By G.P. Singhal, AM - The applicant has preferred this OA seeking direction to the respondents to grant her appointment on compassionate grounds, on account of death of her husband, who died in harness on 15.5.2009 while working as Box Boy in the Mechanical Department of the office of Loco Foreman, Bhopal, under Respondent No.2.
2 The applicant submitted that her application for providing compassionate appointment has been rejected vide letter dated 30.8.2011 of Respondent No.2 (Annexure A-15).She has been informed that, since there is no order of divorce between the deceased employee and his first wife, Smt. Sunita Bai, giving of compassionate appointment to her will be against the provisions of Railway Board order No.01/92 dated 2.1.1992. The applicants contention is that the first wife of the deceased Smt. Sunita Bai, who is Respondent No.3 in this case, had taken customary divorce in the Panchayat of Village Panchayat, Shivtala, District Raisen, in 1996, and thereafter she re-married with one Shri Maharaj Singh Dhakad in 1997 and is having two sons from Maharaj Singh Dhakad. After divorce, late Anil Singh, the deceased employee, entered into customary marriage with the applicant in 2001, which was performed as per the Hindu rites, and in service book of the deceased employee, name of the applicant, her daughter and widowed mother Saraswati, are mentioned.
3 The applicant further submitted that the Succession certificate in her favour has been granted by Civil Judge Class-I, Bhopal, vide order dated 10.2.2011 in MJC.78/10, whereby the applicant and her daughter has been declared legal Successors of late Shri Anil Singh. On the basis of Succession certificate, she has been paid part of the pensionary benefits by the respondents. However, her application for compassionate appointment filed on 23.6.11 (Annexure A-13) has been rejected by the Respondent No.2 vide impugned order dated 30.8.2011 (Annexure A-15). Hence this OA.
4 The respondents, in their reply, submitted that according to Railway Board Circular RBE.01/92, the applicant cannot be appointed on compassionate ground as she is the second widow and no permission for second marriage was granted by the administration to the deceased employee. As regards to the claim of the applicant pertaining to separation of first wife from the deceased employee, the respondents have filed copy of an application submitted by the first wife Smt. Sunita Bai, claiming pensionary benefits of the deceased employee. Smt. Sunita Bai has also filed another application before Respondent No.2 making similar claims regarding pensionary benefits, which means she did not get divorce from the deceased. Thus applicants claim for compassionate appointment cannot be granted.
5 The respondent No.3 has also filed reply in which she has supported the claim of applicant, stating she had executed chhod Chhuttinama with the deceased on 21.3.1996 and she has no objection if pensionary and other benefits are granted to the applicant.
6 The applicant has submitted rejoinder to the reply of the respondents, mainly reiterating the arguments raised by her in the OA.
7 We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith. We have also gone through the written arguments submitted on behalf of the applicant and Respondent No.2.
8 In this case, the only ground taken by the respondents for denial of compassionate appointment to the applicant is that such an appointment is not permissible in view of the Railway Board Circular No.RBE.1/92, which reads as under : 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 2nd 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 is invariably clarified in the terms and conditions advised in the offer of initial appointment.
3. This may be kept in view that the cases for compassionate appointment to the second widow or her wards need not be forwarded to Railway Board.
9 The learned counsel for the applicant in his written arguments has submitted that Railway Board Circular RBE.No.1/92 is already declared illegal and arbitrary by this Tribunal in OA.259/09 (Smt. Munni Bai Vs. UOI & Ors.). However, we find that this Railway Board Circular has been considered in the recent order dated 05.09.2012 in O.A. No. 822/2010 (Jitendra Kandre Vs. General Manager & Ors.). The relevant para 5 and 7 of this order is reproduced as under: 5 Facts are not in dispute. It is true that the decision of the Railway Board for not providing compassionate appointment to the child of the second wife of the employee who contracted second marriage in the life time of the first wife was not under challenge in the above referred matter. However, from reading of the entire judgment it is manifestly clear that the Honble High Court has considered Section 16(1) of the Hindu Marriage Act, 1955, which provides Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of Marriage Laws (Amendment) Act, 1976, at length and has held that the compassionate appointment and right to inherit property has no correlation, nor can be equated in any manner. The service and benefit arising out of service are governed by the terms of the contract of service or the rules governing the service of the employees and by the scheme if framed by employer. The compassionate appointment depends solely upon the terms of contract between the employer and employee and cannot be made subject matter to be governed by the personal law, when the employer has not provided so. The Honble Supreme Court in the case of State Bank of India vs. Raj Kumar, (2010) 11 SCC 661has clearly held that compassionate appointment is traceable only to the scheme framed by the employer for such appointment and there is no right whatsoever outside such scheme. It has been further observed that the decision of the Railway Board regarding not providing compassionate appointment to the child of second wife of the employee who contracted second marriage in the life time of the first wife is in consonance with the public policy of monogamy.
7 The Honble High Court of Madhya Pradesh at Jabalpur in its order dated 22.09.2009 had an occasion to consider the legality and validity of the aforesaid impugned circular dated 2.1.1992 in Writ Petition No.8847/2009, as the same was quashed by this Tribunal in the matters of Smt.Sirku Bai Vs. Union of India and others (O.A.No.177/2008 decided on 30.6.2009) and the same was further relied on by this Tribunal in Smt.Girja Bai Raikwar Vs. Union of India and others (OA No.588/2008 decided on 9.7.2009) and other subsequent matters. In the said Writ Petition No.8847/2009, the Honble High Court has clarified that any observation as to validity of the circular dated 2.1.1992 shall not come in the way of the petitioner-railways in other cases. Thus we are of the considered opinion that the Railway Board Circular No.RBE 1/92 will be operative in the case of applicant, thereby making her ineligible for compassionate appointment as it is apparent that the deceased employee had neither legally divorced his first wife nor taken permission from administration for his second marriage with the applicant.
10 In view of the aforesaid we find no justification to accede to the prayer of applicant in regard to her compassionate appointment in this case. The OA is accordingly dismissed with no order as to costs. (G.P. Singhal) (Dhirendra Mishra) Administrative Member Judicial Member
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