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Allahabad High Court · body

2017 DIGILAW 2627 (ALL)

UNION OF INDIA v. AMIT KASHYAP

2017-11-14

IRSHAD ALI, PANKAJ MITHAL

body2017
JUDGMENT By the Court.—Heard Sri Kaushalesh Pratap Singh alongwith Sudhir Bharti, learned counsel for the petitioners and Sri Ashish Kumar and Shailesh Kumar Shukla, learned counsel appearing for respondent Nos. 1 and 2. 2. The petitioners have preferred this petition against the judgement and order dated 9.10.2014 and order dated 16.12.2014 rejecting the review application of the petitioners passed by Central Administrative Tribunal, Allahabad. 3. The Tribunal by the aforesaid order has allowed the original application of respondent Nos. 1 and 2 and after setting aside the order refusing compassionate appointment to respondent No. 1 has directed the authorities to consider the claim of the respondent No. 1 for compassionate appointment, if he is otherwise eligible for the same within a time bound period. 4. The facts of the case reveals that one Ram Bahadur, who was working on the post of Fitter-II in the Carriage and Wagon Department, Northern Railway, Moradabad had died on 25.10.1992. He had two wives. His first wife Kamla Devi died on 10.12.1990. He was survived by his second wife Smt. Vimla Devi, four sons and two daughters. On his death, Smt. Vimla Devi applied for compassionate appointment. Her application was rejected. On one point of time she even moved an application for giving compassionate appointment to one of the sons Shrawan Kumar. Lastly she moved application for compassionate to her another son respondent No. 1 Amit Kashyap. The respondent No. 1 is said to have been filed application on 25.5.2011 for compassionate appointment. 5. His claim has been rejected in view of circular of Railway Board dated 2.1.1992 which provides that second wife and children born through her would not be permitted to claim compassionate appointment unless the second marriage is after permission from railway authorities. 6. 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, we have no hesitation in accepting that the second marriage of the deceased employee was upon obtaining specific consent from the first wife. 7. 7. The aforesaid circular of the railway board dated 2.1.1992 has been declared to be ultra vires and stand quashed by judgement and order of Calcutta High Court passed in the case of Smt. Namita Goldar and another v. Union of India and others, 2010 LBA IC 1465. The relevant paragraphs are quoted herein below : “(8) 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. (9) 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”. 8. It has been followed by the opinion expressed by Madras High Court in the case of Union of India and others v. Smt. M. Karumbayee and another, dated 28.2.2017 in Writ Petition No. 36981 of 2015. 9. The judgement and order dated 28.2.2017 remained undisturbed by the Supreme Court vide order dated 18.9.2017 passed in S.L.P. Diary No. 27352 of 2017 which is quoted herein below : “Heard. Delay condoned. We do not see any ground to interfere with the impugned order. The special leave petition is accordingly dismissed. Pending applications, if any, shall also stand disposed of.” 10. In view of the aforesaid the Railway Board circular dated 2.1.1992 became redundant and of no use. Delay condoned. We do not see any ground to interfere with the impugned order. The special leave petition is accordingly dismissed. Pending applications, if any, shall also stand disposed of.” 10. In view of the aforesaid the Railway Board circular dated 2.1.1992 became redundant and of no use. Accordingly, the tribunal on consideration of the entire facts and the case law and subject came to the conclusion that even though the second marriage of the deceased Ram Bahadur may be illegal and void but children born from the said lady would be legitimate would be entitle of benefit as the children of the first wife. 11. In view of the above, the respondent may consider that whether the hardship which existed at the time of death of father of the respondent No. 1 still exists and then pass appropriate order on consideration of claim of respondent No. 1 in accordance with law. 12. In the above facts and circumstances, we do not find any error or illegality in the order of the Tribunal so as to call upon us interfere with the same. The submission of Sri K.P. Singh, learned counsel for the petitioner that the claim of the respondent No. 1 was highly belated and that in view of the decision in Umesh Kumar Nagpal v. State of Haryana and others, JT 1994 (3) SC 525, the respondent No. 1 is not entitle to any appointment on compassionate basis which has been dealt with by the Tribunal. 13. This aspect of the matter can be considered if necessary by the appointing authority while dealing with the application of the respondent No. 1 which has been directed to be reconsidered in accordance with law. 14. Accordingly the order rejecting the application of the respondent No. 1 for compassionate appointment on the basis of the railway board circular dated 2.1.1992 is set aside and direction is issued to consider his claim afresh if he is otherwise found eligible. 15. The petition as such lacks merit and is dismissed.