivgr2i), wheiein it was held that a matter of policy is not debatable in judicial foium. In the case of Bharat Amratlaliro/^/7.an(supra),the Supreme Couit of India aftei observingthat althoughthe provisionsof the Code of Civil Procedureare not applicableto proceedingsunder Article 226 ofthe Constitutionof India but the general principlesof the Code would apply. The Apex Court also observedthat the Court would also grantthose reliefs specificallyprayed by the petitioner,although;the High Court had wide powers under Article 226 of the Constitution of India and would be empoweredto mould rehefto meet the ends ofjusticebut grantingarelief not prayed for would result in serious prejudiceto the rights of interested party.

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Having regard to the submissionmade and the Settledpositionof the law, we find that the Tribunalhas exceededits jurisdictionand decidedan issue which was neitherurged beforethe Tribunalnor the partieswere heard on this issue. We are rather sui-prised that once the observations of the DivisionBench of Jaipur High Court was availablewith the Tribunal and lepioducedby the Jribunalin para 13 ofthe impugnedorder, there was no reason as to why the Tribunal decided to ignore those directions, even otherwise, in the absence of the observations;in our view the Tribunal could not have decided an issue on which there were no pleadingsand no opportunityof hearinggranted. Resultantly,w6 allow these writ petitions and remandthe mattersback for fresh hearing. Impugnedorders in all the writ petitionsare set aside. All writ petitionsand pendingapplicationsare disposed of.

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These matters will be talfen up before the! Joint Registrar, Central AdministrativeTribunal on 12"' January, 2016 t>, fix a date before the appropriateBench ofCentralAdministrativeTribunal.

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yv. p.(C). No.11155/2015 etc.

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Page 17of 18

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r-y'

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W. P. (C) Nos. 1434/2015,1436/2015 and 1452/2015 22. It is agreedthat the interimorder will continuetill the hearingofthe OAs. W. P. (Q 7222/2015 '

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