Allahabad High Court
Union Of India And Another vs Ajai Kumar And 2 Others on 11 December, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 20054 of 2019 Petitioner :- Union Of India And Another Respondent :- Ajai Kumar And 2 Others Counsel for Petitioner :- Rajnish Kumar Rai Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. This writ petition has been filed challenging judgment dated 09.8.2019 passed by Tribunal in which issue was, 'whether son of second wife can be said to be illegitimate child not entitled for compassionate appointment on the ground that second marriage is void'.
2. In this regard Railway Board issued a Circular dated 02.01.1992 denying compassionate appointment to such a born from second marriage. Aforesaid Circular was struck down by a Division Bench of Calcutta High Court in Namita Goldar vs. Union of India (2010) 1 Cal.LJ 464 and that was followed by Madras High Court also. Thereagainst Special Leave Petition was dismissed by Supreme Court. Then again in Union of India and Ors. vs. V.R.Tripathi AIR 2019 SC 666, similar issue was raised by petitioners before Supreme Court relying on a similar Circular issued in 2013. Supreme court held that once issue has already been decided, it was not proper on the part of Board to issue said Circular reiterating terms of earlier Circular, which was already struck down by judgment of Supreme Court. Relevant extract of judgment in V.R.Tripathi (supra) reads as under :
"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 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, 1992 even after the decision in Namita Goldar (supra), which attained finality." (emphasis added)
3. Still Railway Board did not mend its ways and issued Circular dated 21.03.2018 reiterating similar principle . This Circular came up before Division Bench of this Court in Writ Petition No.5528 of 2019 (Union of India and 3 others vs. Prakash Saxena). This Court while negativing contention of Railway Board, observed as under :
"It may further be noted that when a particular Circular of the Railway Board on one point has already been held to be illegal by the High Court, another Circular on the same point could not have been issued and, if issued, it has to be ignored.
The Railway Board ought not to have issued repeated Circulars on the same point debarring sons and daughters of the deceased through second wife from seeking compassionate appointment.
In addition to the above, the second marriage of the deceased employee may be illegal or void under the provisions of Hindu Marriage Act. Nonetheless, sons and daughters born through such a wedlock would not be deemed to be illegitimate in view of Section 16 of the Hindu Marriage Act and at the same time would remain to be sons and daughters of the deceased employee and if they are dependant upon him, they would be entitled to the benefit of compassionate appointment.
In view of the aforesaid facts and circumstances, we find no merit in this petition and the same is, accordingly, dismissed."
(emphasis added)
4. Following above, Tribunal has passed judgment in question. Still Railway Board is relying on same Circular, which has already been struck down and strictures was passed not only by Supreme Court and also this Court. This is nothing but sheer disobedience of law laid down by Supreme Court as well as this Court.
5. In our view, petitioners are clearly and apparently in contempt of this Court's judgment dated 11.4.2019 passed in Writ Petition No.5528 of 2019 wherein it has been held that Railway Board ought not to have issued repeated Circulars on the same point debarring sons and daughters of the deceased through second wife from seeking compassionate appointment and any such Circular have to be ignored.
6. Sri Rajnish Kumar Rai, learned counsel for petitioners, at this stage, stated that he will advise petitioners to abide by aforesaid judgments and requested to dismiss this writ petition as not pressed.
7. Initially, we were not inclined since we are of the view that petitioners are clearly in contempt of judgment of this Court, as aforesaid, but considering request and assurance by learned counsel for petitioners that in future similar mistake will not recur, we dismiss the writ petition as not pressed.
8. Ordered accordingly.
Order Date :- 11.12.2019 KA