Smti. Manipriya Deb Barma vs Union Of India
2021 Latest Caselaw 980 Tri

                                      Page - 1 of 24


                               HIGH COURT OF TRIPURA
                                     AGARTALA

                              W.P(C)(CAT) No. 01 of 2019

   Smti. Manipriya Deb Barma,
   Wife of Late Nagendra Deb Barma, Resident of Nagicherra,
   Ashrampara, P.O Nagicherra, P.S. Srinagar, District-West Tripura,
   Agartala, Tripura. Pin-799004

                                                                ----- Petitioner(s)
                                       Versus

1. Union of India,
   To be represented by the General Manager, North East Frontier
   Railway, Maligoan, District: Kamrup, Guwahati-781011, Assam.
2. General Manager (Construction),
   North East Frontier Railway, Maligoan, District: Kamrup, Guwahati-
   781011, Assam.
3. The Senior Personnel Officer (Construction),
   North East Frontier Railway, Maligoan, District: Kamrup, Guwahati-
   781011, Assam.
4. Miss. Rinku Deb Barma,
   Daughter of Late Nagendra Deb Barma, Resident of and Care of
   Kamakhya Das, Rehabari, P.O.-Rehabari, Bilpar, Guwahati, District:
   Kamrup (Metro), Assam-781008.

                                                           -----Respondent(s)

   For Petitioner(s)                   :    N. Das, Advocate.

   For Respondent(s)                   :    Mr. A. De, Advocate.
                                            Mr. B. Banerjee, Advocate

   Date of Hearing                     :    13th July, 2021.
   Date of Pronouncement               :    28th September, 2021.

   Whether fit for reporting           :    NO




 W.P(C)(CAT) No. 01 of 2019
                                      Page - 2 of 24


                                   B_E_F_O_R_E_
             HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
                HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                                 JUDGMENT & ORDER


[Per S.G. Chattopadhyay], J

By means of filing this writ petition, petitioner Smti.

Manipriya Deb Barma has challenged the order dated 29.01.2019

passed by the Central Administrative Tribunal, Guwahati Bench

(hereinafter referred to as ‗the tribunal') in OA No. 040/00045 of 2016

whereby the tribunal held that Ms. Rinku Deb Barma (respondent No.4),

daughter of late Nagendra Deb Barma through his first wife Smt.

Swapna Deb Barma be given compassionate appointment by the official

respondents on account of the death of her father Nagendra Deb Barma

in harness and directed the said respondents to carry out the order

within a period of three months.

[2] The case of the petitioner which has been projected in her

writ petition is as under:

Her husband Nagendra Deb Barma was a peon in the

office of the Deputy Engineer, NF Railway at Agartala who died in

harness on 17.05.2014 (death certificate is Annexure-3 to the writ

petition) survived by his petitioner wife and only daughter Payel Deb

Barma. During his lifetime, said Nagendra Deb Barma executed a Will

W.P(C)(CAT) No. 01 of 2019 Page - 3 of 24

on 09.10.2012 (Annexure-5) which was registered in the office of the

Sub Registrar at Agartala on the same day. By the said Will, Nagendra

Deb Barma (now deceased) declared that in the event of his death, his

wife Smt. Manipriya Deb Barma (petitioner) would be given

compassionate appointment and she would also be entitled to family

pension and all other pensionary benefits.

(i) Pursuant to the said Will of her late husband, petitioner

Manipriya Deb Barma claimed compassionate appointment and

pensionary benefits including family pension after the death of her

husband by making a communication dated 12.06.2014 to official

respondents (Annexure-6). Since there was no response from the

official respondents, she reiterated her claim for compassionate

appointment and pensionary benefits by a subsequent communication

dated 30.01.2015 (Annexure-7).

(ii) The official respondents replied to her communications by

their letter dated 20.02.2015 (Annexure-8) informing the petitioner

that Smt. Swapna Deb Barma already claimed compassionate

appointment and pensionary benefits after the death of Nagendra Deb

Barma claiming to be his wife. The petitioner was asked by the official

respondents to inform whether she filed any Probate case for probate of

the Will allegedly executed by her husband and she was also asked to

communicate her consent/no consent in case she was offered

W.P(C)(CAT) No. 01 of 2019 Page - 4 of 24

compassionate appointment and said Smt. Swapna Deb Barma was

considered for family pension and other pensionary benefits.

(iii) In her reply dated 04.06.2015 (Annexure-10),

petitioner asserted that the claim of Smt. Swapna Deb Barma was false.

Her husband never married Smt. Swapna Deb Barma. Therefore, she

was neither entitled to compassionate appointment nor to any

pensionary benefit. She reiterated her claim for compassionate

appointment and release of pensionary benefits and all other

outstanding dues of her husband in favour of her and their only

daughter Payel Deb Barma. She also informed the official respondents

that she would file a Probate case in the competent court at Agartala.

(iv) Subsequent thereto, the official respondents wrote a

letter dated 19.06.2015 (Annexure-12) to the petitioner informing her

that her claim for compassionate appointment would be considered as

per extant rules and family pension would be considered in favour of

Smt. Swapna Deb Bbarma, first wife of late Nagendra Deb Barma. She

was asked to communicate her comments on the said proposal.

(v) Similarly, by another letter dated 19.06.2015

(Annexure-13) the official respondents informed Smt. Swapna Deb

Barma that her claim for family pension would be considered as per

Pension Rules. With regard to her claim for compassionate appointment,

the official respondents informed her that Smt. Manipriya Deb Barma

W.P(C)(CAT) No. 01 of 2019 Page - 5 of 24

(petitioner) would be considered for compassionate appointment. The

official respondents also sought for her consent/comments on the

proposal.

(vi) In reply, Manipriya Deb Barma, petitioner vide her letter

dated 16.07.2015 (Annexure-14) accepted the proposal of her

compassionate appointment and with regard to release of pensionary

benefits she proposed that the same might be withheld until disposal of

the Probate proceedings initiated by her. In the alternative, she

proposed that pensionary benefits may be released in accordance with

law subject to outcome of the Probate case.

(vii) Challenging the action of the official respondents, Ms.

Rinku Debb Barma (respondent No.4) claiming to be the daughter of

said Nagendra Deb Barma and Swapna Deb Barma filed a petition in the

Central Administrative Tribunal, Guwahati Bench which was registered

in the Tribunal as OA No. 00045 of 2016. In her petition, she claimed

that marriage between her late father Nagendra Deb Barma and mother

Swapna Deb Barma was solemnized on 13.10.1977 and she and her

sister Sampa Deb Barma (the eldest) and brother Mithu Deb Barma

were born within their wedlock. Owing to marital discord, her father left

her mother Swapna Deb Barma. Due to separation, her mother

obtained maintenance allowance from the Family Court, Kamrup in

Assam by an order dated 05.02.1999 in case No. FC (Crl.) 163 of 1998.

W.P(C)(CAT) No. 01 of 2019 Page - 6 of 24

In the tribunal, petitioner claimed compassionate appointment on the

ground of death of her father in harness.

(viii) The tribunal heard and decided the matter by an order

dated 03.03.2016 holding as under:

―19. In our view the responsibility to be fixed upon the concerned authority so as to ascertain legal entity of the applicant for being considered for compassionate appointment by taking note of declaration form of Service Book of the deceased employee as well as the relevant documents submitted by the claimants on the basis of the appropriate justification. Ordered accordingly.

20. In case, if it is arrived at that the applicant's mother is the legally married first widow and not divorced till the death of deceased father, the case of the applicant shall be considered for appointment on compassionate ground as per law. Ordered accordingly. The exercise as directed shall be carried out by the respondents within a period of three months from the date of receipt of the order.

With the above observations and directions the O.A. is accordingly disposed of. No order as to costs.‖

(ix) Present petitioner Manipriya Deb Barma challenged the

said order dated 03.03.2016 of the tribunal by filing W.P(C)(CAT) 01 of

2016 on the ground that the tribunal decided the matter without serving

any notice on her. The said writ petition was decided by this court by an

order dated 09.08.2017 (Annexure-18) observing as under:

―On perusing the record, we find that no notices were served upon or received by the petitioners before disposing of the case by the Central Administrative Tribunal, Guwahati Bench. This amounts to violation of

W.P(C)(CAT) No. 01 of 2019 Page - 7 of 24

principle of natural justice, which vitiates the decision making process of the Central Administrative Tribunal.

Without going into the merit of the case, we set aside the impugned order dated 03.03.2016. The case is, therefore, remanded to the learned Members, Central Administrative Tribunal, Guwahati Bench for fresh decision after hearing all interested parties in accordance with law.

As the case has been long pending, an attempt will be made by the Tribunal to dispose of the application within a period of 3(three) months.

Both the parties will appear before the Tribunal on 05.09.2017.‖

(x) Pursuant to the said order of this court, the matter was

heard afresh by the tribunal. Written arguments were filed by the

parties. Their counsel were also heard. Finally, the tribunal decided the

matter by an order dated 29.01.2019 holding that Ms. Rinku Deb Barma

(respondent No.4 herein), 2nd daughter of late Nagendra Deb Barma

through his first wife Smt. Swapna Deb Barma was entitled to be

considered for compassionate appointment. The tribunal, therefore,

directed the official respondents to consider the claim of Ms. Rinku Deb

Barma for compassionate appointment and complete the process within

a period of three months from the date of receipt of the order. Relevant

extract of the impugned order passed by the tribunal is as under:

―11. This being the legal position and in the absence of affirmative records to the contrary including specific permission accorded to the deceased Govt. employee for 2nd marriage under Tribal Customary laws and traditions, Smt. Manipriya Deb Barma, private respondent No.4 in the instant case, cannot claim to be the rightful legal

W.P(C)(CAT) No. 01 of 2019 Page - 8 of 24

widow of the deceased Govt. employee of Late Nagendra Deb Barma. However, children born out of the 2nd marriage can be treated as legitimate children of Late Nagendra Deb Barma.

12. Considering the above facts and also the legal position as cited above, it is felt that Ms. Rinku Deb Barma, 2nd daughter of the 1st marriage (their 1st daughter being already married) is entitled to be considered for compassionate appointment by the respondent authorities. Accordingly, we hereby direct the respondent authorities to consider the claim of Ms. Rinku Deb Barma for offer of appointment on compassionate ground. The entire exercise may be completed within a period of three months from the date of receipt of this order.‖

(xi) In this factual background, petitioner Smt. Manipriya Deb

Barma, aggrieved by and dissatisfied with the impugned order of the

tribunal has challenged the said order claiming the following reliefs:

a) Admit this petition.

b) Issue notice to the respondents.

c) Call for the relevant records of OA No. 040/00045 of 2016

from the Central Administrative Tribunal, Guwahati Bench.

d) To hear the parties.

e) To issue writ of certiorari to quash/set aside the

impugned judgment and order dated 29.01.2019 of the tribunal.

f) To issue writ in the nature of mandamus directing

respondents 1 to 3 for giving compassionate appointment to the

W.P(C)(CAT) No. 01 of 2019 Page - 9 of 24

petitioner under die in harness scheme in terms of their decision vide

communication dated 19.06.2015 (Annexure-12) and release

outstanding dues of late Nagendra Deb Barma.

And, to direct respondents 1 to 3 for releasing other

benefits in favour of Payel Deb Barma, daughter of the deceased and to

make a compensation of Rs.50,00,000/- to the petitioner for her

husband's marrying her during the lifetime of alleged first wife and

damaging her life by such conduct.

And, stay the implementation of the impugned order of

the tribunal during the pendency of the writ petition.

And, such other order as the court may deem fit in the

circumstances of the case.

[3] This court by an order dated 07.11.2019 passed in this

writ petition directed the parties to maintain status quo. No separate

order was passed in I.A 01 of 2019 which was filed by the petitioner for

staying the operation of the impugned order of the tribunal.

[4] The three official respondents filed a counter affidavit

together. They asserted in their CA that Swapna Deb Barma was the

first wife of Late Nagendra Deb Barma and though they were living

separately, there was no judicial separation or divorce between them.

W.P(C)(CAT) No. 01 of 2019 Page - 10 of 24

Respondent No.4 Rinku Deb Barma is their daughter. The said official

respondents further asserted that since Late Nagendra Deb Barma

married petitioner Manipriya Deb Barma without official permission,

their marriage could not be recognized for any official purpose. In

paragraph 12 of the CA, the respondents asserted as under:

―12. That, in regards to the paragraph no. 12 of the petition filed by the petitioner, the answering respondents most humbly submits that as per decision of the Railway Board dated 02/01/1992, the second wife and her children are not eligible for compensatory ground for appointment and as per case no. OA 45 of 2016, the Hon'ble Administrative Tribunal, Guwahati by an order dated 29/01/2019 directed the respondent authority to consider the claim of Rinku Debbarma for offer of appointment on compensatory grounds and also directed the entire exercise may be completed within a period of 3 months from the date of receipt of this order.‖

The official respondents also averted that compassionate

appointment of Smt. Rinku Deb Barma (respondent No.4) was under

process and nomination submitted by Late Nagendra Deb Barma in

favour of his petitioner wife Manipriya Deb Barma was not acceptable

under the Railway Rules since said Nagendra Deb Barma married

petitioner Manipriya Deb Barma during the lifetime of his first wife Smt.

Swapna Deb Barma without permission of the authority.

[5] In her counter affidavit filed by Ms. Rinku Deb Barma

(respondent No.4), it has been asserted by the respondent that since

her late father Nagendra Deb Barma married her mother Smt. Swapna

W.P(C)(CAT) No. 01 of 2019 Page - 11 of 24

Deb Barma on 13.10.1977 in accordance with rites and customs of

Hindu marriage, second marriage of her father with petitioner Manipriya

Deb Barma during the lifetime of her mother was void. She further

stated that she, her elder sister Sampa and brother Mithu were born

within the wedlock of their parents. The respondent has further averted

that since her father deserted her mother, she obtained maintenance

allowance from Kamrup Family Court, the amount of which was later

enhanced to Rs.2,000/- by the court. She has also asserted that

petitioner Manipriya Deb Barma obtained survival certificate

fraudulently suppressing the name of her and her mother, brother and

sister. She claimed that in terms of Railway Board's circular No. RBE

01/92 (Annexure R/2) petitioner Manipriya Deb Barma or the

daughter born to her was not entitled to compassionate appointment

since her late father married said Smt. Manipriya Deb Barma during the

lifetime of her mother without permission of the Railway department

where her father was an employee. She further asserted that under

Rule 21(2) of the Railway Services (Conduct) Rules, 1966, 2nd marriage

by a railway employee during lifetime of his first wife is prohibited. She

claimed that the impugned order of the tribunal directing the official

respondents was founded on law and therefore, the impugned order of

the tribunal does not call for any interference.

[6] In her rejoinder, petitioner Manipriya Deb Barma claimed

that there is no proof of marriage of her late husband with Smt. Swapna

W.P(C)(CAT) No. 01 of 2019 Page - 12 of 24

Deb Barma and moreover 2nd marriage among tribals is not legally

prohibited because their customary law support such marriage and

Hindu Marriage Act does not apply to them in view of the operation of

Sub section (2) of Section 2 of the said act. She further claimed that

Railway Board's circular relied on by respondent No.4 is not applicable

in this case. She has further asserted that in case she is not found

eligible for compassionate appointment, the official respondents may

give such appointment to her eligible daughter Ms. Payel Deb Barma.

By annexing a copy of the order dated 04.03.2020 passed by the

learned Single Judge of this court in W.P (C) No. 189 of 2020

(Annexure-30), petitioner Manipriya Deb Barma in her rejoinder has

further asserted that she filed said W.P(C) No. 189 of 2020 challenging

the caste status and nationality of Ms. Rinku Deb Barma (respondent

No.4). It has been averted that pending enquiry of her caste status and

nationality, said Ms. Rinku Deb Barma cannot be considered for

compassionate appointment by the official respondents.

[7] Heard Mr. N. Das, learned counsel appearing for the

petitioner and Mr. A. De, learned advocate appearing for the official

respondents. Also heard Mr. B. Banerjee, learned counsel appearing for

respondent No.4.

[8] The bone of contention of Mr. Das, counsel appearing for

the petitioner is that the official respondents after examining the factual

W.P(C)(CAT) No. 01 of 2019 Page - 13 of 24

context and the law involved in the case agreed to provide

compassionate appointment to petitioner Manipriya Deb Barma and

communicated their offer of compassionate appointment to the

petitioner vide their communication dated 20.02.2015 (Annexure-8)

which was reiterated in their later communication dated 19.06.2015

(Annexure-12) addressed to the petitioner. The petitioner also

conveyed her acceptance of the said offer of the official respondents by

making a communication dated 16.07.2015 (Annexure-14). Counsel

argued that the tribunal allowed the petition of respondent No.4 by the

impugned judgment by directing the official respondents to provide

compassionate appointment to the said respondent without considering

these facts for which tribunal's order is liable to be set aside. Counsel

contends that since their customary law support 2nd marriage during the

lifetime of the first wife and Hindu Marriage Act does not apply to their

case, claim of the petitioner for compassionate appointment cannot be

discarded on the ground that she was married by her late husband

during the lifetime of his first wife particularly when she was also

otherwise eligible for such appointment. Counsel submits that tribunal

did not consider the fact that even if the petitioner could not be

considered for compassionate appointment for any reason, her daughter

Payel Deb Barma should not have been denied such appointment

because as a daughter of late Nagendra Deb Barma she would have

enjoyed equal status with the other children of late Nagendra Deb

W.P(C)(CAT) No. 01 of 2019 Page - 14 of 24

Barma in respect of his estate. Counsel submits that petitioner also

filed W.P (C) No. 189 of 2020 challenging the caste status and

nationality of respondent No.4 which was decided by the learned Single

Judge of this court on 04.03.2020. Court did not make any observation

on the issue of nationality since representation of the petitioner was

pending before the SDM. With regard to the challenge to the caste

status, court observed that insofar as cancellation of caste certificate is

concerned, same may be done in terms of the direction of the Apex

Court in Kumari Madhuri Patil and another versus Addl.

Commissioner, Tribal Development and others reported in (1994)

6 SCC 241. According to Mr. Das, learned counsel, these issues were

never considered by the tribunal and as such the impugned order

passed by the tribunal should be set aside and the official respondents

may be directed by this court to offer compassionate appointment to

petitioner Smt. Manipriya Deb Barma and release the outstanding dues

of PF, gratuity etc. of late Nagendra Deb Barma to the daughter of the

petitioner.

[9] Mr. A. De, counsel appearing for the official respondents

argued that pursuant to the order of the tribunal, the official

respondents started processing for appointing Ms. Rinku Deb Barma

(respondent No.4) on compassionate ground due to the death of her

father in harness. Mr. De, learned counsel argues that the extant

Railway Rules and more particularly the Railway Board's circular No.

W.P(C)(CAT) No. 01 of 2019 Page - 15 of 24

RBE 01/92 (Supplementary Circular No.5 to Master Circular No.16) do

not permit compassionate appointment of the 2nd widow and her

children unless the administration permitted the 2nd marriage, in special

circumstances, taking into account the personal law etc. In the given

case late husband of the petitioner never obtained permission for

contracting 2nd marriage with the petitioner. Counsel submits that the

said circular was presented before the tribunal. The tribunal after

considering the peculiar facts and circumstances of the case and the

merit of the said circular dated 02.01.1992 of the Railway Board,

allowed the claim of compassionate appointment in favour of Ms. Rinku

Deb Barma (respondent No.4).

[10] Mr. B. Banerjee, counsel appearing for respondent No.4

contends that claim of the respondent for compassionate appointment is

supported by law. Counsel submits that after appreciating the facts and

circumstances presented before the tribunal and after complete

application of judicial mind, tribunal decided the case in favour of

respondent No.4 directing the official respondents to provide

compassionate appointment to her on the ground of the death of her

father in harness. Mr. Banerjee, learned counsel, argued that the

Railway Board's circular dated 02.01.1992 stands good since the same

has not been challenged before any judicial forum and the official

respondents cannot provide compassionate appointment to Smt.

Manipriya Deb Barma (petitioner) bypassing their own circular. Counsel

W.P(C)(CAT) No. 01 of 2019 Page - 16 of 24

further contended that petitioner was completely aware of the fact that

Smt. Swapna Deb Barma was the first wife of late Nagendra Deb Barma

who had three children including Ms. Rinku Deb Barma through his first

wife. Despite knowing these facts, she fraudulently obtained a false

survival certificate and submitted it before the official respondents to

defeat the claim of respondent No.4. Mr. Banerjee, learned counsel

submits that in view of such conduct of the petitioner she does not

deserve any equitable relief. Counsel further contends that

compassionate appointment is not a source of recruitment. It is an

exception to general rule of recruitment in public services by open

competition. Therefore, if there is a scheme or circular for such

compassionate appointment, the same should be strictly adhered to. In

support of his contention, counsel has relied on the decision of the Apex

Court in State Bank of India & Anr. Vs. Raj Kumar reported in

(2010) 11 SCC 661 wherein the Apex Court has held as under:

―8. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process.

The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under

W.P(C)(CAT) No. 01 of 2019 Page - 17 of 24

the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.

9. Normally, the three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfillment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the scheme in force at the time of death would apply.

10. On the other hand, if a scheme provides that on the death of an employee, a dependent family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfill any eligibility criteria, then the scheme creates a right in favour of the applicant, on making the application and the Scheme that was in force at the time when the application for compassionate appointment was filed, will apply. But such schemes are rare and in fact, virtually nil.

11. Normal schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. Under many schemes, the applicant has only a right to be considered for appointment against a specified quota, even if he fulfils all the eligibility criteria; and the selection is made of the most deserving among the several competing applicants, to the limited quota of posts available. In all these schemes there is a need to verify the eligibility and antecedents of the applicant or the financial capacity of

W.P(C)(CAT) No. 01 of 2019 Page - 18 of 24

the family. There is also a need for the applicant to wait in a queue for a vacancy to arise, or for a Selection Committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies.

12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.‖

[11] Counsel submits that the Railway Board's circular dated

02.01.1992 with regard to appointment on compassionate grounds

provides that the 2nd widow and her children are not to be considered

for such appointment unless under special circumstances permission for

2nd marriage was granted to the deceased employee taking into account

his personal law. Counsel argues that this circular which is in force

requires strict compliance for giving compassionate appointment and

therefore petitioner is not entitled to such appointment. Counsel,

therefore, urges the court to reject her petition upholding the order

passed by the tribunal.

[12] In this factual background of the case, the following point

arises for our consideration.

W.P(C)(CAT) No. 01 of 2019 Page - 19 of 24

Whether in the given facts and circumstances of the case

and materials available on record, impugned order dated 29.01.2019

passed by the tribunal directing the official respondents to consider the

claim of Ms. Rinku Deb Barma (respondent No.4) for compassionate

appointment is sustainable or not.

[13] In the course of hearing, the tribunal examined the

service records of the deceased employee and found that he furnished

the details of his family members in the prescribed family declaration

form from time to time which was also countersigned by the authorized

officer of his department. Said declaration form contained the names of

his wife Swapna Deb Barma, daughters Sampa Deb Barma, Rinku Deb

Barma (respondent No.4) and son upto 12.07.2005. Only in the

declaration form submitted on 13.07.2005 the deceased employee

included the name of petitioner Manipriya Deb Barma and her daughter

Payel Deb Barma besides the names of Smt. Swapna Deb Barma and

other three children including respondent No.4. From the service

records of the deceased employee and court orders in the maintenance

proceedings whereby the deceased employee was asked to pay

maintenance allowance to his wife Swapna Deb Barma, tribunal held

that Smt. Swapna Deb Barma was the first wife of the deceased

employee and Ms. Rinku Deb Barma (respondent No.4) was born to

them through his first wife. Tribunal also relied on Railway Board's

circular No. RBE 01/1992 dated 02.01.1992 which provided as under:

W.P(C)(CAT) No. 01 of 2019 Page - 20 of 24

―RBE No. 01/1992: Appointment on Compassionate Grounds - Cases of Second window No.E(NG)II/91/RC-1/136, dated 02.01.1992 (SC No.5 to MC No.16)

Sub: Appointment on Compassionate Grounds - Cases of Second window and her wards.

1. It is clarified that in the case of Railway employees dying in harness, etc. leaving more than one widow along with children born to the second wife, while settlement dues may be shared by both the widows due to Court orders or otherwise on merits of each case, appointments on compassionate grounds to the Second widow and 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.

2. The fact that the second marriage is not permissible clarified is invariably in the terms and conditions advised in the offer of initial appointment.

3. This may be kept in view and the cases for compassionate appointment to the second widow or her wards need not be forwarded to Railway Board.‖

[14] Tribunal also referred to Railway Services (Conduct)

Rules, 1966 and expressed surprise as to why the conduct of the

deceased employee was not questioned by his department for

contracting 2nd marriage in violation of the said service conduct rules. At

this juncture, it would be apposite to refer to the relevant provision of

Rule 21 of the Railway Services (Conduct) Rules, 1966 which provides

as under:

―21. Restrictions Regarding Marriage: (1) No railway servant shall enter into, or contract, a marriage with a person having a spouse living; and

(2) No railway servant, having a spouse living shall enter into, or contract, a marriage with any person.

W.P(C)(CAT) No. 01 of 2019 Page - 21 of 24

(3) A railway servant who has married or married a person other than of Indian Nationality shall forthwith intimate the fact to the Government. Provided that the government may permit a railway servant to enter into, or contract, any such marriage as is referred to in clause (1) or clause (2), if it is satisfied that --

(a) such marriage is permissible under the personal law applicable to such railway servant and other party to the marriage; and

(b) there are other grounds for so doing.‖

[15] The present petitioner who was a respondent before the

tribunal also raised the issue of nationality and caste status of Ms. Rinku

Deb Barma (respondent No.4 herein). Tribunal did not accept her plea

on the ground that she could not produce any document in support of

her stand. As discussed, petitioner Manipriya Deb Barma also filed

W.P(C) No. 189 of 2020 in this court challenging the nationality and

caste status of respondent No.4 in which the following order was passed

by this court on 04.03.2020:

―The petitioner claims to be the wife of the deceased railway servant. She has sought compassionate appointment on the basis of death of her husband. The respondent No.7 claims to be the daughter of the first wife of the deceased. She contends that the deceased never got divorced from her mother and, therefore, could not have remarried with the petitioner. The disputes between these two persons as to who should be given appointment on compassionate grounds are pending. Pending such issues the petitioner had written to the Sub- Divisional Magistrate for cancellation of the said two certificates on the ground that they have been obtained by making false claims.

W.P(C)(CAT) No. 01 of 2019 Page - 22 of 24

Insofar as the nationality certificate is concerned, the petitioner had applied to the SDM under letter dated 09.08.2018. His representation is pending which may be disposed of by the said authority. About the petitioner's allegations, I make absolutely no observations. So far as the cancellation of the caste certificate is concerned, the same can be done only as provided by the Supreme Court in case of Kumari Madhuri Patil and another versus Addl. Commissioner, Tribal Development and others reported in (1994) 6 SCC 241 and the relevant statutory rules for which purpose the petitioner must approach the correct authority.

With these observations and directions the petition is disposed of.

Pending application(s), if any, also stands disposed of.‖

[16] Counsel of the petitioner did not apprise us as to whether

petitioner approached the competent authority seeking cancellation of

the caste certificate of Ms. Rinku Deb Barma after the said order was

passed in W.P(C) No. 189 of 2020. On the other hand tribunal has

recorded clear finding that Manipriya Deb Barma could not produce any

proof with regard to her challenge to the caste status and nationality of

Ms. Rinku Deb Barma.

[17] There is no doubt that for appointment, respondent No.4

will be required to file declaration supported by documents with regard

to her nationality and caste status subject to verification by the

appointing authority. If she resorts to falsity, legal consequence will

follow. Petitioner cannot defeat her claim for compassionate

W.P(C)(CAT) No. 01 of 2019 Page - 23 of 24

appointment on such unfounded allegations if she is found otherwise

eligible.

[18] With regard to the declaration of the deceased employee

in his Will (Annexure-5) that in the event of his death in harness, his

wife Manipriya Deb Barma would be given compassionate appointment,

tribunal rightly held that no govt. servant can decide by execution of a

Will who of his family will be given compassionate appointment in the

event of his death in harness. Such appointment can be given to eligible

members of the family of the deceased only in terms of the applicable

scheme/rules and regulations.

[19] For the aforesaid reasons tribunal held that even though

the daughter of the petitioner would be treated a legitimate child of the

deceased employee for all purposes, claim of the petitioner for

compassionate appointment would not succeed in view of the Railway

Board's circular quoted above, which provided that compassionate

appointment would not be given to second wife if the 2 nd marriage,

even if permissible under custom, was contracted without prior

permission of the administration. Apparently petitioner has raised no

challenge to the circular.

[20] The question of permissibility of 2nd marriage among

tribals is not relevant because the Railway Board's circular has provided

in clear terms that 2nd wife, where marriage is contracted without prior

W.P(C)(CAT) No. 01 of 2019 Page - 24 of 24

permission of the administration would not be entitled for

compassionate appointment. Therefore, tribunal decided that Ms. Rinku

Deb Barma, daughter of the deceased through his first wife was entitled

to be considered for compassionate appointment and accordingly

directed the official respondents to consider her claim for

compassionate appointment. This circular intends to give primacy to the

entitlement of the first wife to compassionate appointment where the

2nd marriage is contracted by an employee without prior permission of

the administration even though his custom permits such marriage and

by no stress of imagination the circular can be said to have been made

to nullify 2nd marriage where it is permissible under the custom of the

employee. Therefore, the question with regard to the validity of the 2nd

marriage of the deceased employee cannot be an issue in this case.

[21] In the aforesaid facts and circumstances of the case and

for the reasons stated above, we find no ground to interfere with the

decision of the tribunal.

Resultantly, the petition stands dismissed.

In terms of the above, the case is disposed of. Pending

application(s), if any, shall also stand disposed of.

    (S.G. CHATTOPADHYAY), J                              (AKIL KURESHI), CJ
Rudradeep




W.P(C)(CAT) No. 01 of 2019