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2024 DIGILAW 460 (AP)

E. Sandhya v. Union of India

2024-04-16

VENKATA JYOTHIRMAI PRATAPA

body2024
ORDER : Venkata Jyothirmai Pratapa, J. 1. This Writ Petition is filed under Article 226 of the Constitution of India seeking Certiorari, for the following relief: ".... Calling for the records and quash the impugned proceedings issued vide proceedings No.B/P.Com/ 563/ III/98/2009 dt.14.11.2018 by the 3rd respondent herein as highly illegal, arbitrary, unconstitutional, malafide and consequently, to quash the same and direct the respondents to forthwith provide compassionate appointment to the 2nd petitioner herein in any suitable post as per the 2nd petitioner's qualifications and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case." 2. The facts of the case, in brief, are as follows: a. The petitioners 1 and 2 are the mother and son respectively. One E.Lakshminarayana[hereinafter referred to as 'the deceased'] (who is the husband of the petitioner No. 1 while alive, worked as Mechanical (CMW) Fitter, in respondent-Railways from 10.10.1972 to 08.01.2006. He died while on duty on 08.01.2006. b. During the life time of the said E.Lakshminarayana, with the consent of his first wife, namely, E.Komala (since she was issueless), he married the petitioner No. 1 on 27.11.1986 and they were blessed with a son and daughter, namely, E.Sai Kumar (Petitioner No. 2) and Divya Kanti. After the death of deceased, Petitioner No. 1 received family pension through the public sector bank as per the proceedings dated 06.11.2007. c. As per the Award of the Lok Adalat, Warangal, dated 22.03.2007, the two wives of the deceased agreed to share the death benefits and pension of the deceased equally and that the son of the petitioner No. 1, Eda Sai Kumar is entitled for the job of his father on compassionate grounds. d. The petitioner No. 1 made an application dated 09.02.2009 requesting compassionate appointment to her son/petitioner No. 2, who was studying Class-X and that the petitioner No. 1 received letter dated 18.05.2019 from the respondent authorities to submit all documents. d. The petitioner No. 1 made an application dated 09.02.2009 requesting compassionate appointment to her son/petitioner No. 2, who was studying Class-X and that the petitioner No. 1 received letter dated 18.05.2019 from the respondent authorities to submit all documents. e. The Respondent No. 3, vide proceedings No.B/P.Com.563/ 98/2009, dated 17.07.2009 informed the Petitioner No. 1 that the request for appointment on compassionate grounds was rejected on the ground that the ex-employee married the Petitioner No. 1 without taking permission from the administration entered into second marriage without taking legal separation, and as per the rules in force, appointment on compassionate grounds to the second widow and her children is not permissible. f. The Petitioner No. 1 again made an application dated 07.04.2015 and the same is also rejected by the respondent No. 3, vide proceedings dated 23.04.2015. The first wife of the deceased also addressed a letter to the Respondent No. 2 stating that after obtaining the oral consent from her, the deceased married the petitioner No. 1 and she had no objection for providing job to Petitioner No. 2 on compassionate grounds. g. The Petitioner made a representation dated 05.01.2018 to Respondent No. 2 requesting to provide employment on compassionate grounds to prevent starvation of the entire family but no orders have been passed till date. h. The Respondent No. 3 vide the proceedings dated 14.11.2018 rejected the request of the petitioner Nos. 1 and 2 for the reasons as already stated above, which is illegal, arbitrary and passed unilaterally, mechanically and without any application of mind in a routine manner. i. Hence, W.P. 3. The key averments made in the counter affidavit are: a. Jurisdiction of the subject matter falls under the Central Administration Tribunal, Hyderabad Bench as per Section 14 of the Administrative Tribunal's Act and without availing the said remedy, the petitioners straight away filed the writ petition and even then, the issue is not fallen for consideration by the General Manager, Central Railways and therefore, the writ petition is not maintainable either on law or on facts. b. The Railway rules and regulations do not permit the respondent authorities to appoint the heirs of the second wife of the deceased on compassionate grounds. b. The Railway rules and regulations do not permit the respondent authorities to appoint the heirs of the second wife of the deceased on compassionate grounds. c. As per the observations of the Hon'ble High Court of Jharkhand (Ranchi) in W.P. (S) No. 16 of 2014, compassionate appointment is a matter of policy and the employer cannot be compelled to provide compassionate appointment contrary to its policy/scheme d. Case of the petitioners was considered in the light of the Instructions laid down by Railway Board Circular under SC 5/92 and the rules do not permit authorities to provide compassionate appointment to petitioners. e. The deceased did not obtain any permission for performing second marriage from the railway authorities and even according to the Award passed by the Lok Adalat, it is evident that the deceased did not obtain permission for the same. As per circular under RBE No. 42/2018, in such circumstances, the requests cannot be considered. f. The deceased expired at the age of 53 years and the record would show that he had shown the names of the Petitioners herein in the family declaration only as his wife and son and obtained railway passes during his life time, but the fact about the consent of the first wife E. Komala is not known the administration and no permission was taken by the deceased and no material is filed thereof. For all these reasons, the writ petition is liable to be dismissed. 4. Heard Sri S.Madhava Rao, leaned counsel for the Petitioner; Sri M.Srinivas, learned counsel for the Respondent No. 1 and Smt. N.Sasikala, learned Standing Counsel for the Respondent Nos. 2 and 3- Railways. Perused the material on record. 5. Learned counsel for the Petitioner in elaboration to what was stated in the Writ Affidavit, would submit that the husband of petitioner No. 1 worked as Fitter in Railways and died during his service on 08.01.2006. It is stated that after the death of the deceased, they have approached the Legal Services Authority and the dispute is settled vide Award dated 22.03.2007 and the two wives of the petitioner agreed to share the death benefits and the pension of the deceased equally. It is stated that after the death of the deceased, they have approached the Legal Services Authority and the dispute is settled vide Award dated 22.03.2007 and the two wives of the petitioner agreed to share the death benefits and the pension of the deceased equally. It is also stated that the Petitioner No. 2, who is son of the deceased is entitled for employment on compassionate grounds and that the petitioners submitted application along with relevant documents and it was rejected by the respondent No. 3 on the ground that without taking permission and divorce, the deceased contacted second marriage with the petitioner No. 1. It is also pointed out that even thereafter, the first wife of the petitioner addressed a letter stating that with her consent only her husband married the Petitioner No. 1 and she has no objection for giving the employment to the petitioner No. 2. It is stated that as there is no alternative remedy, the petitioners approached this Court seeking indulgence of this Court under plenary jurisdiction. 6. Learned Standing counsel appearing for the Railways, would submit that Railway is not a party to the Lok Adalat Award. It is also stated that as per Section 14 of the Administrative Tribunal's Act, the petitioner can prefer appeal against the rejection order. It is also contended that compassionate appointment is a matter of policy and employer cannot be compelled to provide such appointment contrary to the rules and that the circular issued by the Railway Board does not permit the authorities to provide such appointment. It is also stated that the declaration of the deceased shows the family declaration that the Petitioners are wife and son of the deceased and obtained railway passes during his life-time. Learned counsel would submit that under these circumstances the respondents rightly rejected the plea of the petitioners. Point for Determination 7. Now the points that would emerge for determination are: • Whether the Petitioner No. 2 can be deprived of his employment on compassionate grounds since he is the son of the second wife of the deceased ? • Whether the Petitioners are entitled for any relief? Consideration by the Court 8. There is no dispute about the fact one late E.Lakshminarayana is the biological father of the Petitioner No. 2 and that he worked as Fitter in Railway and died during his service. • Whether the Petitioners are entitled for any relief? Consideration by the Court 8. There is no dispute about the fact one late E.Lakshminarayana is the biological father of the Petitioner No. 2 and that he worked as Fitter in Railway and died during his service. It is also not in dispute that the deceased contracted second marriage, though with the consent of his first wife, without divorce, which per se is not a valid marriage in the eye of law. As a matter of policy and circulars, the Railways rejected the plea of the second petitioner for his appointment on compassionate grounds. Now there is no dispute between the first wife of the deceased and the Petitioner No. 2. 9. In fact, the first wife of the deceased also gave her no objection and consent for giving appointment to the second petitioner. Petitioner No. 2 is the biological son to the deceased. It is also a fact that the matter is settled before the Lok Adalat Warangal, vide Award dated 22.03.2007 between the family. It is relevant to extract the Lok Adalat Award and it is thus: BEFORE THE LOK ADALAT AT WARANGAL (Civil) On this 22nd March day of two thousand and seven ELSA No. 225 of 07S./A.S./O.P./S.C.S./RCC/CMA/ of 199 On the file of the DLSA, Warangal. Present: 1. Sri.B. Suresh, Counselling Officer, Dist. Legal Services Authority, Warangal Serving Judicial Officer 2. Sri.K. Rajaiah Goud, Govt. Pleader, Member, D.L.S.A. Warangal. Advocate 3. Smt. G. Rama Devi, Member, D.L.SA. Warangal, Social Worker Between: 1. Smt. Eada Komala, W/o. Late Laxminarayana. Age. 501 Mars, R/o.(First wife) H. No. 4-6-226, Kumarpalli, Hanamkonda, Warangal 2. Smt. Eada Sandhya, (Second wife), W/o.Late Laxminarayana, Age 42 Years R/.o. Ward No. 9, Cheerala Church Compound, Harrispet, Cheezala, Rrahawak Prakasham District, Andhra Pradesh Plaintiff/Petitioner AWARD U/Sec. 21 OF THE LEGAL SERVICES AUTHORTIES ACT 1987. 1. The Plaintiff/Petitioners / Appellants / Decree Holder through their Advocate Sri Ch. Rajendra Prasad, Respondents/J.Dr. represented by Sri....... and the Defendants Advocate are present. 2. The Suit/O.P./Appeal has been filed seeking relief of passing award terms of settlement arrived at by both parties. The value of the suit Rs. Plaint / Appeal Presented on 22.3.2007 Court Fee Paid Rs 3. After negotiations and conciliation between the parties, the claims of the parties settled as follows and a decree in the following terms in passed. TERMS OF COMPROMISE 1. The value of the suit Rs. Plaint / Appeal Presented on 22.3.2007 Court Fee Paid Rs 3. After negotiations and conciliation between the parties, the claims of the parties settled as follows and a decree in the following terms in passed. TERMS OF COMPROMISE 1. Both parties agreed to share the death benefits and pension of their husband Late Sri Eda Laxminarayana equally. 2. Both parties further agreed that, the son of second Petitioner herein, namely, Eda Sai Kumar is entitled for the job of his father on compassionate grounds. The matter is settled accordingly as per the terms of compromise entered into between the parties. Petition is closed. **** (Given under our hands and the seal of Lok Adalat on this the 22nd day of March, 2007 at Warangal. Member, Lok Adalath, Warangal." 10. By virtue of the Lok Adalat award, Petitioner No. 2 being son, is entitled to get appointment on compassionate grounds. It is a settled principle of law that compassionate employment is not a source of recruitment and is also not a vested right. The financial condition of the deceased family, at the time of death, should be the primary consideration in determining a claim for compassionate appointment. 11. In State of West Bengal v. Debebrata Tiwari and others 2023 LiveLaw (SC) 175 while hearing an Appeal from an order that directed consideration of claims of compassionate appointment, the Hon'ble Supreme Court outlined the rationale behind the policy as follows: "7. The majesty of death is that it is a great leveller for, it makes no distinction between the young and the old or the rich and the poor. Death being as a consequence of birth at some point of time is inevitable for every being. Thus, while death is certain, its timing is uncertain. Further, a deceased employee does not always leave behind valuable assets; he may at times leave behind poverty to be faced by the immediate members of his family. Therefore, what should be done to ensure that death of an individual does not mean economic death for his family? The State's obligation in this regard, confined to its employees who die in harness, has given rise to schemes and rules providing for compassionate appointment of an eligible member of his family as an instance of providing immediate succour to such a family. The State's obligation in this regard, confined to its employees who die in harness, has given rise to schemes and rules providing for compassionate appointment of an eligible member of his family as an instance of providing immediate succour to such a family. Support for such a provision has been derived from the provisions of Part IV of the Constitution of India, i.e., Article 39 of the Directive Principles of State Policy." (Emphasis supplied) 12. Compassionate appointments must adhere to the stipulations made in the policy. In other words, if a department/authority is shorn of a policy providing compassionate appointment, no such appointment could be made and in cases, where such rules exist, compliance is necessary. At this juncture, it is essential to refer to the decision of the Hon'ble Apex Court in Union of India v. V.R. Tripathi, 2018:INSC:1189 : (2019) 14 SCC 646 which considered the issue of legitimacy of child born from a second marriage and observed thus; "14. The real issue in the present case, however, is whether the condition which has been imposed by the circular of the Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of a deceased employee (except where the marriage was permitted by the administration taking into account personal law, etc.) accords with basic notions of fairness and equal treatment, so as to be consistent with Article 14 of the Constitution.... 16. The issue essentially is whether it is open to an employer, who is amenable to Part III of the Constitution to deny the benefit of compassionate appointment which is available to other legitimate children. Undoubtedly, while designing a policy of compassionate appointment, the State can prescribe the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration. The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires. 17. Even if the narrow classification test is adopted, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved. The learned Additional Solicitor General has urged that it is open to the State, as part of its policy of discouraging bigamy to restrict the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination. 18.......The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries - legitimate children." (emphasis supplied) 13. Further, a three-Judge Bench of the Hon'ble Supreme Court in Mukesh Kumar and another v. Union of India and others, (2022) 2 JT 346 had settled the legal position on the issue as to whether the condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is legally sustainable or not. The Court held that the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution and observed as follows; "9. While compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. In this regard, 'descent' must be understood to encompass the familial origins of a person. Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant's legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant. Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2)." (emphasis supplied) 14. Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2)." (emphasis supplied) 14. Admittedly, the deceased died in the year 2006. The counter itself discloses that the deceased has shown the Petitioner Nos., 1 and 2 as his wife and son and availed railway pass during his service. In that view of the matter, in view of the legal position referred supra in V.K. Tripathi and Mukesh Kumar (referred supra), the policy of compassionate appointment cannot fall foul to the Article 14 of the Constitution, and thus this Court is of the view that the Petitioner No. 2 cannot be denied consideration solely because he is the son of the Petitioner No. 1, who is the second wife of the deceased. Therefore, it is essential to direct the Respondent authorities to consider the application of the Petitioner No. 2, for compassionate appointment, subject to compliance of the other regulations. Accordingly Point Answered. 15. Accordingly, the Writ Petition is allowed. The respondents are directed to scrutinize the application of Petitioner No. 2 on compassionate appointment, in accordance with law, within a period of four weeks from the date of receipt of the copy of the order. No order as to costs. Pending Miscellaneous petitions, if any, shall also stand closed.