L.N. Mittal, Member (J).

1. Railways (respondents) floated Safety Related Retirement Scheme (in short, the Scheme) inter-alia providing for retirement of Railways employees of certain categories of Safety Staff and simultaneous appointment of wards of the employees, subject to certain conditions. The applicant Sukroo applied under the Scheme, but benefit thereof has been denied to him vide letter dated 01.07.2013 (Annexure A-7) and letter dated 09.09.2013 (Annexure A-11). According to letter (Annexure A-7), the applicant was found to be not eligible being over age for the period July 2012 and January 2013. Vide letter (Annexure A-11), the applicant was denied benefit of the Scheme for second half of the year 2011 on the ground that last date of receipt of applications was 31.07.2011, but incomplete application of the applicant was forwarded by respondent no. 3 to respondent no. 2 on 29.09.2011 and the applications received late could not be entertained. In the O.A., the applicant has challenged the aforesaid letters Annexures A-7 and A-11 and has sought direction to the respondents to consider his case under the Scheme and to appoint his ward in terms thereof. The applicant alleged that he was fully eligible under the Scheme. He had submitted his application on 16.03.2011 which was forwarded by respondent no. 4 on 19.03.2011 i.e. well within time.

2. Respondents in their reply while admitting the factual position controverted the claim of the applicant and alleged that the Scheme is a package of retirement and recruitment and there is no vested right of applicant to seek benefit of the Scheme. It was also alleged that all the 79 persons including the applicant were found ineligible being over age. Various other pleas were also raised.

3. Applicant filed replication controverting the stand of the respondents and reiterating his own version.

4. We have heard counsel for the parties and perused the case file.

5. Counsel for the applicant contended that the applicant had applied under the Scheme on 16.03.2011 for second half of the year 2011 and eligibility was to be seen as on 01.07.2011 and he was fully eligible under the Scheme as on 01.07.2011. It was submitted that his application was forwarded by respondent no. 4 vide letter dated 19.03.2011 (Annexure A-4) i.e. well in time to respondent no. 3. Vide letter dated 09.06.2011 (Annexure A-5), the record called for was also sent. There is also noting to this effect at page 23 of the paper-book. Applicants son was also called for test. It was argued that the applicant cannot be made to suffer if the authorities sent his application belatedly to the higher authorities or sent the same incomplete i.e. without annexing record or documents required to be attached by the authorities themselves. Reliance has been placed on order dated 23.09.2013 of this Tribunal in O.A.No. 743-PB-2008 titled Om Parkash Vs. UOI & Ors. and affirmed by Honble High Court in CWP N. 5462 of 2014 Union of India and Others Versus Om Parkash and Others decided on 03.09.2015.

6. On the other hand, counsel for respondents vehemently contended that the Scheme is an exception to Articles 14 & 16 of the Constitution and has been framed with the objective of ensuring safety and security in the operation of the Railways. Consequently retirement could be sought upto the age of 57 years only. Reference was also made to clauses 2(ii), (vii), (xii) and (xiv) of the Scheme (Annexure R-1) and paragraph 4 of the modification of the Scheme Annexure R-2. Same are reproduced herein under:

(ii) Under the Scheme, Drivers and Gangmen in the age group of 50 to 57 years may seek retirement.

(vii) Application from those who propose to retire under this scheme will be taken once in a year. The cut off date for reckoning the eligibility of employees for seeking retirement under this scheme will be 30th June of the respective year. All conditions of appointment for the ward of such retires such as age limits, educational qualifications etc. will also be determined with reference to that date.

(xii) 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.

(xiv) Since the Safety Related Retirement Scheme is a package having no nexus with any of the existing scheme, no weightage towards qualifying service will be admissible to the employees who seeks retirement under this scheme. The wards appointed under this scheme will not be allowed to change their category, except as is being allowed under the already existing rules.

4. It is also reiterated that the retirement of the employee be considered only if the ward is found suitable in all respects. Retirement of the employee and appointment of the ward should take place simultaneously.

It was also submitted that the Scheme is a package providing for voluntary retirement of the employees and simultaneous employment of their wards, but the applicant has now since retired and, therefore, he is not entitled to the benefit of the Scheme. Reliance has been placed on Order of this Tribunal dated 17.01.2014 (Annexure R-4) in O.A. NO. 912-PB-2013 titled Ganpat & Others Vs. General Manager, Northern Railways and Others and connected O.As. Reference was also made to the order of this Tribunal in O.A. No. 060/00 337/2014 titled Amar Nath & Another Vs. Union of India & Others decided on 05.11.2014. Counsel for respondents also contended that the applicant has no vested right under the Scheme which is an exception to Articles 14 & 16 of the Constitution. Reliance has been placed on the judgments of Honble Supreme Court in the case of National Institute of Technology and Ors. Vs. Niraj Kumar Singh [AIR 2007 SC 1155 [LQ/SC/2007/131] ] and I.G. (Karmik) and Ors. Vs. Prahlad Mani Tripathi [AIR 2007 SCW 3305]. It was also submitted that eligibility of the ward has also to be seen as in the case of direct recruitment. It was also argued that the case of Om Parkash (Supra) is distinguishable on facts and no principle of law was laid down in the said case which was based only on peculiar facts of the case and on the principle of equity. It was also submitted that para 17 of the judgment of Honble High Court in the case of Om Parkash (Supra) is contrary to the Scheme as well as contrary to the judgment of the Tribunal in the case of Amar Nath (Supra).

7. We have carefully considered the matter. As regards letter Annexure A-7, whereby claim of the applicant for benefit of the Scheme for July 2012 and January 2013 was rejected on the ground of the applicant being over age, counsel for the applicant could not advance any meaningful argument to assail the same. Date of birth of the applicant is 15.06.1955. He had crossed the age of 57 years as on 01.07.2012 for being considered for the aforesaid period and, therefore, he was rightly held ineligible for the same being overage.

8. However, letter Annexure A-11 rejecting the claim of the applicant for 2nd half 2011 is completely untenable. The said claim has been rejected on the ground that respondent no. 3 forwarded incomplete application of the applicant and it was forwarded to respondent no. 2 on 29.09.2011 i.e., after the last date of 31.07.2011. However, on both these grounds, the applicant cannot be made to suffer. Respondent no. 4 forwarded application of the applicant to respondent no. 3 vide letter dated 19.03.2011 (Annexure A-4) i.e. very well in time. Respondent no. 4 also sent the relevant service record of the applicant to respondent no. 3 vide letter dated 09.06.2011 (Annexure A-5), again well within time. However, even thereafter respondent no. 3 forwarded application of the applicant to respondent no. 2 belatedly on 29.09.2011. The applicant cannot be blamed for the said delay. Similarly, if the said application lacked any documents which were to be annexed by respondents no. 3 & 4 and the same were not annexed by them, the applicant cannot be blamed for the same. It was for respondents themselves to have done the needful before the stipulated date. The applicant had done whatever he could do well within time and submitted his application on 16.03.2011 i.e. four and half months before the last date stipulated for receipt of applications. Further lapse, if any, lies on the part of the respondents themselves for which they cannot make the applicant to suffer. If eligible persons are to be ruled out and ignored in this fashion, then it will be a tool in the hands of the authorities at different stages to arbitrarily exclude any eligible person. This cannot be permitted. The applicant was fully eligible for 2nd half of 2011 and grounds taken to reject his claim cannot be accepted because it was fault of the respondents themselves and not of the applicant. In this view, we are supported by the order of the Tribunal as well as Judgment of Honble High Court in the case of Om Prakash (Supra).

9. Contention of counsel for respondents that judgment in the case of Om Prakash (Supra) is distinguishable and no principle of law was laid down in that judgment is completely misconceived and untenable. It has been held by Honble High Court that the employee had applied in accordance with the provision of the Scheme well within time, but it were authorities who have kept his application pending and so they cannot take benefit of their own wrong. In the instant case also, the applicant applied well in time and if the respondents kept his application pending, they cannot take advantage of their own wrong. In that case also, the employee Om Prakash had since retired, but it was held by Honble High Court that mere fact that the employee had retired subsequently is also no ground to reject his claim. In the instant case also, the fact that the applicant has now since retired is no ground for not granting benefit of the Scheme to him. Judgment of Honble High Court in the case of Om Prakash (Supra has laid down the principles of law to the aforesaid effect and the said judgment is fully applicable to the facts of the instant case and is not distinguishable in any manner.

10. Contention of counsel for respondents that paragraph 17 of the judgment of Honble High Court in the case of Om Prakash (Supra) is contrary to the Scheme and is contrary to the judgment of this Tribunal in the case of Amar Nath (Supra) is, to say the least, completely absurd and untenable. The counsel practically argued that the said judgment of the High Court is wrong. This could not be argued before this Tribunal. The counsel also based his argument on the basis of order of this Tribunal in the case of Amar Nath (Supra). However, the judgment of the High Court could not be assailed on the ground of being contrary to the judgment of this Tribunal.

11. It is thus apparent that the applicant has to succeed because he was fully eligible for 2nd half of 2011 and there was no lapse on his part. The respondents cannot take benefit of their own wrong by delaying the processing of the application of the applicant. His case is fully covered by the judgments of this Tribunal and Honble High Court in the case of Om Prakash (Supra).

12. Judgment of the Tribunal in the case of Amar Nath (Supra) is completely distinguishable because in that case, ward of the employee could not clear the test in the first chance. Scheme also provided for a 2nd chance, but when the test for 2nd chance was held, the employee had become over age. So said judgment has no applicability to the facts of the instant case. Similarly, judgment in the case of Ganpat and Ors. (Supra) has no applicability to the facts of the case in hand because in that case, the applicants had already crossed the age of 57 years as on 01.07.2011 the stipulated date and so they were not eligible under the Scheme. In the case in hand, the applicant had not crossed the age of 57 years as on 01.07.2011 and so the said judgment has no applicability to the case in hand.

13. The contention that the Scheme is a package of retirement of the employee and simultaneous appointment of the ward also cannot be accepted to thwart or reject the claim of the applicant under the Scheme. The applicant applied under the Scheme for the package i.e. for his voluntary retirement and for simultaneous appointment of his ward. If the respondents themselves by delaying the processing of the application and then rejecting his claim illegally have brought out the situation that the applicant has in the meantime retired, they cannot take advantage of their own wrong and the applicant cannot be made to suffer for the wrong action or inaction of the respondents. This view finds support from the judgment of Honble High Court in the case of Om Prakash (Supra).

14. Contention based on various clauses of the Scheme also does not justify the rejection of the applicants claim. Applicant complied with the aforesaid clauses of the Scheme as referred to by counsel for respondents. He fulfilled all those conditions. It goes without saying that the applicants ward has to be considered for appointment as per conditions of eligibility for direct recruitment from the open market as mentioned in the Scheme. The applicant may not have a vested right to seek appointment of his ward, but the applicant definitely has vested right under the Scheme to be considered for the benefit of the Scheme by seeking his own retirement and simultaneous appointment of his ward. Applicants ward is to be appointed only if he is suitable in all respects.

15. The Scheme is an exception to Articles 14 & 16 of the Constitution. However, the respondents themselves have floated the Scheme and they are following it also. They have not challenged or withdrawn the Scheme. Consequently, the applicant is entitled to the benefit of the Scheme being fully covered by it. Judgments in the case of Niraj Kumar Singh (Supra) and Prahlad Mani Tripathi (Supra) do not help the respondents in any manner. If exception to Articles 14 & 16 of the Constitution has been carved out by the Scheme in question or by any other Scheme like the Scheme for Compassionate Appointment, such Scheme having exception has to be carried out in letter and spirit. Benefit of the Scheme cannot be denied to the applicant in arbitrary manner.

16. Before parting with the order, we would like to observe that lot of litigation is being generated unnecessarily only because the respondents delay the processing of the applications, there being no role of the applicants seeking benefit of the Scheme, in causing such delay. If an employee submits his application in time, but the authorities forward it to the Competent Authority belatedly after expiry of last date, as in the instant case, the authorities themselves have to be blamed for the same. The employee cannot be made to suffer for the delay caused by the authorities. To avoid such litigation, it is suggested that last date may be prescribed for submission of application by the employees and not for receipt thereof by the higher competent authority. The application has to go to the competent authority through proper channel for which the authorities have to do the needful within time. Consequently instead of stipulating last date for receipt of applications in the office of the competent authority, last date should be stipulated for submission of applications by employees or some other proper solution should be found out for this problem which gives rise to avoidable and unnecessary litigation.

17. As a necessary conclusion of the discussed aforesaid, the instant O.A. is allowed and while upholding letter Annexure A-7, letter Annexure A-11 rejecting the claim of the applicant for benefit of the Scheme for 2nd half of the year 2011 is quashed. Respondents are accordingly directed to consider the claim of the applicant under the Scheme (notwithstanding his subsequent retirement) and appoint his ward in terms of the Scheme if otherwise found suitable. The needful be done within four months of the receipt of copy of this order. The respondents are also directed to pay Rs. 10,000/- as cots to the applicant.