Central Administrative Tribunal - Mumbai
Rashtrapal Rama Ingle vs Central Railway on 24 February, 2023
Central Administrative Tribunal Mumbai Bench, Mumbai NS SY SPOR CLA. No. é 22022 4 et os A Ath m4 ee CFS Order reserved on 20° February, 2023 yey F oe ee aes Order pronounced on 24" February, 2023 Through Video conferencing:
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J) Rashtrapal Rama Ingle, (son of deceased employee Rama. Dagady} Age: 37 years, Oce: Nal, Réat Devdhaba, At Post Devdbaba, Taluka- Malkapur, Dist. Buldhana, Maharashtra 443 101.
Mob: 7709706743 .ipplicant:
(By Ms. Annie Nadar, Advocate) Sprott * i Versas The General Manager, Central Ratlway, Mumbai CST -- 400 O01.
Divisional Railway Manager, Personne! Branch Bhusawal, Central Railway, Bhusawal 425 201, Maharashtra. .. Respondents (By Ms. Neeta V. Masurkar, Advocate) Sono ted This is the second round of Utigation. Snef facts relathig to the matter are that the father of the applicant, late Mr. Rama agda ingie, was an employee of the Central Railway since 1983, and from 1986 he was working on the post of Gan lgTMaN On permanent basis, He expired in a train accident during the course oF duty on 17.07.2009 leaving behind his widew Smt. Sar reita Rama Ingle and four sons and an unmarried dar ughter. He was the sole bread-winner for the family. The ayplicant is the son of the _ deceased employee, late Mr, Rama Dagdu Ingle, through his second wife, and his date of birth is 18.12.1984. He has studied up to 10° standard § (failed). He belongs to SC community. After the death of his father, he submitted his application for grant of compassionate appointment on 28.10.2009 (Annex A-3) narrating his financial destitute and urgent need of employment to sustain his family of seven members. He claims that it is undisputed fact that he is the legal heir of the deceased employes as has been stated by the Court of Civil Judges, Senior Division _ Malkapur at Malkapur vide its order dated 23.12.2011. On non- receipt of any reply to his representation from the respondents, he submitted another representation dated 09.08.2616 prayme for grant of compassionate appointment. The respondents, vide their letter No.G/190/POV8/2016/2PG-96 dated 20.09.2016 referring to letter No.BSL/P/Rect/CG/S8/14 dated 31.08.2016 rejected his representation dated 09.08.2016 seeking compassionate appointment stating that :
tas Cha. Note ssa In terms of Railway Board's letter dated 2.01,1992 second wife and her children are not eligible for appointment on compassionate eround unless oe tien has given the permission for second Marriage, Shr Rashtrapal is also son born from IInd w iB, hence not sligible for compassionate appointment", notles dated 07.05.2019 on A-~T) to the respondents through his advocate Shri RB. Bornare, stad mg that children of the second wile ofa deceased government employee are also eligible for compassionate appointment, Through the legal notice, he . brought to the notice of respondents the judgment of the Hon'ble Supreme Court in the case of Union of India (Central Railway} V.R. Tripathi (Civil, Appeal No.12015 of 2618 dated LiI2.2018 arising out of SLP (C) No.32004/2016). Despite the judgment of the Hon'ble Supreme Court, the respondents have not taken any action on the legal notice dated 07.05, 2019, and hence being agerieved by the inaction on the part of the respondents in granting appointment to him on compassionate ground, he approached the Tribunal by way of OA No. 898/2019, which was disposed of by the Tribunal at the admission st: Age itself vide its order dated 23,01 2020, directing the respondents to reconsider the ease of the applicant for compassionate appointment in view of the judgment of the Hon' bis Apex Court in the case of VR. Tripathi (supra) and the Railway Board letter dated 30.12.2019, on its own merit, Thereafter, respondents oft roeyygeerd ony meeta sy Aatheayt ye NOD. esesccteveie dees as ait eee issued an order dated 20.03.2020 requurlig ihe anpleant to submit a No Objection Certificate (NOC) } from bis stepmother und Orst wife of the deoeased employee, late Mr. Ras Dagdu, to enable them to reconsider his candi dature for appointment. He submitted the NOC to them and « waited for an order from them granting him compassionate appointment, He alleges that respondents, instead of reconsidering bis case for compassionate appointment as directed by the Tribunal, issued the impugned order dated 23.08.2021 i refusing to reconsider his ons *y ase on the ground that the order dated 30,12.9019 is applicable prospectively and not retrospectively. They relied upon the order of the Railway Board dated 18.03.2021 (Annex A-8) while taking such stand. Being aggrieved by the impugned order dated 23.08.2021 passed by respondents, he has approached this . Tribanal by way of the present OA seeking the follow) ving reliefs:
"(a) This Hon'ble Tribunal be pleased to allow the Original Application:
(b) This Hon'ble Tribunal may further be pleased to call for the records of ? the case from the Respondents and afer examination of the same, quash and set aside the impugned orders and direct the respondents to re-consider the Applicant for compassionate appointment.
{c) To pass any such other orders in favour of the Applicant which this Non'ble Trihunal may deem just and sable im the facts and cvirctnmstances of the o $ {2} To award the costo Papalication"™.
4ae Cha. Novas suse Be a , Respondents filed their detailed reply. They stare that the rules, pertaining to grounds for compassionate appointment, applicable to railway Servanis are as under eee get G) Railway Board's Letter No. EONG-IDU VS URC-1) 136 dated 92.01.1992 which reads as under:-
"} Tt ig clarified that in the case of Railway employees dying in harmess, ete. jeaving more than ene widow elong 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 ure not to be considered unless the administration hes permitted the second mariage, in special circumstances, taking inte account the personal law, ofc.
2. The fact that the second marrage is not permissible clarified 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 meed not be forwarded to Railway Board", GQ Railway Board's Letter No. ECNGHI/2016/RC- VCR?
a (Part-l) dated 30.12.2019. Its relevant paras are referred as wider?
"2 In the case of Union of India vs. VR. Tripathi, the Hon'ble Supreme Court had, vide thelr order dated 11.12.2018 in OA No. 12015 /2018 (arising out of SLPS) We.32004/2016) dimissed on merits ike Appeal filed against the Hon'ble Bombay High Couri's Order m WP Noa Si 0/201
a) din WP Ne. 892/ 2018 m pvo Central Ret! eases thal permitted consideration for grant compassionate appoints ment to the child of 'the 2 wife of the deceased Ratbvay employ Subsequently, several other jadgements of Hoa' ble High Courts have been received in which consideration for grant of compass! tonate ground appointment fo a child bom ¢ io the 2 wife of the a "yk ata] employes has been directed based on similar ratio.
3. The matter has, therefore, been reviewed by Board ino view of above Judicial iy pronouncements considering also the views of the Central Agency Section of the Ministry of Law & Justice. In partial sapersession of ° Boaré's Circular No. EXNGHVOURC-V136 dated 02.01.1992 (RBE Na.1/1992) referred to, it has now been decided that children bor to the second wife may also be vonsidered for compassionate appaintment 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 dependent family member un mertis, a child born to the second wife can be considered for such appointment only alter ascertaining that there is no objection to this from the first wife or her children. Where the first wile { legally wedded wt) apts for such compassionate appointment cither for herself or one of her own children, such claim, will have priority over any competing claim made by the second wits for any of her children".
Railway Board's letter Ne E(NO)-I1/20 j Gf R tos VER/L2(PQ dated 18.03.2021, which further clarified the Railway Board's letter dated 30.12.2019, reads thus:
nd tA Nace ee.
"Ref Dy. CPO/R&EW/SR's letter No PBICS/S0/ Policy' VolLAVIU dated 28.01.24.
With reference to your Railway's letter referred above, if is ciarified that Board's letter Nok one ZOLA RC-VCRI2 (Py) dated 3012 2019 issued under RRBE No Zis/2018 is effective from its date of issue"
In view of the above rule positions, they contend that since COMPRSSONate appoiniment, after demise of the railway employee, can be considered for granting to s only one dependent family member on merits, a child bor te second wife can be considered for such appointment only after ascertaining that thes "js no objection to this from the first wife or ber children, Further, the Railway Board's letter dated 30.12.2019 comes into effect frorn 30.12.2019 as per the clarification issued vide its letter dated 18.03.2021, whereas the applicant's father expired on 17.07.2009, when Railway Board's letter dated 02.01.1992 was th effective. Thus, the case of the applicant for said ent Htlement was rejected vide letter dated 23.08.2021 as he failed to mect the gituaiion / etiteria of the scheme, Le. Railway Board's letter dated 02.01.1992, as applicable tl issuance of Raihvay Board's letter * dated 30.12.2019 and as applicable on the date of death of the deceased employes.
3. Applicant bas also filed rejoinder reiterating the subrnissions already made in the Original Application.
4. Counsel for the applicant submits that the respondents have failed to apply their mind to the app! Neation of the applicant we requesting for compassionale appointment and rejected the same Goo uwu.. Without taking inte cognizance the low laid dewn on the subjects, She submits that the Hoa*ble High Court had already examined the legal validity of the Raihvay Boanl's Circular dated 02.01.1992 in the case of Namite Goldar & Anr. Vs. Union of India and Ors., (2010 G3} SLR $7 (Cali in WOP.CLT. No.2 af 2009 decided on 20.02.2010 in which the following orders we passedi-
an in the aforesaid circumstances, the afuresaid circular issued by the Railway Board on 2™ January, 1992 stands quashed to the extent it prevents the children of the second wife from being considered for appointments on cormpassionate ground, Q. Far the reasons discussed hereinabove, we direct the respondents railway authorities to allow the claim of the petitioner No.2 for appointment on compassionate ground and issue appropriate order af appointment in favour of the said petitioner No.2 without any farther delay but positively within a. period of two months from the date of comriunication of this order. This writ petition thus stands allowed. There will be, however, no order as fo caste'.
Therefore, it is submitied that at the tone when the respondents cotsidered the application of the applicant for the first time, Le. on 14.07.2014, and thereafter vide the orders dated 31.08 2016 and 20.09.2016, they were fidiy aware that the Railway Board's ciroularfletter dated 02.01.1992 has been quashed fo the limited extent as stated above, and therefore, the applicant was fully 2 mk Roo sew SN PN RE OLA. Nowe (2082 eligible to be considered for appointment in view af the law laid down on the subject.
"4
5. Ske ferther submits that a similar view was taken by several courts all over the country iv warious matters anc a decision was taken that children Dorn out of the second. marrage are eligible to be considered for compassionate appointment. 'The Hon'ble Apex Court re-examined the issue in the case of Union of India (Central Railway) vs. V. BR. Tripathi (supra) upholding we f the decision of Namita Goldar (supra), the relevant para reads thus:
"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 strack down by the Division Bench of the Calcutta High Couit in Namita Goldar (supra) and which was accepted and has been implemented, if was not thereafter open to the railbvay authorities to rely upon the same circular which has all India force and effect. There is merit in the swhmussion. Hence, we find if improper on the part oF the Railway Board to issue a fresh cirewlar on 3 4 April 2013, reiterating the terms of the earlier circular dsted 2 January, 1992 even after the decision in Namita Goldar (supra}, which attaimed finality. .
21. For the above reasons, we do not Hind any merit in the appeal. The authorities shall take a decision in deems of this judgment on the application for oompassionate appaiiment in thres tionths from today. The appeal stands dismissed. No costs."
Thus, she argues thet the respondents were fully aware of the law laid down by the Hon'ble High Court of Calcutta and the Hon'ble OLA No.7e 2082 Apex Court og the subject af the time SF CONSIQEMASg the b application of the applicant Tor compassionace app OiniEn, and therefore, the stand of the respondents that the circular! 30.12.2019 shall appa pings ly cannot be legally juste since the Railway Board Circular/letter dated 02.01 1982 was strapped to the limited extent as stated above, way pack im the year 2010 and a subsequent circularietter on the same subject cannot have a prospective effect. There fore, the impugned order deserves to be quashed and set aside on this ground alone.
6 In rebuttal, counsel for the respondents argued that the judgment of Hon'ble Supreme Court in the case of VLR. Tripata:
(supra) is on consideration of case of children of second wife who were barred by Railway Board's Letter No. EQNG-IDI/ 1/91 /RC-
L136 dated 02.01.1992, from consideration at all for the reason of condition imposed in the said letter, i.c. unless second marmiage 1s contracted with the permission of the employer which is held to be ultra wires to section 16 of the Hinda Marriege Act, 1955, however, the position of first wife and her children remain ae as per the aforesaid Railway Board's ietter dated
2.O1.1992 and to that extent it is still in force till the date of {sone af sé Reatbwey Board's letter dated 30.72.2019 as per the decision of Railway Board in its fetter dated 18.03.2021 making it operative prospectively and hence the applicant' application for HonIpAssionste appc pointment is regreticd on reconsideration being old case vide impugned order dated 23.08.2021, She further argued that as the said letier of 30.12.2019 Is made effective retrospectively, it will open a pandora's box and there will % x lood of old cases for reconsideration which cannot be envisaged ny um view of non-availability of vacancies al this latter dated. She also submits that the decision af the respondents dated 23.08.2021 iS bi accordance With existing mules and repeats ons as well as the judgment of Hon'ble Supreme Court in the case of Union of India va. VIR. Tripathi as well as Railway Board's letter No EONG)LGOLA/RC-L/CR/LZ (part-f) dated 30.12.2019 and that no cause of action has arisen in favour of the applicant to file the present OA and the same is Hable to be dismissed with cost.
7. Heard the learned counsel for the parties at length and perused the entire record.
3. Compassionate appointment is a social security scheme launched by the Government to grant appointment io a dependent family member on compassionate basis. when a Government servant dies while in service or retires on medical grounds. The objective of the scheme is to provide immediate financial assistance to the family, who is left in poverty and without any means to sustain their Hvelthood. The issue of compassionate appoimtmernt derives its origin from Article 16 (2) of the Constitution of India. This type of matter was considered by the Hon'ble Supreme Court in State of Haryana & others v. Rani Devi & another, 1996 SCALE (5) 338, wherein it was observed that it need not be pourted out that cla : of the person concemed for appointment on compassionate ground is based on the premise that he was dependent on the deceased enmployee. Strictly, this claim cannot be upheld on the touchstone of Article [4 or 16 of Constitution, However, such claim is considered as reasonable and yok Pook convene Pete ead gay Ayes Ta who AE eet ge seaey 2 Set eey: weeiey pia thes Peopidys ry permissible on the basis of sudden crisis occurring in (he Tarnty © as served the State and diss while in service.
suvh omployee, whe That is wy * it ig uecessary for the aulhorities io frame rules, regulations or to Issue sucl 4 administrative orders, which can stand fie test of Articles 14 & 16. Thus, if an employee dies whe in service, then, according to rale framed by the Central Government or State Government to appoint one of the dependants, shall not be welative of Articles 14 & 16 of the Cunstitution because if is to mitigate the hardship due to the death of the bread earmer of the family and sudden misery faced by the members of the family of such employee. While reiterating the purpose of making appoitment on compassionate ground, the Apex Court National Institute of Technolegy & others v. Niraj Kumar Singh, (2006) 2 SCC 481 emphasized that all public appointments must be in consonance with Article 16 of the Constitution, Exceptions carved oul, therefore, are the cases where appointments are to be given to the widow or the dependent children of the employee, who died in hamess. Such an exception is carved out with a view to see that the family of the deceased employee, who has died in hamess, does not become a desitulc. The question often arises whether if is a legat i right. The Apex Court has emphasized that the appointment on compassionate ground carmot be clairned as a matter of right, In Mumtaz Yunus Mulani v. State of Maharashtra (2008) 11 SCC 384, the Apex Couwt has adopted the principle that appointment on compassionate ground is nota source of recraitment, bul a means to enable the family of the deceased io get over a sudden fmnancial te "a3 kot DANS 2223 ral aye ES Seas otel Seketian 6 es s syaydas yaaviel wee *S 3 orisis. The financial position of the family would nted fo be evaluated on the basis of the provisions contained im the scheme.
9. This being a second rowid of Hiiigation, the order passed by this Tribunal in the first round having become final, is most eélevant, as the same was accepted by both Ntigating parties. if would be relevant to quote the following:-
*§ The applicant has now approached this Tribunal seeking direction to the respondents to grant him compassionate appomtment in view of the judgment of Hon'ble Apex Court in the case of Union of India and Another Vs. V.R. Tripathi, reported in 2019 (1) Seale 302 and to quash and set aside the orders dated 31.08.2016 and 20.09.2016".
As can be seen the applicant hed specifically approached the tébunal on the earlier occasion secking consideration for appointment on oe grounds in view of the law laid down by the Apex Court in the of Union of India and Another s, VOR. Tripathi, reported in 2019 (1) Seale 302. That the OA filed by the applicant wes disposed of an d the following directions were issued:
"Accordingly, the present OA is also disposed of at the Admission stage liseli In view of the judgment of Hon'ble Apex Court in the case of WR. Tripathi (supra) and the Rauway Board letter dated 30.12.2019, the respondents are directed to reconsider the case of the applicant for compassionate appointment on lig own merit and mm accordance with the existing nules and reguiations as well as the Ne nOLe ed ¢ case law and the Railway Board letter dated 3 QAZL0T9.
1a This exercise De contpieted within A 8 peri' or three months from the dete of "s egoy Of this order and thereafter to communica te oa order to the applicant within a kK Me No. 27/2020 stands clase No oder as fo costs.
| Respos adenis did not challenge this order rather accepted the same and proceeded to conguler the case of the applicant by seeking NOC from the ist wifs of the deceased employee. The > said NOC was also provided by the applicant, however, case of the applicant was rejected on the basis af clarification issued by the railways on 18.03.2021, after the decision of the Tribunal dated 25 02.2020. The clarification states that the railway Board letter dated 30.12.2019 is effective from the date of its issue. It is interesting to note that the railway Board letter of 2019 is based on the decision in the case of VLR. Tripathi {supra} dated 11.12.2018, The letter dated 30.12.2019, is silent as to the applicability /effective date. The subsequent clarification dated 18.03.2021, sued by the 'Railway Board is an atternpt by the respondents ta samehow curtallput fetters on the law, as laid down dy the Hon"ble Apex court
10. That when first OA No. 898/2019 dated 23.01.2020, Was decided by this Tribunal, the law, as laid down in the case of VR. Tripath's case, and the resultant railway Board letter of 2019 were anplicable, As such applicant's case ought to have been considered in the first place in view of the decision in the case of VLR Tripathi (supra}. Whereas impugned order has been passed on the ground that decision of the railway Board of 2019 is prospective, ThA, Nore /aaae S EUEEE thay vk ceo ey Y men gee b €o4s agar f xs 'a t y-- apppeyht . Peri ignoring that the decision iSeil b based on VR. Tripathi (supra).
The first round has become final between the pares, fecision of the Karnataka High Court 5S ed os Spates re) pee a w% i.
ma ae i. L look towar ia fhe case of Suresh Babe vs Smt. S. Susheela Thimmnegowda rendered on 12 November, 1998, ILR 1998 KAR 3885 ;
"24. Tt is nsefai to refer to the decision of a Division Bench of this cout DLP. SHARMA vy. STATE TRANSPORT AUTHORITY. In that case, the State Transport Authority had made grant dated 39.10.1993, relying upon the pronouncement in W.PNo. 2052/1985. The decision in W.P.No.2052/1983 was reversed by the Supreme Cowt in KSRTC v. SECRETARY, SST AUTHORITY, The Division Bench considered the question whether the decision of the Supreme Court affected the finality and effectiveness of the grant made by STA on 29.10.1983. It was held that the reversal of the order in W.P.No.20S2/1983 by the Supreme Court will not have the effect of uprooting the decision made in another case (that is, grant made by STA) relying on the decision in WP No.2052/1983, at a time when the decision in WP.No. 2052/1983 was a binding precedent. It was firrther observed, "It is a trite proposition that even inter-parties, if the law laid down im a pronouncement is later over-ruted, as distinguished from it being reversed, its binding effect inter-parties ig not set at naught. The decision itself has to be assailed and got rid of in a manner known to or recognised by law."
12. Guided by the aforesaid , under no circumstances, the impugned order can be sustained as the same has been passed on the hasis of the clarification not in existence at the time afthe final decision in the frst round, rather the same can be stated to have eS peti awed ewer spamtiAdtins Get erin een issned without amy appicalat Gl Mk. Sate F2 FRO de smashed anc set aside impugned order dated 23.06.2021 38 quashed aml set aside.
=F Respondents are directed to consider ihe case of the appheant m 34 Teed Sie andes PEER Fae oy eg by Sete ay FES ox wh gs wf tage the light of the observations made above as per tae oraer af this tribunal in OA No. 898/2019 dated 23.01.2020, within a period of three montis from the date of receipt of the certified copy of this order, Wo order on costs.
, Harvinder Kaur Oberoi) Member GD