Smt. Triveni Devi vs The Union Of India
2021 Latest Caselaw 3119 Patna

             IN THE HIGH COURT OF JUDICATURE AT PATNA
               Civil Writ Jurisdiction Case No.7033 of 2020
   ====================================================

1. Smt. Triveni Devi, Wife of late Dharmanand Jha, Ex- Gateman Under Senior Section Engineer (P. Way), East Central Railway, Raghopur, Resident of Village / Moh- Farbisganj, Ward No. 13, P.O. and P.S.- Farbisganj, District- Araria, Pin Code- 854318 (Bihar).

2. Smt. Ranjan Kumari, Second Wife of Dharmanand Jha, Ex- Gateman Under Senior Section Engineer (P. Way), East Central Railway, Raghopur, Resident of Village/ Mohallah- Farbisganj, Ward No. 13, P.O. and P.S.- Farbisganj, District- Araria (Bihar), Pin Code- 854318.

3. Babu Jha, Son of late Dharmanand Jha, Ex- Gateman Under Senior Section Engineer (P. Way), East Central Railway, Raghopur, Resident of Village / Moh- Farbisganj, Ward No. 13, P.O. and P.S.- Farbisganj, District- Araria (Bihar), Pin Code- 854318.

... ... Petitioners Versus

1. The Union of India through the General Manager, East Central Railway, Hajipur, P.O. - Digghi Kalan, P.S.- Hajipur (Sadar), District- Vaishali, Pin Code- 844101 (Bihar).

2. The General Manager (Personnel), East Central Railway, Hajipur, P.O.- Digghi Kalan, P.S. - Hajipur (Sadar), District- Vaishali, Pin Code- 844101 (Bihar).

3. The Divisional Railway Manager, East Central Railway, Samastipur, P.O. - Samastipur, P.S. - Samastipur, Town and District- Samastipur, Pin Code- 848101 (Bihar).

4. The Senior Divisional Personnel Officer, East Central Railway, Samastipur, P.O.- Samastipur, P.S.- Samastipur, Town and District- Samastipur, Pin Code- 848101 (Bihar).

5. The Senior Divisional Engineer (Coordination), East Central Railway, Samastipur, P.O.- Samastipur, P.S. Samastipur, Town and District- Samastipur, Pin Code- 848101 (Bihar). Patna High Court CWJC No.7033 of 2020 dt.07-07-2021

6. The Senior Divisional Financial Manager, East Central Railway, Samastipur, P.O.- Samastipur, P.S.- Samastipur, Town and District- Samastipur, Pin Code- 848101(Bihar).

... ... Respondents ==================================================== Appearance :

For the Petitioners : Mr. Munna Pd Dixit, Advocate For the Respondents : Mrs. Kalpana, Advocate ==================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN and HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIKASH JAIN)

Date : 07-07-2021

Heard learned counsel for the petitioners and

learned counsel for the respondents through video conference.

Learned counsel for the petitioners hereby undertakes that all

defects pointed out by the stamp reporter shall be removed, and

compliance with the conditions of the notices of this Court with

regard to acceptance of e-filing shall be made, without delay

immediately upon resumption of normal physical functioning of

the Court, and in any event within one month thereof.

2. The following reliefs as formulated by the

petitioners have been claimed in the writ petition.

"A. For issuance of Writ in the nature of Certiorari for quashing/setting aside the Order dated 26.04.2019 passed by the Learned Central Administrative Tribunal, Patna Bench, Patna Patna High Court CWJC No.7033 of 2020 dt.07-07-2021

herein after CAT in Original Application No. 050/00049 of 2018 as contained in Annexure-2 of the writ application whereby and whereunder the prayer for appointment of Petitioner No.3 on compassionate ground being the son of 2nd wife of the deceased employee has been rejected and instant OA has been dismissed illegally, without application of Judicious mind and also contrary to the Full Bench judgment of this Hon'ble Court reported in 2019 (2) PLJR 500 and also by Hon'ble Supreme Court of India reported in AIR 2019 SC 666.

(B). For issuance of Writ in the nature of Certiorari for declaring the RBE No.42/2018 dated 21.03.2018 as contained in Annexure-1 of the writ application as null, void, abnitio wrong and contrary to the Full Bench judgment of this Hon'ble Court reported in 2019 (2) PLJR 500 and also by Hon'ble Supreme Court of India reported in AIR 2019 SC 666.

(C) For issuance of an appropriate writ(s)/ order(s)/ direction(s) in the nature of Mandamus commanding the Respondents to consider and issue offer of appointment letter on compassionate ground in favor of Petitioner No.3 being son of 2nd wife without any further delay in view of orders so passed by Hon'ble Full Bench of this Hon'ble Court reported in 2019 (2) PLJR 500, Hon'ble Supreme Court of India reported in AIR 2019 SC 666 and also by Hon'ble Madras High Court dated 28.02.2017 upheld by Hon'ble Supreme Court of India on 18.09.2017 as Patna High Court CWJC No.7033 of 2020 dt.07-07-2021

contained in Annexure-A/1 and A/2 with Paper Book.

(D) For issuance of an appropriate writ(s)/ order(s)/ direction(s) in the nature of Mandamus commanding the Respondents to grant all consequential benefits in favour of the Petitioners.

(E) Any other appropriate relief(s) for which the Petitioners may be entitled to be granted."

3. The short facts of the case according to the

petitioners herein, who are the first wife, the second wife and the

son of the second wife, respectively, of the deceased late

Dharmanand Jha, are that he was the Ex-Gateman under Senior

Section Engineer (P. Way), East Central Railway, Raghopur and

died in harness on 28.01.2007. A representation was made for

compassionate appointment in favour of petitioner no.3 but no

action was taken by the concerned authorities. Accordingly, the

petitioners filed O.A. No.050/00049/18 (Annexure-2) but the

same has been dismissed by the Tribunal vide its order dated

26.04.2019, inter alia, relying on a decision of the Tribunal

passed in O.A. No.050/00910/2016. Such dismissal has been

made subject matter of challenge in the present writ petition.

4. Learned counsel for the petitioners submits that

the view taken by the learned Tribunal is contrary to the

established law on the subject of compassionate appointment of

the son of the second wife of a deceased employee. He relies on Patna High Court CWJC No.7033 of 2020 dt.07-07-2021

the decision of the Hon'ble Apex Court rendered on 11.12.2018 in

Union of India and Another vs. V.R. Tripathi reported in AIR 2019

S.C. 666 holding as follows -

"18. The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in sub-section (1) of Section 16 in regard to the legitimacy of the child. Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Court in M. Muthuraj v. Deputy General of Police, Tamil Nadu adopting the same position. 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 (2010 Lab IC 1465 (Cal)) in Union of India v. M. Karumbayee. A Special leave petition filed against the judgment of the Division Bench was dismissed Patna High Court CWJC No.7033 of 2020 dt.07-07-2021

by this Court on 18 September 2017."

5. The said decision in V.R. Tripathi's case (supra)

relied upon by a Full Bench of this Court in its decision dated

18.04.2019 in Bihar State Electricity Board & Ors. Vs. Chadra

Shekhar Paswan & Ors., 2019(2) PLJR 500, which after a detailed

consideration of various decisions on the point, disposed of the

writ petition with a direction to the respondents to consider the

claim of the petitioner for appointment on compassionate ground

on merits.

6. Yet again, a Division Bench of this Court in C.W.J.C.

No.12886 of 2018 (Union of India and Another vs. Smt. Asharfi

Devi & Anr.) took a similar view.

7. It is, therefore, submitted that the authorities

have wrongly deprived the petitioner no.3 from being considered

for compassionate appointment. Surprisingly, the Tribunal has

failed to interfere in the matter despite its observation that the

Rule contained in RBE 42/2018 to the extent that it barred the

widows to nominate the children covered under Section 16 of the

Hindu Marriage Act, 1955 for the purposes of compassionate

appointment, "to be prima facie against law as it amounts to

imposing the Department's perceived sense of morality over what

is expressly declared as legal, or legitimate".

8. Learned counsel for the respondents appears and

opposes the petition, submitting that considerable time has Patna High Court CWJC No.7033 of 2020 dt.07-07-2021

elapsed since the death of the employee Dharmanand Jha in the

year 2007. The purpose of compassionate appointment is

primarily to tide over the immediate crisis which befalls the

family upon death of the bread earner. This no longer remains a

consideration after a lapse of more than a decade since death

occurred. It is further stated on instructions that a recent circular

has been issued only in the year 2019 accepting the proposition

that a child of the second widow of a deceased would be eligible

for compassionate appointment. However, such circular would

operate only prospectively to cover cases arising from deaths

occurring after issuance of the circular and would not be

applicable to the case of the petitioners.

9. Having heard the parties and on a consideration

of materials on record, this Court finds merit in the writ petition.

The principle of law has been clearly recognized in V.R. Tripathi's

case (supra) to the effect that on the strength of Section 16 of the

Hindu Marriage Act, 1955, the legal presumption of legitimacy

would not be restricted only with respect to the property of the

deceased. As such, the son of the second widow would also be

eligible for compassionate appointment. This Court has also

reiterated the view in its aforesaid decision of the Full Bench in

Chadra Shekhar Paswan's case (supra) and of the Division Bench

in Asharfi Devi's case (supra). This Court is not inclined to accept

the submission of the respondents that such compassionate Patna High Court CWJC No.7033 of 2020 dt.07-07-2021

appointment could not be made prior to issuance of the recent

circular of 2019. This is evident from the very fact that circulars

of the respondent railway issued prior to 2019 denying the

benefit of compassionate appointment to a son of second widow

have been quashed in the past. In the case of Namita Goldar &

Anr. Vs. Union of India & Anr., 2010 Lab IC 1465 (Cal), the Calcutta

High Court set aside Railway Board's circular dated 02.01.1992 to

the extent it prevented children of the second widow from being

appointed on compassionate basis. This decision was upheld by

the Hon'ble Supreme Court. So also, a Division Bench of the

Madras High Court in Union of India v. M. Karumbayee, 2017 Lab.

IC (NOC) 237 (Mad) has taken a similar view.

10. We have, therefore, no hesitation in setting aside

the impugned order of the Tribunal dated 26.04.2019 passed in

O.A. No. 050/00049/18. The matter is remanded to the General

Manager (Personnel), East Central Railway, Hajipur (respondent

no.2) to consider the case of the petitioner no. 3 on its own merit

in accordance with law for his compassionate appointment. The

Railway Board's circular No. 42/2018 dated 21.03.2018 which

has been impugned herein, is also set aside to the extent that it

prohibits the widows of a deceased from nominating the children

treated as legitimate under Section 16 of the Hindu Marriage Act,

1955 for their appointment on compassionate basis, as contained

in paragraph 5(a) thereof, as being contrary to the law laid down Patna High Court CWJC No.7033 of 2020 dt.07-07-2021

by the Hon'ble Supreme Court in V.R. Tripathi's case (supra).

11. The writ petition stands allowed.

(Vikash Jain, J)

(Anjani Kumar Sharan, J)

pawan/-

AFR/NAFR             A.F.R.
CAV DATE             N/A.
Uploading Date       12.07.2021
Transmission
Date