Central Administrative Tribunal - Hyderabad
Ganipineni Kalyani vs South Central Railway on 7 June, 2024
OA.No.020/102/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
OA.No.020/102/2023
ORDER RESERVED ON : 13.11.2023
ORDER PRONOUNED ON: 07.06.2024
CORAM:
HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
Ganipineni Kalyani w/o late G.Seshidhar,
aged about 31 yrs,
Occ:Ex.Tech-I/CDO/O/BZA, PF No.24409680871,
Railway Quarters No.83/A,
Satyanarayanapuram, Vijayawada, AP. ...Applicant
(By Advocate Mr.B.Rajesh Kumar )
Vs.
1. The Union of India, Ministry of Railways,
rep., by the General Manager,
South Central Railway, Railnilayam,
Secunderabad,
2. The Divisional Railway Manager,
South Central Railway, Vijayawada Division, AP.
3. The Sr. Divisional Personnel Officer,
South Central Railway, Vijayawada Division, AP.
4. The Sr. Divisional Financial Manager,
South Central Railway, Vijayawada Division, AP.
5. K.Uma devi (judicially separated),
d/o Kota Thirupathaih Naidu,
Jalaih Nagar, Atmakur, Nellore District, AP.
6. G.Kalyani (Married), d/o K.Uma Devi,
Jalaih Nagar, Atmakur, Nellore District, AP.
7. G.Komal, Grand son of Thirupathaih Naidu,
Jalaih Nagar, Atmakur, Nellore.
....Respondents
(By Advocate Mrs.M.Swarna, Addl.CGSC)
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OA.No.020/102/2023
ORDER
PER HON‟BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER The applicant (Ganipineni Kalyani) has filed this OA, seeking a direction to the respondents to consider her request for compassionate appointment on the demise of her husband Sri Ganipineni Seshidhar on 15.09.2019, and to settle the pensionary and death benefits, as per the Railway Board‟s Circular No.E(NG)II/2016/RC-1/CR/12 (Pt), dated 30.121.2019 and also as per the M.C.No.03/2000 on the file of Judicial Magistrate of First Class, Atmakur. The applicant also seeks to suspend the impugned order No.B/P.500/ONR/138/2019, dated 07.11.2019, asking her to submit declaratory decree.
2. The brief facts of the case, according to the applicant, are that she is the legally wedded second wife and first widow of Sri Ganipineni Seshidhar, who expired on 15.09.2019, due to road accident at Vijayawada, while working as Tech-1 at Mechanical Branch under Vijayawada Division of South Central Railway. Her case for settlement of pension and retiral benefit was not settled as the deceased Railway servant originally married Smt.G.Uma Devi and blessed with two children i.e., one daughter and son viz., G.Kalyani (Married) and G.Kamal (settled with job), who are arrayed as private respondents 6 and 7 in this OA,. Earlier, her husband Sri Ganipineni Seshidhar, filed OP.No.19/2000, dated 30.11.2000 on the file of Senior Civil Judge, Kavali, for restitution of conjugal rights as per the Hindu Marriage Act.
P a g e | 2 of 18 OA.No.020/102/2023 The Court of Senior Civil Judge, Kavali, directed Smt.G.Umadevi, who is the 1st wife, to join with her late husband and to lead family life, but she dishonoured the order and withdrawn from the society and left without any reason thereby the rival claimant has no right to proclaim the reliefs of terminal benefits, compassionate appointment and family pension as the OP itself speaks the judicial separation of marriage. Since the date of order i.e., 30.11.2000 till the death of her husband, she never ever met him except issuing a legal notice to the respondent-authorities. A decree of restitution of conjugal rights implies that the both parties are ordered to live together. Restitution of conjugal rights is the only remedy, which could be used by the deserted spouse against the other. The law dictates that the second wife and wards are entitled to get compassionate appointment and death benefits since according to Hindu Personnel Law the customary rights should follow. Accordingly, she was married to the deceased Railway servant on 30.08.2022 as per Hindu Marriages Act at Vijayawada. Later, Smt.G.Umadevi filed maintenance case and the same was ordered on 24.09.2003 directing maintenance of Rs.500/- per month to Smt.G.Umadevi and Rs.250/- each per month to daughter G.Kalyani and son G.Komal.
3. The applicant has further submitted that in the application pertaining to dependants and family pass submitted to the respondents office, her husband late Sri G.Sasidhar, has not declared the first wife‟s children viz., Smt.K.Kalyani, daughter and Sri G.Kamal, son, as their P a g e | 3 of 18 OA.No.020/102/2023 family Members, and therefore, the gratuity, PF, leave encashment etc., have been divided to herself and her daughter, as per settled law.
4. The applicant has further submitted that G.Kalyani, daughter of first wife Smt.Umadevi, who got married and not dependant on the deceased employee, is living separately with her husband and also did not make any request for compassionate appointment and submitted no objection certificate to the 3rd respondent office, and her son G.Kamal, who is also working in a private firm, is earning more than Rs.20,000/- per month.
5. The applicant has further submitted that the office of the 3rd respondent had sent a letter in her favour suggesting to file a declaratory decree suit before the competent Court, and she accordingly has filed Succession OP No.01/2020 before the Principal Senior Civil Judge, Vijayawada, and the respondents therein have filed counter affidavit stating that the deceased Railway servant did not declare the names of the private respondents in the declaration of family members while he is in service, and the said Smt.Umadevi and her children filed MC.No.03/2000 on the file of Judicial First Class Magistrate, Atmakur, Nellore District, wherein maintenance was granted, and that the applicants did not submit any documents with her relationship with deceased as there was a discrepancy with regard to P a g e | 4 of 18 OA.No.020/102/2023 the claim, but they submitted only SSC and Intermediate and the declaration submitted by the deceased Railway servant.
6. The applicant has further submitted that the respondents in SOP.No.01/2020 failed to submit that a petition was filed for restitution of conjugal rights vide OP.No.19/2000, vide order dated 30.11.2000 on the file of Senior Civil Judge, Kavali, by the deceased employee while in service, but the 1st wife denied to join him, and therefore, after refusal of Smt.G.Umadevi to join the deceased employee, she married the deceased employee on 30.08.2022 before elders as per Hindu customs and traditions and Smt.G.Umadevi, never opposed or prohibited the marriage of the applicant. Now, after the death of her husband, that too after 20 years, Smt.G.Umadevi made a baseless representation to the respondents seeking payment of settlement of amounts and family pension, which is highly objectionable, unconstitutional and bad in law. Therefore, the applicant has contended that she is eligible to be considered for compassionate as per the order of this Tribunal dated 12.03.2020 in OA.No.1073/2019, as she is the legally wedded wife and first widow and nominee of the deceased Ex. Employee, and pensionary benefits, as there are no other dependant family members of the deceased. Hence, this OA.
7. The applicant, in support of her contentions, has relied on the following Judgments:
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(i) Judgment of the Hon‟ble Supreme Court in Union of India & Another v. V.R.Tripathi (AIR 2019 SC 666/2019 (14) SCC
646);
(ii) Judgment of the Hon‟ble Bombay High Court in Yuvraj Dajee
Khadake v. Union of India, dated 21.02.2019 in
W.P.No.1564/2017
8. The respondents have contested the OA by filing a reply statement. They have submitted that Sri G.Sasidhar, while working as Technician under the control of Senior Section Engineer, Carriage & Wagon (Coaching) Depot/Vijayawada, expired on 15.09.2019.
Consequent on the demise of the ex-employee, the S&WI who caused inquiry has submitted his report on 15.10.2019 as per which, it is clear that it is rival claim case. The ex-employee Sri G.Sasidar was initially married Smt.Uma Devi on 22.12.1989. The couple was blessed with two children, one daughter, aged 28 years (married) ad one son, aged 25 years. The said Smt.G.Uma Devi is residing separately at Atmakur, Nellore District and she filed MC.No.03/2000 before the Court of Judicial Magistrate of First Class, Atmakur, and there is no decree for judicial separation and the wedlock was not dissolved.
9. The respondents have further submitted that S&WI in his report dated 15.10.2019 stated that as per the pass declaration submitted by the ex-employee during the years 2002 and 2003, only the name of the P a g e | 6 of 18 OA.No.020/102/2023 ex-employee appeared (self only), which was certified/issued by his supervisor i.e., Senior Section Engineer, Carriage and Wagon (Coaching) Depot/Vijayawada, whereas, in the pass declaration submitted by the ex-employee during the year 2006, the names of Smt.Kalyani (applicant herein), G.Sahithi and G.Thanuja Sree are shown as wife and daughters, aged 16 and 13 years respectively.
10. The respondents have further submitted that as per the S & WI‟s enquiry report, it was noticed that the late employee (G.Sashidhar) got married with Smt.G.Kalyani (daughter) born on 15.01.1991 and Kamal (son) born on 25.12.1993. Smt.G.Umadevi has filed M.C.No.03/2000 before the Court of Judicial Magistrate of First Class, Atmakur, and the Court, vide its judgment, allowed the MC and granted maintenance of Rs.500/- to Smt.Umadevi and Rs.250/- each to the children, and as informed by Smt.Umadevi, she filed only for maintenance and not for any divorce. The educational certificates, Aadhar Cards and ration cards of them reveals that Umadevi and Sasidhar (deceased employee) are wife and husband. The ex-employee had also filed O.P.No.19/2000 before the Senior Civil Judge Court, Kavali, and obtained decree for conjugal duties of SmtG.Uma Devi.
11. The respondents have submitted that during the years 2006, the ex-employee has submitted family details, in which he declared Smt.Kalyani as wife and G.Sahithi and G.Thanuja Sree as daughters.
P a g e | 7 of 18 OA.No.020/102/2023 Meanwhile, the ex-employee expired on 15.09.2019. Further, a legal notice dated 09.10.2019 on behalf of Smt.G.Umadevi claiming for death benefits and other benefits to herself and her children since they are not legally separated and another legal notice dated 25.10.2019 on behalf of G.Kalyani on the status of wife of the deceased employee, who claimed for the death benefits, have been received by the respondents‟ office. Since multiple claims have been received, the Railway administration has to pay the death benefits only to the correct legal heir, as per extant rules. Since the case turned as rival claim, both Smt.G.Umadevi and Smt.G.Kalyani were advised, vide the office letter dated 07.11.2019 to approach the competent Court of law for a declaratory decree duly impleading each other and the Railway administration and to submit the same for taking further necessary action by the Railway administration
12. The respondents have further submitted that Smt.G.Kalyani, the applicant herein, has not produced any document regarding her marriage with the late Sri G.Sasidhar and she told that their marriage took place in the year 2002. The widowed mother of the late employee had admitted that she only performed marriage between Kalyani and the late employee since the first wife has not rejoined after filing Maintenance Petition. On verification of the Pass declaration submitted by the ex-employee for the years 2002 and 2003, only the name of the late employee as „self‟ was mentioned and no other family member‟s names i.e., Smt.G.Kalyani as wife, G.Sahithi and G.Thanuja Sree as P a g e | 8 of 18 OA.No.020/102/2023 daughters in the declaration submitted for the purpose of passes, during the years 2006 and 2007. It has been advised by the Senior Divisional Finance Manager, South Central Railway, Vijayawada, vide letter dated 31.10.2019 that the PF nomination details pertaining to the ex-employee Sri G.Sasidhar are not available in IPAS/AFRES programme of their office records.
13. The respondents have further submitted that as per Section 5(i) of Hindu Marriage Act and Rule 21 of Railway Services (Conduct) Rules 1966, "(i) No Railway servant shall enter into or contract a marriage with a person having a spouse living; (ii) No Railway servant having a spouse living shall enter into or contract a marriage with any person". That the late Sri G.Sasidhar has violated both the conditions of the said provisions and as such the alleged second marriage with the applicant cannot be taken into cognizance.
14. The respondents have further submitted that the Railway administration has to pay the death benefits only to the correct legal heir as per extant rules. Since the multiple claims have been received and the case turned as rival claim, both Smt.G.Umadevi and Smt.G.Kalyani were advised vide office letters dated 07.11.2019 to approach the competent Court of law for a declaratory decree duly impleading each other and the Railway administration and submit the same for taking further necessary action by the Railway administration.
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15. The respondents have further submitted that Smt.G.Kalyani (the applicant herein) has further filed SOP No.01/2020 for Succession Certificate, death benefits and compassionate appointment in the Court of the Senior Civil Judge, Vijayawada, impleading Smt.G.Umadevi, her son, G.Komal and Divisional Railway Manager, Vijayawada as respondents and the outcome of the SOP is awaited.
16. The respondents have further submitted that as per the extent instructions dated 30.12.2019 communicated under RBE No.218/2019 on compassionate ground appointment, the children born to the second wife may also be considered for compassionate appointment 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 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 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.
17. The respondents have further submitted that as the wedlock is not dissolved between the ex-employee and his first wife Smt.G.Uma Devi P a g e | 10 of 18 OA.No.020/102/2023 and her present marital status is not known, further marriage of the deceased employee with Smt.Kalyani is to be treated as void marriage and her pre-marital status is not known (since no proof of marriage with ex-employee). As such, the applicant cannot be considered as wife of the ex-employee and hence her request for compassionate ground appointment to her daughter is not permissible and accordingly she was suitably replied.
18. The respondents have further contended that the cause of action for the applicant arose in 2019, whereas she has filed the present OA in 2023. She has also filed SOP. Hence, the OA is liable for dismissal on the ground of delay and latches.
19. The respondents have further contended that the applicant is claiming in the status of second wife of the deceased employee. As per the extent rules, compassionate appointment after demise of the Railway employee can be considered to only family members on merits of the case. A child born to the second wife could be considered for such appointment only after ascertaining that there is no objection to the same from the first wife or her children. Where the first wife (legally wedded wife) opts for such appointment either for herself or one of her own children, such claim would have priority over any competing claim made by the second wife for any of her children. As there is counter claim from Smt.G.Umadevi as wife for death benefits and other benefits, compassionate appointment in favour of the applicant is not permissible.
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20. The respondent have further submitted that during enquiry, it was noticed that the late employee (G.Sashidhar) got married Smt.G.Umadevi on 22.12.1989 and got two children. The names are Kalyani (daughter) born on 15.01.1991 and Kamal (son) born on 25.12.1993. Smt.G.Umadevi has filed M.C.No.03/2000 before the Court of Judicial Magistrate of First Class at Atmakur for maintenance and the same was allowed granting maintenance of Rs.500 to Smt.Umadevi and Rs.250/- each to the children and not granted any divorce. The educational certificates, Aadhar Cards and ration cards of the family members shows that Smt.Umadevi and Sri G.Sasidhar are wife and husband as informed by Smt.G.Umadevi as she had filed suit only for maintenance and not for grant of any divorce. In the meantime, a legal notice dated 09.10.2019 on behalf of Smt.Umadevi claiming for death benefits and other benefits to herself and her children, since they are not legally separated and another legal notice dated 25.10.2019 on behalf of G.Kalyanai on the status of claiming as a second wife of the deceased employee, claiming for the same death benefits was received. The Railway administration has to pay the death benefits only to the correct legal heirs as per the extant rules. Since the case turned as rival claim, both Smt.G.Umadevi and Smt.G.Kalyani have been advised vide letter dated 07.11.2019 to approach the competent Court of law for a declaratory decree duly impleading each other and the Railway administration, and submit the same for taking further necessary action by the Railway administration.
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21. The respondents have further submitted that as the marriage purported to have been performed between the applicant and late Sri G.Sasidhar, has no sanctity in the eye of law, the question of treating the applicant as a surviving widow of the deceased employee, does not arise for the purpose of payment of pensionary benefits, as per Sub- Rule 12 of Rule 75 of the Railway Services (Pension) Rules, 1993. In terms of Rule 75 of Railway Services (Pension) Rules, 1993, consequent on the death of any Railway employee, the death benefits such as family pension, DCRG, PF and GIS etc., are payable to the eligible family members.
22. The respondents have further submitted that the reliance on the judgments of various Courts on the subject of compassionate grounds appointment, for grant of appointment on compassionate grounds, is not tenable, as the same are not relevant to the instant case.
23. The respondents have, therefore, contended that the prayer of the applicant for compassionate ground appointment and for payment of death benefits is not maintainable under law and the rules, and prayed for dismissal of the OA.
24. The applicant has filed a rejoinder to the reply statement denying the contention of the respondents that the OA is barred by limitation. She has submitted that the impugned order vide letter P a g e | 13 of 18 OA.No.020/102/2023 No.B/P.500/ONR/138/2019, dated 07.11.2019 was passed by the 3rd respondent for obtaining declaratory decree from the competent Court of law, she filed SOP No.01/2020 on the file of the Senior Civil Judge, Vijayawada, for terminal benefits, which is pending for adjudication, therefore, the present OA seeking compassionate appointment is having continuous cause of action within the limitation.
25. The respondents have filed reply to the rejoinder filed by the applicant. They have submitted that the Section 11 has to be read with Section 5 of the Hindu Marriage Act, 1955, and the marriage between the deceased employee and his wife Smt.Umadevi is not dissolved by any competent Court of law and their marriage subsist. Hence, the deceased employee entering into second marriage with the applicant contravenes the condition stipulated at Clause (i) of Section 5 of the Hindu Marriage Act 1955. Thus, the marriage of the applicant with the deceased employee is void, and prayed to dismiss the OA.
26. Heard the learned counsel on both sides and perused the pleadings on record.
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27. The applicant has prayed multiple reliefs i.e., compassionate ground appointment and payment of death benefits of the deceased employee, who died on 15.09.2019. The deceased employee Sri G.Sasidhar, married Uma Devi on 22.12.1989, blessed with two children, but both were living separately without any judicial decree of separation. He married the applicant in 2002 and she also got blessed with two children. The applicant and the first wife both put up claims on the death benefit of the deceased employee. On receipt of rival claims, respondents advised to get „declaratory decree‟ by the competent Court.
28. It is the contention of the applicant that the 1st wife sought relief in her representation only to include her name in the Pension Payment Order (PPO) and Retired Employees Liberalized Health Scheme (RELHS) Card and Complimentary Pass, whereas the applicant is asking for compassionate appointment including PF/Gratuity/Insurance benefit only, therefore, there is no clash of claims, but again she quotes Sub-Rule 12 of Rule 75 of the Railway Services (Pension) Rules 1993 and claims pensionary benefits as her name and her two children names were entered in the family declaration for the Pass and medical ID etc. In the OA also, she initially prayed for compassionate appointment to her first daughter, but later changed the mind and put up request for self compassionate appointment on 07.11.2019.
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29. Respondents have very honestly advised the applicant to obtain declaratory decree from the competent Court of law. SOP No.01/2020 filed by the applicant for adjudication is pending in Senior Civil Judge Court, Vijayawada, for deciding the legal heirs of the deceased employee. Section 11 read with Section 5 of the Hindu Marriage Act 1955 states that the marriage between the deceased employee and his first wife is not dissolved by any competent Court of law and therefore their marriage subsist. Hence, the deceased employee entering into second marriage with the applicant contravenes the condition stipulated at Clause (i) of Section 5 of the Hindu Marriage Act, 1955. Thus, the marriage of the applicant with the deceased employee is void. Section 5(i) of Hindu Marriage Act and Rule 21 of Railway Services (Conduct) Rules 1966 says "No Railway servant shall enter into or contract a marriage with a person having a spouse living and No Railway servant having a spouse living shall enter into or contract a marriage with ay person".
30. Railway Servants (Pass) Rules 1986 (1993 edition) did not stipulate that second wife and her children can be given Railway pass and other Railway benefits, when the first wife is alive and first marriage is in subsistence and children from 1st wife are alive.
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31. As per RBE No.218/2019, children born to second wife may be considered for compassionate ground appointment only after ascertaining that there is no objection from the first wife or her children and if first wife opts for compassionate ground appointment either for herself or one of her own children, such claim will have priority over any competing claim made by the second wife and her children
32. The Hon‟ble Apex Court in its judgment in Shri Umesh Kumar Nagpal v. State of Haryana & Others, (JT 1994 (3) 525/1994 (4) SCC
138) has held as follows:
"As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and met-it. No other mode of appointment nor any other consideration is Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the P a g e | 17 of 18 OA.No.020/102/2023 provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The consideration for such employment is not a vested right."
33. In the present case, no „NOC‟ is obtained or given by either the first wife or her children in favour of the applicant. The applicant is also confused. While carrying out the amendment, she omitted the second applicant, her daughter, who is just 17 years old, an underage for the compassionate appointment etc.,.
34. It is a fact that the Railway administration has to pay the death benefits to the correct legal heir. Therefore, getting the declaratory decree is essential for upholding the truth and justice. Therefore, there is no merit in the OA and the same is liable for dismissal.
35. The OA is, therefore, dismissed being devoid of merits. There shall be no order as to costs.
( SHALINI MISRA ) ADMINISTRATIVE MEMBER Dsn.
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