Central Administrative Tribunal - Hyderabad
Smt. Asmath Begum vs Divisional Railway Manager, Personnel ... on 25 July, 2007
ORDER
P. Lakshmana Reddy, J. (Vice Chairman)
1. Heard Mr. K. Bala Gopal, learned Counsel for the applicant and Ms. Shyama Sundari, Standing Counsel appearing for the respondents.
2. This application is filed by the applicant seeking for compassionate appointment to the applicant on the sad demise of her husband.
The relevant facts in brief are as follows:
3. One Abdul Sattar Baig had been employed in the Indian Railways on 25.12.1990 and while working as Senior Booking Clerk at Vinukonda Railway Station in Guntur Division of South Central Railway, he died on 19.7.2004. The case of the applicant as set out in the application is that late Abdul Sattar Baig originally married one Areefa Begum and later he gave divorce in accordance with the personal law on 29.2.1992 and, thereafter, he married the present applicant in accordance with the Muslim Law on 06.06.1993. Late Abdul Sattar Baig had entered the name of the applicant in his service register as his wife/nominee. The name of the applicant was shown as his nominee in his application for membership of S.C.R. Employees Co-operative Credit Society which was made on 10.7.1993. At the time of marriage, the applicant's name was proposed to be changed to Mallika Begum as her maiden name was found to be astrologically inauspicious for her husband. She was shown as such in the wedding card. However, no formal change of name was effected and she continued to be shown by her original name in the service register and in the nomination forms. The applicant further stated that she had studied up to 7th class and is literate in both Urdu and Telugu. As she was the legally wedded wife and nominee of the deceased and as there is no other dependent of the deceased, she is entitled for compassionate appointment in appropriate cadre as per rules. The 1st respondent in his order dated 09.12.2004 rejected the request of the applicant on the ground that compassionate appointment to second wife and her children is not permissible unless a special permission is given by the administration. The applicant contended in the application that the reason given by the 1st respondent is untenable and illegal as the applicant is the only wife of the deceased and not his second wife and her deceased husband married her after divorcing his first wife in accordance with the law and the special permission referred to by the first respondent is needed only in the case of a second marriage by the deceased during the subsistence of marriage with first wife and not in the case of second marriage after due dissolution of first marriage. It is further stated in the application that late Abdul Sattar Baig got a daughter through his divorced wife and she is also the heir of the husband of the deceased and, therefore the gratuity, P.F., Leave encashment etc., have been divided between the applicant and the said daughter of the deceased. It is further stated that the said daughter of the first wife is not a dependent of the deceased as she was living separately with her mother who had received the payments lawfully due to her on divorce and she also did not make any request for compassionate appointment. It is further stated that the respondents did not reject the applicant's claim on the ground of rival claim. The reason for rejection is only that the deceased had married the applicant without the permission of the department and, therefore, she is not entitled. Therefore, the applicant has prayed in this application to declare the order passed by the 1st respondent No. GNT/P.Con 563/III/31/2004 dated 09.12.2004 rejecting the applicant's request for compassionate appointment is illegal and, consequently, to set aside the same and to give a direction to the respondents to provide compassionate appointment to the applicant.
4. Respondents have contested the application by filing counter reply wherein they have admitted that late Abdul Sattar Baig joined Railway Service on 25.10.1990 and died on 19.07.2004 while he was working as Senior Booking Clerk at Vinukonda Railway Station. After the death of Abdul Sattar Baig, the applicant herein submitted an application dated 3.08.2004 requesting for providing her appointment on compassionate grounds. The respondents have stated in their reply that an Inspector of the department was deputed to enquire into the case and to submit a report for processing the applicant's case and during the enquiry, it came to light that the applicant herein is the second wife of late Abdul Sattar Baig and he divorced his first wife Smt. Areefa Begum on 29.2.1992 and married the applicant on 06.06.1993. As per the marriage certificate, her name is indicated as Malika Begum. For this name discrepancy, Smt. Asmath Begum, the applicant herein, gave an affidavit that both names pertains to one and the same person. It is further submitted that late Abdul Sattar Baig had a daughter born through his first wife, namely, Kum. Umme Salma, who was minor at that time and whose date of birth is 27.09.1987 and was studying Intermediate second year. The name of Kum. Umme Salma was also included by the Late Abdul Sattar Baig as his Daughter in the family composition declaration, for the purpose of passes etc. during the year, 2000. It is further stated by the respondents that they have received a lawyer notice dated 27.7.2004, which was got issued on behalf of the 1st wife, Smt. Areefa Begum and her daughter, Kum. Umme Salma, to the effect that there are maintenance grant arrears to be paid by Late Abdul Sattar Baig in M.C. No. 11/1989 on the file of 2nd Additional Junior Civil Judge's Court, Baptla and, therefore, the settlement dues of late Abdul Sattar Baig, should not be paid to any person without notice to them. It is further stated in the reply that the settlement dues of late Abdul Sattar Baig were distributed between Smt. Asmath Begum, the second wife, and Kum. Umme Salma, the daughter of the 1st wife.
5. Regarding the rejection of the application of the applicant, it is stated in the reply that in terms of the instructions issued by the Railway Board vide letter No. E(NG)11/91/RC-1/136 dated 02.1.1992 circulated as Serial Circular No. 05/92 by the Chief Personnel Officer, S.C. Railway, that in 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, appointment on compassionate Grounds to the second widow and her children are not to be considered unless the administration had permitted the second marriage, in special circumstances, taking into account the personal law etc and the fact that the second marriage is not permissible is invariably clarified in terms and conditions advised in the offer of initial appointment. It is further pleaded that the daughter of the first wife is very much alive and is the rightful claimant for appointment on compassionate grounds in terms of the instructions issued by the Railway Board mentioned above and since no permission was obtained for the second marriage by late Abdul Sattar Baig with the applicant, Smt. Asmath Begum, the claim of the applicant, Viz. Smt. Asmath Begum for appointment on compassionate grounds is not permitted and, therefore the request of the applicant was rightly rejected. It has been further stated by the respondents that since the daughter of the first wife, Kum. Umme Salma, is the only rightful claimant for appointment on Compassionate grounds and she may turn up later at any time requesting for appointment on compassionate grounds and, therefore the contention of the applicant that she is the only dependent of late Abdul Sattar Baig and solely entitled for appointment on compassionate grounds are not tenable. Respondents have pleaded that the present O.A. is devoid of merits and, hence, the same is liable to be dismissed.
6. During the course of hearing, the learned Counsel for the applicant reiterated the contentions made in the application. He submitted that as seen from the reply statement, the respondents themselves have admitted that late Abdul Sattar Baig had given divorce to his first wife, Smt. Areefa Begum on 29.2.1992 and, only thereafter, he married the applicant on 06.06.1993 and, therefore, the question of applicability of the Serial Circular No. 05/92 in this case does not arise as the applicant cannot be called as second widow and that she is the only widow surviving the deceased besides the daughter born through the divorced wife and that in case where the widow and daughter survives the deceased, the widow shall be given preference to the daughter in case of compassionate appointment for the reason that the moment the daughter gets married, she will go to the house of her husband and becomes the member of the family of the husband and she will no longer be the member of the family of the deceased and that compassionate appointment is intended to give the benefit to the family of the deceased and not to some other's family. The daughter is the legal heir along with the widow and that is the reason why the estate of deceased is distributed into two equal shares viz. the benefits were shared between both the applicant and the daughter born through the divorced wife. The daughter in this case did not make any claim for appointment on compassionate grounds. Even if she makes any claim, she is not entitled for compassionate appointment in preference to the widow of the deceased.
7. On the other hand, the Learned Standing counsel appearing for the respondents vehemently opposed and contended that the Serial Circular No. 05/92 is applicable as the deceased did not obtain permission of the department for the second marriage and, therefore, neither the widow nor her children are entitled for compassionate appointment as per the said Serial Circular No. 5/92 and that the applicant herein is the second widow. She further contended that the daughter born through the divorced wife is only the eligible claimant for compassionate appointment and the applicant herein is not entitled for the compassionate appointment.
8. The points that arise for my consideration herein are as follows:
i) whether the applicant herein can be called as second widow for the purpose of Serial Circular No. 05/92?
ii) Whether the daughter of the deceased is to be given preference than to the widow of the deceased for compassionate appointment?
iii) Whether the impugned order of rejection is sustainable in law?
Points 1 to 3:
9. As seen from para -3 of the reply filed by the respondents, it has been clearly admitted that late Abdul Sattar Baig divorced his first wife, Smt. Areefa Begum on 29.2.1992 and married the applicant on 06.06.1993. Therefore, it is clear that the relationship of husband and wife between Smt. Areefa Begum and late Abdul Sattar Baig had been duly severed on and from 29.2.1992. As the respondents admitted in their counter that late Abdul Sattar Baig married the applicant on 06.06.1993, on the date of marriage of the applicant, there was no wife for late Abdul Sattar Baig and, therefore, the applicant cannot be treated in law as the second wife. After 06.06.1993, late Abdul Sattar Baig had only one wife i.e. the applicant herein. Similarly, as on the date of death of the deceased, the applicant was the only wife and, therefore, she alone can be called as widow, and Smt. Areefa Begum to whom, deceased had given divorce in accordance with law, cannot be called as widow of late Abdul Sattar Baig. The only widow surviving the deceased is the present applicant. The Serial Circular No. 05/92 is applicable only in respect of employee contracting the second marriage during the subsistence of the first marriage and only in such cases the permission is required from the department. In case an employee intends to marry again after giving divorce in accordance with law, he need not take permission of the respondents before contracting the marriage again. The marriage of the applicant with Abdul Sttar Baig cannot be called as second marriage in order to attract the Serial Circular No. 05/92. Therefore, in my considered view, the Serial Circular No. 05/92 is not applicable to the facts of this case and, therefore, the reason given for rejection of the application of the applicant is not at all tenable.
10. The other objection raised by the respondents in the reply is that there is a daughter born through the divorced wife, Smt. Areefa Begum and she is alone entitled to the claim of appointment. The standing counsel could not show any authority to the effect, that in the event of death of an employee while in service leaving the widow and the daughter, the widow shall be given preference to the daughter. The very object of compassionate appointment is to see that the family of the deceased shall not be in the streets for their sustenance. The moment daughter gets married, she will go to the family of her husband and after her marriage, she will not be the member of the family of the deceased. When the widow is eligible for appointment and she makes a claim, her claim is to be considered in preference to the daughter and only in case when the widow is not eligible or not willing to take up appointment, then alone the claim of the daughter, if any, can be considered, subject to certain conditions to be imposed on the daughter to maintain the family of deceased. In fact, in the instant case, the daughter of the deceased did not make any claim for appointment. As she was also the legal heir of the deceased, the applicant herein and the daughter of the deceased took half share each in the death benefits and she is satisfied with that and she did not make any claim for appointment on compassionate grounds. Even if she makes any claim, she is not entitled in preference to the widow of the deceased. Therefore, I find no force in the contentions raised on behalf of the respondents. On the other hand, I find force in the contentions raised by the learned Counsel for the applicant. Hence, all these points are found in favour of the applicant and against the respondents.
11. In the result, the O.A. is allowed declaring that the rejection order passed on the application of the applicant is not sustainable in law and, therefore the same is quashed and set aside. The respondents are directed to consider the application of the applicant for compassionate appointment, if she is otherwise eligible.
12. With the above direction, the O.A. is allowed. However, there shall be no order as to costs.