Patna High Court
The Union Of India & Ors vs Deepk Kumar Rai on 24 January, 2017
Bench: Anjana Mishra, Sudhir Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.163 of 2006
Arising out of
Civil Writ Jurisdiction Case No. 338 of 2003
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1. The Union of India through Secretary, Ministry of Railways, Rail Bhawan, New
Delhi.
2. The General Manager, Eastern Railway, Farely Place, Netaji Subhash Road,
Kolkata.
3. The Divisional Manager, Eastern Railway, Asansol.
4. The Divisional Manager, E.C. Railway, Danapur
5. The Senior Divisional Personnel Officer, Eastern Railway, Asansol.
6. The Inspector General, Eastern Railway, Kolkata.
7. The Chief Security Officer, Eastern Railway, Kolkata.
.... .... Appellant/s
Versus
Sanjay Kumar, son of Late Raghubir Singh Arya, Resident of Village- Karnauti,
P.S.- Bakhtiyarpur, District- Patna.
.... .... Respondent/s
with
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Civil Review No. 375 of 2012
Arising out of
Civil Writ Jurisdiction Case No. 5815 of 2011
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1. The Union of India through the General Manager, E.C. Railway, Hajipur at &
P.O. Hajipur, District- Vaishali.
2. The Divisional Railway Manager, Samastipur Division, E.C. Railway,
Samastipur.
3. The Divisional Railway Manager (Personnel), Samastipur Division, E.C.
Railway, Samastipur
4. The Senior Section Engineer (Loco), Narkatiaganj, E.C. Railway, Narkatiaganj.
.... .... Petitioner/s
Versus
Deepak Kumar Rai, son of Late Shri Tilkeshwar, Resident of Village- Chand Dhaur
Kalyan Toli, P.S. Janakpur, P.S. Ujiarpur, District- Samastipur.
.... .... Respondent/s
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Appearance :
(In LPA No.163 of 2006)
For the Appellant/s : Mr. D.K. Sinha, Sr. Advocate
Mr. Anil Singh, Advocate
For the Respondent/s : Mr. R.C. Sinha, Advocate
Mr. Sanjeev Kumar Singh, Advocate
(In CIVIL REVIEW No.375 of 2012)
For the Petitioner/s : Mr. D.K. Sinha, Sr. Advocate
Mr. Bijay Kumar Sinha, Advocate
For the Respondent/s : Mr. Rakesh Kumar, Advocate
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Patna High Court LPA No.163 of 2006 dt.24-01-2017
2/11
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
and
HONOURABLE MR. JUSTICE SUDHIR SINGH
ORAL JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE) Date: 24-01-2017 Heard learned counsel for the parties.
2. The matter has been placed before this Bench in terms of an order passed by a Division Bench of this Court on 14th of July, 2014 doubting the correctness of Division Bench judgment of this Court passed in C.W.J.C. No. 2592 of 2007 (Union of India through the General Manager, Eastern Railway and others Vs. Uma Devi) on 22nd of April, 2010 wherein, it was held that the children born out of second wife without permission of the Railway authorities are not entitled to seek compassionate appointment in terms of the circular issued by the Railways on 24th of January, 1992.
3. The brief facts leading to the present reference to the larger Bench is that writ-applicant invoked the writ jurisdiction of this Court claiming appointment on compassionate grounds after death of his father on 18th of March, 1991. The application for appointment on compassionate grounds was filed on 7th of April, 1992 after he attained majority. The learned Single Bench allowed the writ application for the reason that his application could not be rejected simply on the ground that he is son from the second wife of Patna High Court LPA No.163 of 2006 dt.24-01-2017 3/11 the deceased.
4. In appeal, the appellants relied upon an order of the Division Bench of this Court in Uma Devi's case (supra) to contend that the compassionate appointment can be sought and granted only in terms of the policies framed from time to time. Since the policy dated 24th of January, 1992 specifically excludes the compassionate appointment to the second widow and her children, therefore, the writ-applicant would not be entitled to compassionate appointment, even if he is treated to be legitimate child for the purposes of Hindu Marriage Act, 1955 or Hindu Succession Act, 1956. The relevant circular reads as under :-
"Sub: Appointment of compassionate grounds-cases of second widow and her wards.
1. It is clarified that in the case of railway employees dying in harness etc. leaving more than one widow along with children born to the 2nd 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 are not to be considered unless the administration has permitted the second marriage, in special circumstances, taking into account the personal law etc.
2. The fact that the second marriage is not permissible is invariably 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 need not be forwarded to Railway Board.
4. Kindly acknowledge receipt."
Patna High Court LPA No.163 of 2006 dt.24-01-2017 4/11
5. Apart from the aforesaid judgment, the learned counsel for the appellants relies upon Division Bench judgment of this Court passed in C.W.J.C. No. 19743 of 2012 (The Union of India & Ors. Vs. Binda Devi) decided on 2nd of May, 2013 as well as Division Bench judgment of this Court reported as The Union of India through the General Manager, East Central Railway & Ors. Vs. Most. Uma Devi & Ors., 2015 (1) PLJR 945.
6. On the other hand, learned counsel for the writ- applicant submitted that the first wife has given no objection for the appointment of the writ-applicant on compassionate grounds, therefore, the circular, as relied upon by the appellants, would not be applicable.
7. We have heard learned counsel for the parties and find that right to seek compassionate appointment emanates from the policy of the employer. In the absence of policy of compassionate appointment, there is no inherent right with the family members of the deceased to seek compassionate appointment. If the policy of compassionate appointment does not permit the second wife and/or her children for appointment on compassionate grounds, this Court on the basis of right of inheritance will not confer the right to seek compassionate appointment. It is so held in judgment reported as LIC v. Asha Ramchhandra Ambekar, (1994) 2 SCC 718. The Court Patna High Court LPA No.163 of 2006 dt.24-01-2017 5/11 held as under:-
"10. Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. No doubt Shakespeare said in "Merchant of Venice":
"The quality of mercy is not strain'd;
It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless'd;
It blesseth him that gives, and him that takes;"
These words will not apply to all situations. Yeilding to instinct will tend to ignore the cold logic of law. It should be remembered that "law is the embodiment of all Wisdom". Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may be.
xxx xxx xxx
17. Thus, apart from the direction as to appointment on compassionate grounds being against statutory provisions, such direction does not take note of this fact......" In a judgment reported as State Bank of India and others v. Jaspal Kaur, (2007) 9 SCC 571, the Hon'ble Supreme Court held that the Court cannot order appointment on compassionate grounds, de hors the provisions of the statutory regulations and instructions. It held as under:
"13. The learned Senior Counsel also made the following submissions:
It is well established that the High Court, while exercising jurisdiction under Article 226 of the Constitution of India, does Patna High Court LPA No.163 of 2006 dt.24-01-2017 6/11 not act as a court of appeal.
The High Court failed to appreciate that Clause (1) of the scheme provides that in order to determine the financial condition of the family, the amounts paid towards terminal benefits, investments, income from other sources and size of the family, etc. are required to be taken into account. However, in the present case while holding that the condition of the family is not sufficient for the bare maintenance of the family, the High Court has failed to appreciate that the monthly income of Rs 2055 p.m. and the terminal benefits of Rs 4,57,607 have been paid to the family of the deceased.
The High Court also failed to appreciate a well-settled principle of law laid down by this Court in LIC of India v. Asha Ramchhandra Ambekar (1994) 2 SCC 718 that the Court cannot order appointment on compassionate ground, dehors the provisions of the statutory regulations and instructions and that hardship of the candidate does not entitle him to compassionate appointment dehors the statutory provisions.
The High Court also failed to appreciate that the appointment under the scheme of compassionate appointment was at the discretion of the authority which was to be exercised keeping in view the scheme and the object/rationale behind it. It was submitted that compassionate appointment cannot be claimed as a matter of right. Moreover, the public office is not heritable.
The High Court failed to appreciate the ratio in G.M. (D&PB) v. Kunti Tiwary (2004) 7 SCC 271 where it was held that the criteria of penury has to be applied and only in cases where the condition of the family is "without any means of livelihood" and "living hand to mouth" that compassionate appointment was required to be granted.
In another judgment reported as V. Sivamurthy v. State of Andhra Pradesh and others, (2008) 13 SCC 730, the Court held that Patna High Court LPA No.163 of 2006 dt.24-01-2017 7/11 Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies. It was held as under:-
"18. The principles relating to compassionate appointments may be summarised thus:
(a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-
recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.
(b) Two well-recognised contingencies which are carved out as exceptions to the general rule are:
(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.
(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner.
Another contingency, though less recognised, is where landholders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project-affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation).
(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance Patna High Court LPA No.163 of 2006 dt.24-01-2017 8/11 with the scheme governing such appointments and against existing vacancies.
(d) Compassionate appointments are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts". (Emphasis supplied)
8. In view of the judgments referred to above, we do not find that the view taken by the Division Bench in Uma Devi's case (supra), later in Binda Devi's case require any reconsideration.
9. Before parting with the order, we must observe that a Division Bench in a judgment reported as The Union of India through the General Manager, East Central Railway & Ors. Vs. Most. Uma Devi & Ors., 2015 (1) PLJR 945 has observed that if a Bench of co-equal jurisdiction is unable to persuade itself to be in agreement with a judgment cited before it, it can certainly render its own judgment, however, it cannot refer the matter to a Bench of larger size. The relevant extract from the said judgment reads as under:-
"9. It is no doubt true that recently one Division Bench expressed doubt about the correctness of the judgment of this Court in Uma Devi's case and referred the matter to the Full Bench. We are of the view that the reference itself is not warranted. If a Bench of co-equal jurisdiction is unable to persuade itself to be in agreement with a judgment cited before it, it can Patna High Court LPA No.163 of 2006 dt.24-01-2017 9/11 certainly render its own judgment. However, it cannot refer the matter to a Bench of larger size. It is only when a learned Judge or a Bench come across two conflicting judgments rendered by the benches of same strength that an observation can be made, as to be feasibility of referring the matter to a Bench of larger size to resolve the conflict leaving the matter to the Chief Justice. That is not the case here."
10. We find that such observations are not tenable and are against the judicial propriety which mandates a Bench of co- equal strength to be bound by the earlier judgment. If the Division Bench is not agreeing with the earlier Division Bench, the only course available is to refer it to the larger Bench but not to give itself a different view other than the view taken by the earlier Division Bench. We may refer to a judgment reported as Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694 wherein, the Court held as under:-
"138. The analysis of English and Indian law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of Judges of coequal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three Judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Sibbia case (1980)2 SCC 565 which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 CrPC. Consequently, the judgments mentioned in paras 124 and 125 of this judgment are per incuriam.
Patna High Court LPA No.163 of 2006 dt.24-01-2017 10/11
139. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the Court doubts the correctness of the judgments by two or three Judges, then the proper course would be to request the Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength."
11. We are in disagreement with the view expressed in Paragraph 9 of the order in Most. Uma Devi's case and hold that said finding will not be a binding precedent.
12. In view of the said fact, the Letters Patent Appeal is allowed and the order dated 10th of May, 2004 passed by the learned Single Bench in C.W.J.C. No. 338 of 2003 is set aside and the writ application is dismissed.
Civil Review No. 375 of 2012
The Central Administrative Tribunal allowed the application of Deepak Kumar Rai for appointment on compassionate grounds vide order dated 6th of January, 2011 passed in O.A. No. 239 of 2010. The writ application against the said order was dismissed by the Division Bench of this Court finding that the circular of Railways is not like a law enacted by a Legislature requiring invalidation before grant of relief to the affected person. The circular is merely a policy decision which has not impressed this Court on earlier occasion also as there is no nexus with the purpose at hand for treating differently son of a deceased employee born from the first Patna High Court LPA No.163 of 2006 dt.24-01-2017 11/11 wife with son from second wife.
The perusal of the order does not show that there is reference to the earlier writ petitions which were dismissed. Still further for the view taken in the L.P.A. No. 163 of 2006, we find that the order of the Division Bench is not sustainable. Consequently, the Review Application filed by the Railways is allowed and the order passed in the writ application is set aside.
(Hemant Gupta, ACJ)
(Anjana Mishra, J)
(Sudhir Singh, J)
P.K.P.
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 30.01.2017
Transmission
Date