Utkarsh Dixit And Ors vs Union of India And Ors

The present Original Application has been filed by the applicants Utkarsh Dixit and Divya Dixit children of deceased Ramesh Chandra Dixit under section 19 of Administrative Tribunals Act, 1985 seeking following reliefs:-

"(i) To quash the impugned order dated 29.09.2009 (Annexure No. A-20)

(ii) To issue a direction in nature of mandamus, commanding the respondents to provide the compassionate appointment in favour of applicant No.2.

(iii) To award cost to the applicant".

Case of applicants is that their father Ramesh Kumar Dixit died in harness on 30.05.2000. The railway authorities have disbursed the retiral benefits including family pension in favour of their mother Smt. Ram Devi who filed an application for appointment of her son (applicant Utkarsh Dixit) on compassionate basis on 06.06.2001 which has been rejected by the respondents on the ground that Smt. Ram Devi is the second wife of the deceased Ramesh Kumar Dixit. The applicants attack the impugned order on the ground that the first wife of deceased Ramesh Kumar had expired and he married Smt. Ram Devi after the death of his first wife and therefore the circular dated 02.01.1992 is not applicable to the facts of the present case and so, the impugned order being illegal and arbitrary deserves to be set aside.

As per the impugned order dated 29.09.2009, respondent has rejected the application for compassionate appointment of the applicant on the ground that compassionate appointment cannot be given to the second wife or her children unless the administration has permitted the second marriage.

In the counter affidavit the respondents admit that applicant is the son of Ramesh Kumar from his second marriage and his first wife has expired and from the first marriage there is a daughter namely Smt. Ruchi. It is further case that as per circular of the Railway Board compassionate appointment to the second wife and her children cannot be considered and therefore applicant is not entitled to compassionate appointment.

I have heard and considered the arguments of the learned counsels for the parties and gone through the material on record as well as the written arguments filed by the learned counsel for respondents.

Respondents have relied upon Railway Board's letter No.E(NG.ii/91)/RC-1/135 dated 02.01.1992 that the appointment on compassionate ground to second widow and her children are not to be considered. The contents of the above letter quoted by the respondents their counter affidavit reads thus:-

"that in case of railway employee dying in harness etc. having more than one widow along with children born to 2nd wife, while settlement dues may be shared by both the widows due to court orders or otherwise on merits of each case, appointments on CG to second widow & her children are not to be considered unless the administration has permitted the second marriage in special circumstances, taking into account the personal law etc. The fact that the second marriage is not permissible is invariable clarified in the terms and conditions advised in the offer of initial appointment. This may be kept in view and the cases for compassionate appointment to the second widow or her wards need not be forwarded to the Railway Board."

The Hon'ble Calcutta High Court has also decided the similar issue in the case of Smt. Namita Golder & Anr. Vs. Union Of India & Ors decided on 14 July, 2010 following the judgment of Hon'ble Supreme Court in the case of Rameshwari Devi vs. State of Bihar & Ors., reported in 2000(2) SCC 431, by holding that the children of the second wife cannot be treated as illegitimate. Hon'ble High Court of Calcutta in the case of Smt. Namita Golder & Anr. Vs. UOI & Ors in W.P.C.T. 102 of 2010 has held as under:- "The claim of the petitioner no. 3 for appointment on compassionate ground being the son of the second wife cannot be rejected on the basis of the circular issued by the Railway Board on 2nd January, 1992 since this Court while deciding the aforesaid case of Smt. Namita Goldar & Anr. (supra) already quashed the said circular issued by the Railway Board on 2nd January, l992 to the extent it prevents the children of the second wife from being considered for appointment on compassionate ground.

"For the reasons discussed hereinabove, we are also of the opinion that the respondent authorities herein were not justified in rejecting the prayer of the petitioner no. 3 for compassionate appointment on the ground that the said petitioner No. 3 is the son of the second wife. Therefore, the decision of the respondent authorities as was communicated to the petitioner no. 1 by the written communication dated 20th August, 2007 cannot be sustained and the same is accordingly quashed."

The objection raised by the respondents is that in terms of Circular/letter No.E(NG.ii/91)/RC-1/135 dated 02.01.1992, compassionate appointment cannot be considered for the children i.e. applicant-son of second wife Smt. Ram Devi is to be rejected in view of the law laid down by the Hon'ble Apex Court in CIVIL APPEAL No.12015 OF 2018 titled Union of India and another v/s V.R. Tripathi dated 11.12.2018 (Source: sci.gov.in) wherein it was held that that the benefit of compassionate appointment scheme cannot be denied to the children born out of a second marriage. It was held that :-

"In the view which we have taken, we have arrived at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires. A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar in Union of India v M Karumbayee. A Special leave petition filed against the judgment of the Division Bench was dismissed by this Court on 18 September 2017.

We may, however, clarify that the issue as to whether in a particular case, the applicant meets all the stipulations of the scheme including financial need and other requirements are matters which will be decided on the facts of each individual case.

Finally, it would be necessary to dwell on the submission which was urged on behalf of the respondent that once the circular dated 2 January 1992 was struck down by the Division Bench of the Calcutta High Court in Namita Goldar (supra) and which was accepted and has been implemented, it was not thereafter open to the railway authorities to rely upon the same circular which has all India force and effect. There is merit in the submission. Hence, we find it improper on the part of the Railway Board to issue a fresh circular on 3 April 2013, reiterating the terms of the earlier circular dated 2 January, 1992 even after the decision in Namita Goldar (supra), which attained finality.

For the above reasons, we do not find any merit in the appeal. The authorities shall take a decision in terms of this judgment on the application for compassionate appointment in three months from today. The appeal stands dismissed. No costs."

The question of giving appointment to the son of second wife has already been settled by the Hon'ble Apex Court in affirmative, as above and therefore, impugned order dated 29.09.2009 is quashed and set aside. The respondents are directed to consider the case of the applicant for appointment on compassionate ground under the rules framed for compassionate appointment within a period of three months from the date a certified copy of this order is received by the respondents. The applicant shall be informed about the outcome of this consideration as directed above immediately thereafter. Accordingly, O.A. is allowed. No order as to costs.