Ram vs Union Of India And Ors

The applicant has filed the present OA, seeking the following reliefs:-

"(a) Directing the respondents to place the relevant records pertaining to the present OA before their Lordships for the proper adjudication in the matter, in the interest of justice.

(b) Quash and setting aside the impugned order dt. 21.09.16 declined the request of the applicant for compassionate appointment after declaring the same is biased, perverse, deliberate and against the principles of natural justice further directing the respondents to reconsider the request of the applicant for compassionate appointment in its real spirit.

(c) Allowing the OA of the applicant with all other consequential benefits and costs.

(d) Any other fit and proper relief may also be granted to the applicant."

The applicant in this OA is mainly aggrieved by the impugned order of respondents dated 21.09.2016 whereby his request for compassionate appointment had been rejected by the respondents on the basis of the Railway Board letter No.E.(NG)II/91/RC-136 dated 02.01.1992 which clearly provides that compassionate ground appointment to second wife and her wards are not to be considered. The applicant has pleaded that the aforesaid circular dated 02.01.1992 on the basis of which his request for compassionate appointment was rejected, had already been declared as not sustainable in the eyes of law by the Hon'ble High Court in the case of Namita Goldar & Anr. Vs. UOI & Ors. in WPCT No. 20/2009 decided on 10.02.2010 wherein the following directions were issued:-

"3. The Supreme Court in the case of Rameshwari Devi v. State of Bihar v. State of Bihar & Ors. reported in 2000(2) SCC 431 specifically held that the second marriage during the subsistence of first marriage may be illegal but the children born out of such second marriage are legitimate and are also entitled to the estate of the father. Paragraph 14 of the aforesaid judgment is set out hereunder:-

"It cannot be disputed that the marriage between Nariain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act children of a void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstly on heirs in Clause

(1) which include the widow and son. Among the widow and son, they all get shares (See: sections 8,10 and the Schedule to the Hindu Succession Act, 1956) . Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain lal being void. The sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain lal. That is, however, the legal position when a Hindu male dies intestate."

Admittedly, in the present case, second marriage of the deceased employee was accepted by the first wife since she never challenged the said second marriage and did not even lodge any complaint before the railway authorities for taking appropriate action against the said deceased employee for contracting second marriage and therefore, we have no difficulty to accept that the deceased employee married for the second time upon obtaining specific consent from the first wife. There is also no dispute that the said deceased employee used to live with both the wives and the four children of the second wife. Since the first wife died shortly after the death of the deceased employee, family pension and other retiral benefits were also disbursed to the second wife and his children. The compassionate appointment was claimed by the eldest son of the second wife, as the first wife was issueless and also died shortly after the death of the employee concerned.

In view of the decision of the Apex Court in the case of Rameshwari Devi (supra), the children of the second wife cannot be treated as illegitimate and referring to Section 16 of the Hindu Marriage Act specifically held that children of a void marriage are legitimate.

In view of the law as settled by the Supreme Court, no distinction can be made amongst the children of the first and second wife of a deceased employee. In the present case, however, first wife was issueless and died shortly after the death of the employee concerned.

Therefore, the eldest son of the second wife, namely, the petitioner No.2 herein is entitled to claim appointment of compassionate ground on account of the sudden death of the employee concerned.

The learned Tribunal, in our opinion, has rightly held that the claim of the petitioner no.2 herein for compassionate appointment cannot be turned down on the ground it was done although the learned Tribunal did not issue any mandatory direction on the respondents authorities for granting compassionate appointment to the said son of the second wife, namely the petitioner no.2 herein and directed the General Manager, Eastern Railway to refer the matter to the Railway Board for taking decision. We are, however, of the opinion that the circular issued by the Railway Board on 2nd January 1992 preventing the children of the second wife from being considered for appointments on compassionate ground cannot be sustained in the eye of law in view of the specific provision of the Hindu Marriage Act, 1955 and pursuant to the decision of the Hon'ble Supreme Court in the case of Rameshwari Devi (supra).

In the aforesaid circumstances, the aforesaid circular issued by the Railway Board on 2nd January, 1992 stands quashed to the extent it prevents the children of the second wife from being considered for appointments on compassionate ground.

For the reasons discussed hereinabove, we direct the respondents railway authorities to allow the claim of the petitioner No.2 for appointment on compassionate ground and issue appropriate order of appointment in faovur of the said petitioner No.2 without any further delay but positively within a period of two months from the date of communication of this order.

This writ petition thus stands allowed. There will be, however, no order as to costs."

The applicant, while relying upon the aforesaid decision of the Hon'ble High Court, has sought direction to the respondents to reconsider his request for compassionate appointment in its real spirit.

The respondents, while contesting the OA, have filed their CA in which they have stated that after a gap of 24 years from the date of the death of his father, i.e., 19.10.1982, the applicant had requested for appointment on compassionate grounds. The respondents have contended that being an old case, no record was available in the office and a fresh inquiry was conducted. They have further submitted that during the inquiry, it was found that deceased employee was survived by two wives, namely, Smt. Mangli Devi (1st wife) and Smt. Bhagi Devi (2nd wife) and without legal separation from 1st wife, i.e., Smt. Mangli Devi, ex-employee had remarried with Smt. Bhagi Devi. They have contended that as per Railway Board letter dated 02.01.1992, it is clarified that in case of Railway employee dying in harness etc., leaving more than one widow along with children born to the second wife, while settlement dues, may be shared by both the widows due to court orders or otherwise on merits of such case, appointment on compassionate ground to the second widow and her children are not be considered unless the administration has permitted the second marriage. They have thus on the basis of the said circular had rejected the claim of the applicant being the ward of second wife and at the time of death of ex-employee, 1st wife was alive who had also expired on 04.01.2000. The respondents have also submitted that the OA is barred by limitation under the provisions of Section 21 of the AT Act as the applicant had applied for the appointment on compassionate ground after a gap of 23 years of the demise of his father.

After hearing both the parties and perusing the record, quite clearly, the circular dated 02.01.1992 issued by the Railway Board has been quashed to the extent it prevents the children of the second wife from being considered for appointment on compassionate grounds by the Hon'ble High Court of Calcutta vide their judgment dated 10.02.2010 passed in the case of Namita Goldar (supra). Hence, rejection of the applicant's claim for consideration of compassionate appointment by the respondents on the basis of the aforesaid circular is not at all tenable in the eyes of law and also in view of fact that even the children of void marriage of the second wife under Section 16 of the Hindi Marriage Act cannot be treated as illegitimate in light of the decision of the Apex Court in Rameshwari Devi (supra) as referred to in Para 2 of this order. The objection raised by the respondents with regard to limitation is also rejected in view of the fact that the applicant had applied for grant of compassionate appointment as per the DoPT OM No. 14014/02/2012-Estt.(D) dated 16.01.2013 which clarifies that there is no limitation of time for a person to apply for compassionate appointment. Hence, in view of the factual position as also the legal preposition, the respondents are directed to reconsider the case of the applicant for compassionate appointment in the meeting of the Screening Committee at the earliest in light of the aforesaid OM dated 16.01.2013 and inform the applicant of this OA of their decision within one month after holding of the said meeting.

With the above directions, the OA is allowed. No costs.