Central Administrative Tribunal - Patna
Manish Kumar vs Railway on 28 May, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00676/2019
050/00
Reserved on : 03.05.2024
Pronounced on : 28.05.2024
CORAM
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER [J]
Manish Kumar Son of Late Chandra Shekhar Singh, resident of
Mohallah - Gurudaspur Tola, Post-- Bihar, P.S. - Barauni, District -
Begusarai (Bihar).
.......... Applicant.
-Versus
Versus-
1. The Union of India through the General Manager, East Central
Railway, Hajipur, P.O. - Digghi Kalan, P.S. - Hajipur, District -
Vaishali, At Hajipur, PIN Code - 844101 (Bihar).
2. The General Manager (Personnel), East Central Railway, Hajipur,
P.O. - Digghi Kalan, P.S. - Hajipur,
Hajipu District - Vaishali, At Hajipur,
PIN Code - 844101 (Bihar).
3. Manager, East Central Railway, Danapur
The Divisional Railway Manager
District - Patna, PIN Code - 815101 (Bihar).
4. The Senior Divisional Personnel Officer, East Central Railway,
Danapur District - Patna,
a, PIN Code - 815101 (Bihar).
5. The Senior Divisional Engineer (Co (Co-Ordination), East Central
Railway, Danapur District - Patna,, PIN Code - 815101 (Bihar).
......... Respondents.
For Applicant : Shri M.P. Dixit,, Advocate.
For Respondents : Shri Deepak Kumar , Addl. Standing Counsel
ORDER
AS PER : AJAY PRATAP SINGH, MEMBER [JUDICIAL] [JUDIC
1. This OA at the instance of applicant seeking direction to respondents to set aside order dated 02.03.2015 whereby in view of order dated 24.01.1992 by CPO/ Eastern astern Railway, Railway Calcutta, applicant, son of second wife, has been held to be ineligible for appointment on compassionate grounds. So also applicant seeking direction to consider and issue of appointment order without any further delay as per his educational qualification along with all consequential benefits.
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PRAYER
2. Applicant has claimed following main relief (as extracted from OA) as under:
under:-
8.1 That your Lordships may graciously be pleased to declare the impugned action and order dated 02.03.2015 as contained in Annexure A/6 whereunder the son of the deceased employee has been deprived from appointment on compassionate ground being the son of the second wife as unjust, unsustainable and contrary to the Judgement & Order dated 28.02.2017 passed by Hon'ble Division Bench of Madras High Court in W.P. No. 36981 of 2015 [Union of India V/s Smt. M.Karumbayee) upheld by Hon'ble Supreme Court vide Order dated 18.09.2017 passed in Diary No(s). 27352 of 2017 and Full Bench of Hon'ble Patna High Court as contained in Annexure-A/7 A/7 A/9 and A/10 respectively whereunder the very Circular of the Railway Board dated 02.01.1992 denying the compassionate appointment to the son of the second wife has been set aside.
8.2 That your Lordships may further be pleased to direct / command the Respondents to consider and issue offer of appointment letter in favour of applicant without any further delay against the appropriate post as per his educational qualification. 8.3 That your Lordships may graciously be pleased to direct / command the Respondents spondents to grant all consequential benefits in favour of the Applicant.
8.4 Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the Applicant."
FACTS IN BRIEF
3. Shorn of unnecessary details briefly stated fact adumbrated by applicant that Shri Chandra Shekhar Singh working as Clerk Grade-II Grade II (Junior Clerk) under Senior Section Engineer (Bridge), ECR, Garhara died on 11.08.2009 in harness. Deceased employee was legally le married ied to Smt. Uga Devi, the first wife and after wedlock of deceased employee and his first wife, there was no issue. On consent of first wife, second marriage with Ranju Devi was solemnized. Out of wedlock with second marriage one daughter and two sons name namely, ly, Mukund Kumar and Manish Kumar (Applicant in OA) were born. On the consent of first wife applicant has submitted application for appointment on compassionate ground. It is also the case of applicant that deceased employee has furnished information giving ng family details including name of second wife as well as children born from second marriage and Railway has accepted nomination relating to the members of the family. Applicant has further made averment that with consent of first wife of deceased employe employee. Applicant pplicant has submitted application for compassionate appointment and respondents have illegally // 3 // OA/050/00676/2019 denied consideration for appointment relying on letter dated 24.01.1992 issued by CPO CPO/Eastern Railway/ Calcutta.
4. Per-contra respondents have contested the claim of applicant by filing written statement stating that Staffs & Welfare Inspector has enquired into the matter and report revealed that applicant is the son born from the second wife of deceased employee married without taking permission from the Railway Administration and his first wife was also alive at the time of second marriage. So also Railway has relied on Railway Board letter dated 24.01.1992, wherein it is clarified that in case of Railway employees dying in harness leaving more than one widow along with children born to second wife wife,, while settlement of dues may be shared by both the widows due to Court orders or otherwise on merits of each case, so far the appointment on compassionate ground to the second econd widow and her children are no nott to be considered unless administration has permitted the second marriage in special circumstances circumstances, taking into account of personal law. Further case of respondents that second widow was informed about impugned order dated 02.03.2015 that appeal of appoin appointment tment of applicant on compassionate ground is not tenable in the light of Railway Board letter dated 24.01.1992. So also respondents have relied on RBE No.42/2018 in cases of Railway servants governed by Hindu Marriage Act, 1955 if such Railway Servant has left children, who have been treated as legitimate or deemed ed to be legitimate, under Section ection 16 of Hindu Marriage Act, 1955 neither widow can nominate them as bread winner for appointment nor such children can claim for appointment on compassionate groun ground. Stand of the respondents that second marriage with Ranju Devi was not permitted by the Railway Administration and under sub-section (1) of Section 5 of Hindu Marriage Act, 1955 1955, second marriage was void as same has been solemnized during life time of fi first rst wife without taking divorce. So also stated that Railway Board has taken into account orders passed by various Hon'ble Courts and in view of Railway Board letter dated 24.01.1992 issued by CPO CPO/ER/Calcutta Calcutta and RBE No.42/2018 dated 21.03.2018, applicant being son of deceased employee born out of wedlock with second wife, marriage is void under sub-section section (1) ( of Section 5 of Act, 1955 and applicant has no right for consideration for appointment on co compassionate mpassionate ground.
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5. Rejoinder has also been filed by applicant specifically denied contention of respondents made in the written statement statement.
CONTENTIONS
6. Shri M.P. Dixit, learned counsel appearing for applicant contended that
(i) Impugned mpugned order dated 02.03.2015 02.03.2015 is in violation of established principle of law on subject of consideration for appointment of son of the second wife of deceased employee. The case of applicant has been forwarded with the consent of first widow and there is no impediment to consider and and grant appointment on compassionate ground as there was no issue born out of wedlock of employee with first wife, namely Smt. Uga Devi. Shri M.P. Dixit further argued that RBE No.42/2018 has been quashed by our own Hon'ble High Court in case of Smt. Triveni Triv Devi (Supra) upheld by Hon'ble Supreme Court. So is the case related to Eastern Railway letter dated 24.01.1992 based on Railway Board letter dated 02.01.1992 set-aside set aside by Hon'ble High Court Calcutta in case of Smt. Namita Goldar (Supra) attained finality ity and approved by Hon'ble Apex Court in case of V.R. Trapathi (Supra).
(ii) Hon'ble High Court, Kolkata in case of Smt. Namita Goldar ar versus Union of India & Ors, reported in 2010(1) Cal.L.J.464,, Hon'ble High Court, Calcutta was seisin with similar issue has specifically held that second marriage during subsistence of first marriage may be illegal but children born out of such second marriage are legitimate and also entitled to estate of father and consideration for compassionate appointment.
(iii) So also applicant submitted that Hon'ble High Court, Calcutta in Smt. Namita Goldar (Supra) has set aside the Railway Board letter No.01/92 dated 02.01.1992 and order passed by Hon'ble High Court attained finality.
(iv) Hon'ble Supreme Court in case cas of Rameshwari Devi versus State of Bihar & Ors reported in 2000(2) SCC 431 has settled the controversy and under Section 16 of Hindu // 5 // OA/050/00676/2019 Marriage Act, 1955 the children of a void marriage are legitimate.
(v) Hon'ble High Court of Madras in case of Union of India versus Smt. M. Karumbayee decided on 28.02.2017 has also specifically held that children of second wife of deceased employee are legitimate and entitled for appointment on compassionate ground and respondents cannot deny consideration based on Railway Board Board Circular dated 02.01.1992. Hon'ble Supreme Court in case of Union of India versus M. Karumbayee on 18.09.2017 has dismissed the SLP and upheld order dated 28.02.2017 passed in case of Smt. M. Karumbayee (Supra).
(Supra)
(vi) In case of Bihar State Electricity Board & Ors. Versus Chandra Shekhar Paswan reported in 2019(2) PLJR 500 Full Bench of Hon'ble High Court, Patna has also dealt with issue involved in present case related to consideration of children of the second wife entitled for consideration of appointment on n compassionate ground.
(vii) Full Bench of our own Hon'ble High Court, Patna in case of Chandra Shekhar Paswan (Supra) has relied upon Hon'ble Supreme Court decision in case of Union of India versus V.R.. Tripathi (2019) 14 SCC 646 and so also on order passed by y Delhi High Court in case of Union of India versus Pankaj Kumar Sharma in WP(C) 9008/2014 and on order passed by Hon'ble High Court, Calcutta in case Smt. Namita Goldar (Supra) and in case of M. Karumbayee (Supra).
(viii) Division Bench of our own Hon'ble High Court in case of CWJC No.12886/2018 title Union of India and another versus Asharfi Devi also took a similar view that applicant son of second widow cannot be deprived of due consideration for appointment on compassionate ground.
(ix) In case of Smt. Triveni Devi and others versus Union of 033/2020 decided on 07.07.2021, India in CWJC No.7033/2020 Division Bench of our own Hon'ble High Court after considering the judgments of Hon'ble High Court of Calcutta // 6 // OA/050/00676/2019 and Madra and Division Bench decision in case of Asharfi Devi (Supra), so also placed reliance on ratio laid down by Hon'ble Supreme Court in case of V.R. Tripathy (Supra) has taken similar view that children born out of void marriage are legitimate children and under Section 16 of Hindu Marriage Act, 1955 also entitled for consideration for compassionate appointment.
7. Shri Deepak Kumar, learned Addl. Standing Counsel appearing for respondents has contended that:
that:-
(i) Impugned order dated 02.03.2015 and RBE No.42/2018 dated 21.03.2018 are for consideration for appointment on compassionate ground and applicant is not entitle for consideration and there is no matter of right for appointment.
(ii) RBE No.217/2019 dated 30.12.2019 30.12.2019 permits children born of second wife for consideration for appointment on compassionate ground but said RBE prospective p spective not applicable in case of applicant as ex-employee ex employee died in harness priorr to order of 2019 and purpose of appointment on compassionate ground is to meet immediate need to overcome financial crisis which fallen on family that bread winner since there is more than a decade of filing OA.
8. No other points pressed at the Bar by learned counsel appearing for the parties.
DISCUSSIO DISCUSSION
9. Heard. This his Tribunal has bestowed anxious considerations on the rival contention contentions of learned counsel appearing for the parties and perused the material placed on record as well as considered precedence relied on.
10. Admitted facts in the case that Chandra Shekhar Singh was working as Clerk Clerk-II II under Senior Section Engineer (Bridge), East Central Railway, Garhara and died in harness on 11.08.2009. The deceased employee employee, the first marriage was solemnized with Smt. Uga Devi and there was no issue out of wedlock with first wife.
wife The deceased employee solemnized the second marriage with Ranju Devi with consent of first wife and out of wedlock of second marriage one daughter and two sons were born. It is also not disputed that with the consent of firs firstt wife applicant has // 7 // OA/050/00676/2019 submitted application for appointment on compassionate ground despite of being children born out of second marriage. So also nomination paper submitted including second wife and children born from second marriage as members of Railway employee was accepted. The first wife has left for heavenly above on 09.12.2011. Dispute in the present case in hand as stand of the applicant that death of employee in harness on 11.08.2009 whereas RBE No.217/19 dated 30.12.2019 has came into existence af after ter date of death of Railway employee in harness and applicant is not entitled for the appointment intment on compassionate ground. As RBE No.217/19 was not in existence and in view of Railway Board letter dated 24.01.1992 and 02.01.1992 applicant is not entitled for consideration for appointment on compassionate ground being child born out of second marriage void in eye of law. Whereas counsel for applicant submits as per policy applicable on date of consideration of application entitled for appointment. RBE No.42/2018 /2018 and Railway Board letter dated 02.01.1992 and CPO/ER/Kolkatta letter dated 24.01.1992 also stands quashed by Hon'ble High Court, Patna and Kolkatta respectively.
THE ISSUE
11. Considered the above submissions of learned counsel appearing for parties and perused the material placed on record and relief claimed by applicant. The issue for consideration consideration:-
"whether whether applicant son of deceased employee born of second marriage is legitimate and entitle for consideration for appointment accordance with scheme prevalent in Railway?"
12. Before efore dealing with rival contention advance at Bar, it is required to quote relevant portion of scheme relates to Railways judgment, binding precedence in cases involving similar issue, binding precedence by Hon'ble Supreme Court, Hon'ble High Court and our own Hon'ble High Court,, Patna.
RELEVANT SCHEME (A) Extract of relevant portion of RBE applicable for appointment on compassionate ground in Indian Railways for ready reference is reproduced as under:-
under:
"(vii) Children born to the second wife may also be considered for CGA even where the second marriage has not been specifically permitted by the administration. However, since compassionate appointment after demise of the Railway employee can be considered for granting to only one // 8 // OA/050/00676/2019 dependent family member on merits, a child born to the second wife can be considered for such appointment only after ascertaining that there is no objection to this from the first wife or her children. Where the first wife (legally (legall wedded wife) opts for such compassionate appointment either for herself or one of her own children, such claim will have priority over any competing claim made by the second wife for any of her children. These provisions are effective from 11.12.2018."
[E(NG)II/2016/RC-1/CR/12(pt.) 1/CR/12(pt.) dated 30.12.2019 (RBE No.217/2019) and 02.11.2023 (RBE No.120/2023] [Emphasis Supplied] ed] CASE LAW (B) (a) Hon'ble Supreme Court in case of Rameshwari Devi versus State of Bihar & ors. Reported in 2000(2) SCC 431 specifically held thatthat the second marriage during the subsistence of first marriage may be illegal but the children born out of such second marriage are legitimate and are also entitled to the estate of the father. Paragraph 14 of judgment reads as:-
"14. It cannot be disputed that the marriage between Nariain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section to of this Act children of a void marriage are legitimate. Under Un the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstly on heirs in Clause (1) which include the widow and son. Among the widow and son, they all get shares (Ser:
Sections 8,10 and the Schedule to the Hindu Succession Act, 1956) Yogmaya Devi cannot c be described as a widow of Narain n Lal, her marriage with Narain Lal L being void. The sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal That is, however, the legal position when a Hindu male dies intestate."
(b) In the case of Namita Godar versus Union of India & Ors, reported ported in 2010(1) Cal. L.J. 464, 464 Hon'ble High Court Calcutta held -
"6. In view of the law as settled by the Supreme Court no distinction can be made amongst the children of the first and second wife of a deceased employee. In the present case, however, first wife was issueless and died shortly after the death of the employee concerned.
7. Therefore, the eldest son of the second wife, namely the petitioner No. 2 herein is entitled to claim appointment of compassionate ground on account of the sudden death of the employee concerned.
8. The learned Tribunal, in our opinion, has ha 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 ssionate appointment to the said son of the second wife, namely the petitioner No. 2 herein and // 9 // OA/050/00676/2019 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 issuedis 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 (supra).
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.
10. For the reasons discussed hereinabove, we direct the respondents Railway Authorities to allow the claim of the petitioner No. 2 for appointment on compassionate compassionat ground and issue appropriate order of appointment in favour of the said petitioner No. 2 without any further delay but positively within a period of two months from the date of communication of this order.
11. This writ petition thus stands allowed. There The will be, however, no order as to costs."
costs.
[Emphasis Supplied] ed]
(c) In case of Union of India versus Smt. M. Karumbayee Division Bench of Hon'ble High Court, Madras decided on 28.02.2017 placed reliance on Division Bench decision of Kolkata High Court in casee Smt. Namita Goldar versus Union of India and in para 6 and 9 reads as :-
:
"6. In view of the above decision of the Kolkatta High Court, the Tribunal has reasoned that Railway cannot cite the Board's Circular dated 02.01.1992 and rejected the contention put forth on behalf of the respondents. In such view of the matter the Original Application came to be allowed."
"9. In the aforesaid circumstances the aforesaid circular issued by the Railway Board on 02.01.1992 stands quashed to the extent it prevents the children of the second wife from being considered for appointment on compassionate grounds."
(d) Hon'ble Supreme Court in case of Union of India versus V.R.Tripathi, reported in (2019) 14 SCC 646 paragraph h 20 held as follows:-
follows:
"20. Finally, it would be necessary to dwell on the submission which was urged on behalf of the respondent that once the circular dated 2 January, 1992 was struck down by the Division Bench of the Calcutta High Court in Namita Goldar (supra) and which was accepted accep and has been implemented, it was not thereafter open to the railway authorities to rely upon the same circular which has all India force and effect. There is merit in the submission. Hence, we find it improper on the part of the Railway Board to issue a fresh circular on 3 April, 2013, reiterating the terms of the earlier circular dated 2 January, // 10 // OA/050/00676/2019 1992 even after the decision in Namita Goldar (supra), which attained finality."
[Emphasis Supplied] ed]
13. Applying aforesaid principle of laws/norms for consideration for appointment on compassionate ground in Railways as regard to cases of children born out of void marriage applying the scheme of appointment on compassionate ground as evident from facts of case that applicant is son of second widow and th thee case for compassionate appointment has been submitted with the consent of first wife Smt. Uga Devi. So also this is clear as noon day that in case of Smt. Namita Goldar (Supra) Hon'ble High Court, Calcutta Seisin with identical issue of consideration of case of children born from second marriage has held that marriage under sub Section ((1)) of Section 5 of Act 1955 was void marriage but under Section 16 of Act 1955 stipulates that children of a void marriage are le legitimate gitimate and are entitled for equal share being legitimate son entitle to the property can equal share along with first wife and son born with marriage of first wife. Legal position has been clarified when a Hindu male dies interstate.. So also Hon'ble Hgh Court, Calcutta in case Smt. Namita Goldar (Supra) has set aside the Railway Board Circular No.01/1992 dated 02.01.1992 and same ame has also attained finality and same was based on Railway Board letter dated 24.01.1992.
14. Hon'ble High Court in case of Smt. Namita Goldar (Supra) has relied on view taken by Hon'ble Supreme Court in case of Rameshwari Devi versus State of Bihar reported in 2000(2) SCC 431 and has specifically held that children of second wife cannot be treated as illegitimate legitimate under Section 16 of Act 1955 though marriage is a void marriage but children are legitimate.
15. So in the case Union of India versus Smt. M. Karumbayee decided on 28.02.2017 by Division Bench of Hon'ble High Court, Madras specifically held that Railway Board cannot deny consider consideration ation to children born to second wife based on Railway Board Circular dated 02.01.1992. Hon'ble Supreme Court in case of Union of India versus M. Karumbayee on 18.09.2017 has upheld the order dated 28.02.2017 passed by Division Bench of Hon'ble High Court Court.
16. The he issue involved in the case in hand, hand Full Bench of our own Hon'ble High Court, Patna in case Bihar State Electricity Board and another versus Chandra Shekhar Paswan reported in 2019(2) // 11 // OA/050/00676/2019
500. Their Lordships spoken through Hon'ble Shri Justice Ashwani PLJR 500 Kumar Singh, seisin with identical issue and considered judgments in cases related to Railway and observed that in case of Smt. Namita Goldar (Supra) Hon'ble High Court, Calcutta quashed Circular of Railway Board, Board, dated 02.01.1992 (Railway Board letter dated 24.01.1992) to the extent that it prevented children of second wife from being considered for appointment on compassionate ground was quashed relied in case M. Karumbayee Madras and (Supra), Hon'ble High Court, Madra d SLP also dismissed. Paragraph Nos. 53 to 57 of judgment of Full Bench, our own Hon'ble High Court for ready reference reads as:--
"53.
53. The Supreme Court also noticed the Division Bench judgment of Calcutta High Court in Namita Goldar (supra) whereby circular of the Railway Board dated 2.1.1992 to the extent that it prevented the children of second wife from being considered for appointment on compassionate ground was quashed. Its attention was also drawn to the judgment of the Division Bench of the Madras Ma High Court in Union of India vs. M. Karumbayee (supra), which had followed Namita Goldar (supra). The Supreme Court noticed that Special Leave Petition filed against the judgment of the Division Bench was dismissed by the Supreme Court on 18.9.2017.
54.
4. Having noticed the aforesaid judgments, the Supreme Court observed:-
"Finally, it would be necessary to dwell on the submission which was urged on behalf of the respondent that once the circular dated 2 January, 1992 was struck down by the Division Benchh of the Calcutta High Court in Namita Goldar (supra) and which was accepted and has been implemented, it was not thereafter open to the railway authorities to rely upon the same circular which has all India force and effect.
There is merit in the submission.
submissi Hence, we find it improper on the part of the Railway Board to issue a fresh circular on 3 April, 2013, reiterating the terms of the earlier circular dated 2 January, 1992 even after the decision in Namita Goldar (supra), which attained finality."
55. Apparently, the judgment passed in Union of India vs. V.R. Tripathi (supra) by the Supreme Court is contrary to the Full Bench of this Court in Union of India vs. Sanjay Kumar (supra) as it has acknowledged the right to the child of the second marriage and has also held that 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 w Article 14 of the Constitution. It has acknowledged the right to compassionate appointment to the child of second marriage under Section 16(1) and 16(3) of the Hindu Marriage Act. The principle laid down by the Supreme Court supersedes those taken by the t Full Bench of this Court in Union of India vs. Sanjay Kumar (supra). The said principle having enunciated by the highest Court of the land has a binding force. The authoritative pronouncement of Apex Court on the point of compassionate appointment in V.R. V. Tripathi (supra) eclipses the decision of the Full Bench of this Court in Union of India vs. Sanjay Kumar (supra), which was even based on misconstruction of Railway Board's circular dated 2.1.1992 as the said circular was not in existence after Namita Goldar's case.
56. In the light of the authoritative pronouncement of the Supreme Court in Union of India vs. V.R. Tripathi (supra). we find that the // 12 // OA/050/00676/2019 condition imposed by the circular no. 937 dated 23.6.2005 issued under the signature of Joint Secretary, Personnel P and Administrative Reforms Department, Government of Bihar, Patna, which inter alia bars compassionate appointment to the children born from second marriage of the deceased employee cannot be held to be legal and justified. 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, the State cannot exclude such a child by issuing circular or letter from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires.
57. We are also of the opinion that in view of the ratio laid down by the Supreme Court in Union of India vs. V.R. Tripathi (supra), an employer, who is amenable to Part III of the Constitution cannot c deny the benefit of compassionate appointment, which is available to the other legitimate children. The State cannot lay down a condition while making the scheme or rules inconsistent with Article 14 of the Constitution. In view of Section 16 of the Hindu Marriage Act, 1955, which regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, the condition of prior approval of the employer before the second marriage of the deceased employee cannot be sine qua non to the children born out of second marriage. Such a condition of exclusion would be arbitrary and ultra vires as it would bring out unconstitutional discrimination between legitimate children, who form one class."
[Emphasis Supplied]
17. Full Bench of our own Hon'ble High Court has placed reliance on ratio laid down by Hon'ble Supreme Court in case of V.R. 646,, Delhi High Court in case of Tripathi, reported in (2019) 14 SCC 646 Union of India versus Pankaj Kumar Sharma (Supra), M. Karumbayee ((Supra), in case of Smt. Namita Goldar (Supra). So far as contention of respondents, it is clear as noon day that impugned order already extracted herein above respondent has denied due consideration to applicant being children born out of second marriage aand nd said Railway Circular dated 24.01.1992 has already been quashed and set aside in case of Smt. Namita Goldar (Supra) in year 2010 and respondents cannot deny right of consideration to applicant for appointment on compassionate ground based on non-existent Railway Board letter dated 24.01.1992, which has no existence in eyes of law.
18. Our own Hon'ble High Court, Patna in case of Smt. Triveni Devi and others versus Union of India in CWJC No.7033/2020 decided on 07.07.2021 has allowed similar case and present case is also no difference. Their Lordships in case of Smt. Triveni Devi (Supra) has also set aside the Railway Board Circular dated 42/2018 dated 21.03.2018 prohibiting widow of deceased employee for nominating the children en treated as legitimate under Section 16 of Hindu Marriage Act, 1955 for // 13 // OA/050/00676/2019 their appointment on compassionate basis as contained in para - 5 being contrary to law laid down by Hon'ble Supreme Court in case of V.R. Tripathi (Supra).
19. Considering the peculiar facts and circumstances of present case and legal issue in hand, present case is also qualified by precedence binding by judicial pronouncements already cited herein above in paragraph No.12.
20. This Tribunal is of considered opinion that case is covered ter on facts and legal issue involved in present case and no more res-- matter integra.
CONCLUSION
21. With above reasons, the issue accordingly decided in favour of applicant held entitled for consideration for appointment on compassionate grounds.
22. Impugned order dated 02.03.2015 is accordingly set aside and quashed.
23. Consequently matter is remitted to respondents to consider the case of applicant for appointment on compassionate ground grounds on merits within period of four months from production/receipt ooff certified copy of order passed today.
24. OA is accordingly stands allowed.
25. There shall be no order as to costs.
26. Any pending Miscellaneous Application(s) if any, shall stand disposed of.
Sd/-
[Ajay Pratap Singh] Judicial Member Central Administrative Tribunal Patna Bench, Patna sks/-