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2012 DIGILAW 366 (CAL)

UNION OF INDIA v. Meena Oraon

2012-04-27

NISHITA MHATRE, SUBHRO KAMAL MUKHERJEE

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Judgment :- Nishita Mhatre, J. 1. The order impugned in this writ petition has been passed in O.A. No. 165 of 2010 by the Central Administrative Tribunal Calcutta Bench on 16th September 2011. The application filed by the respondents under Section 19 of the Administrative Tribunals Act for compassionate appointment of the respondent No. 2 has been allowed by the Tribunal. Aggrieved by that order the petitioners have approached this Court under Article 226 of the Constitution of India. 2. The brief facts giving rise to the present petition are as follows :- (i) Muskoo Oraon was employed as a Senior Track man. He died - inharness on 12th May 2004. His wife Smt. Mangri Oraon died on 3rd April 1988. However during the subsistence of his first marriage, the deceased employee married respondent No. 1. They had three children that is the petitioner No. 2, who is their son and two daughters. A daughter, who was born from the first marriage of the deceased employee, is married. (ii) After the death of Muskoo Oraon the respondents preferred an application for the appointment of respondent No. 2 in his place on compassionate grounds. The application was rejected by the respondents. The reasons for rejection of the application were that he was the son of the second wife of the deceased employee and that the employee had not obtained permission from the authorities before marrying again while the first marriage was subsisting. The respondents, therefore, challenged the decision of the petitioners before the Administrative Tribunal. The Tribunal held that in view of the decision of this Court in the case of Smt. Namita Goldar & Anr. vs. Union of India & Ors. reported in 2010(1) CLJ (Cal) 464 the respondent No. 2 was entitled to be appointed on compassionate grounds. The circular issued by the Railways dated 2nd January 1992 was quashed by this court. It was therefore held that, the second marriage would not be a bar for the consideration of the claim of respondent No. 2. The Tribunal directed the petitioners to consider the case of respondent No. 2, in accordance with the observations of the Supreme Court in the case of Umesh Chandra Nagpal vs. Union of India & Ors. reported in 1994 (4) SCC 138 , within six months from the date of the impugned order. 3. Mr. The Tribunal directed the petitioners to consider the case of respondent No. 2, in accordance with the observations of the Supreme Court in the case of Umesh Chandra Nagpal vs. Union of India & Ors. reported in 1994 (4) SCC 138 , within six months from the date of the impugned order. 3. Mr. Ashok Chakraborty appearing for the petitioners has submitted before us that the Calcutta Bench of the Central Administrative Tribunal had no territorial jurisdiction to entertain the application filed by the respondents as the deceased employee was working with Northeast Frontier Railway in the Katihar division. The learned counsel submitted that since Katihar does not fall within the jurisdiction of the Calcutta bench the application could not have been entertained by the Tribunal. He further pointed out that the Headquarters of the Northeast Frontier Railway are at Maligoan which is in Assam and therefore, the respondents could not maintain the application before the Calcutta Bench. 4. This submission of the learned counsel in our opinion is untenable. In exercise of its powers conferred under Sections 35 and 36 of the Administrative Tribunals Act 1985, the Central Government has framed the Central Administrative Tribunal (Procedure) Rules, 1987. Rule 6 of these rules stipulates the place of filing of applications before the Tribunal. The application is normally required to be filed before the bench of the Administrative Tribunal within whose territorial jurisdiction the applicant is posted or where the cause of action either wholly or in part has arisen. Under sub-rule 2 of Rule 6, persons who have ceased to be in service by reason of their retirement, dismissal or termination of service have the option to file an application before the bench within whose jurisdiction they ordinarily reside at the time of filing of the application. In our opinion sub-rule 2 of Rule 6 would apply equally to the heirs of a deceased employee claiming family pension or other retiral dues or compassionate appointment. Admittedly, the respondents are residing within the territorial jurisdiction of the Calcutta Bench of the Administrative Tribunal, therefore, they cannot be driven to file an application before the Guwahati Bench of the Administrative Tribunal. Mr. Chakraborty, tried to persuade us to take a different view in the light of the provisions of the Central Administrative Tribunal Rules of Practice, 1993. Admittedly, the respondents are residing within the territorial jurisdiction of the Calcutta Bench of the Administrative Tribunal, therefore, they cannot be driven to file an application before the Guwahati Bench of the Administrative Tribunal. Mr. Chakraborty, tried to persuade us to take a different view in the light of the provisions of the Central Administrative Tribunal Rules of Practice, 1993. He contended that these rules do not have any provision permitting an application to be filed within the territorial jurisdiction of the place of residence of the employee or his heirs. The Rules of Practice of 1993 are framed under Section 22 of the Act as the Tribunal has been empowered to regulate its own procedure for deciding matters filed under the Act. These Rules of Practice are not framed in derogation or in substitution of the Rules of Procedure of 1987. The Rules of Procedure of 1987 framed in exercise of the power vested in the Central Government under Section 35 of the Act will prevail over the Rules of Practice of 1993. The respondents were, therefore, entitled to maintain the application before the Calcutta Bench of the Administrative Tribunal as they ordinarily reside within its territorial jurisdiction. 5. The next submission of Mr. Chakraborty was that in view of the Railway Board’s circular dated 2nd January 1992 and the clarificatory letter issued on 23rd February 1992, the second wife and her children cannot be considered for compassionate appointment unless the administration has permitted the second marriage in special circumstances, taking into account the personal law. This stipulation is irrespective of the fact that the two women concerned and their respective children may share the dues payable on the death of such employee. The learned counsel submitted that the judgement of this court in the case of Smt. Namita Goldar & Anr. vs. Union of India & Ors. (supra) is per incuriam and sub silentio. According to him various aspects have not been taken into account by the division bench while dealing with the issue as to whether the circular of the Railway Board dated 2nd January 1992 is valid. He submitted before us that the division bench has relied on a judgement of the Supreme Court in the case of Rameshari Devi vs. State of Bihar & Ors. He submitted before us that the division bench has relied on a judgement of the Supreme Court in the case of Rameshari Devi vs. State of Bihar & Ors. reported in 2000 (2) SCC 431 which has no application in the present case as that judgement dealt with the rights of illegitimate children under Hindu Law. He urged that circular of the Railway Board issued for regulating compassionate appointments is a special law and Hindu Law is a general law and it cannot override the special law. He pointed out that the circular of the Railway Board had been issued in exercise of its executive power, the board being authorised to do so in view of the provisions of Article 153, 161, 162 and 13 (iii) (a). He then submitted that the circular of 12th December 1990 would have a statutory force of law akin to rules framed under Article 309 and, therefore, all schemes for appointment on compassionate grounds must be held to be framed under Article 309. 6. Mr. Chakraborty has fortified his submissions by relying on the judgement of the Supreme Court in the case of Sant Ram Sharma, vs. State of Rajasthan & Ors. reported in AIR 1967 SC 1910 & in the case of Ramesh Prasad Singh vs. State of Bihar & Ors., reported in AIR 1978 SC 327 . 7. These submissions of Mr. Chakraborty are untenable. The division bench of this court while deciding the case of Smt. Namita Goldar & Anr. vs. Union of India & Ors. (supra) has already held that the circular of the Railway Board issued on 2nd January 1992 is ultra vires and has quashed it to the extent that it prevents the children of the second wife from being considered for appointment on compassionate grounds. Thus that provision on the basis of which the Railways refused appointment to the respondent no. 2 is not in existence. It is a dead letter after February 10, 2010 when the division bench delivered its judgement in Smt. Namita Goldar & Anr. vs. Union of India & Ors. (upra). We cannot, therefore, infuse life into a dead letter. If the Railways were aggrieved by the decision of the Division Bench they ought to have challenged the same before the Supreme Court. vs. Union of India & Ors. (upra). We cannot, therefore, infuse life into a dead letter. If the Railways were aggrieved by the decision of the Division Bench they ought to have challenged the same before the Supreme Court. Not having done so, the Railways cannot reopen the issue before us by submitting that the judgement is per incuriam and sub silentio. Apart from this, the Railways have thought it fit to grant employment in the case of Smt. Namita Goldar & Anr. vs. Union of India & Ors. (supra) on compassionate grounds. However in the case of respondent No. 2 they have decided to challenge the decision of the Tribunal which has merely followed the decision in Smt. Namita Goldar & Anr. vs. Union of India & Ors. (supra). 8. We, therefore, do not think it necessary to consider the submissions of Mr. Chakraborty for the petitioners as the Railway Board’s circular has already been set aside by the Division Bench of this court and the Railways have taken no step to challenge that decision, for reasons best known to them. 9. Accordingly the Writ Petition is dismissed without any order as to costs. 10. Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.