Dr. S.N. Pathak, J.

By Order dated 22.07.2016, this matter was referred to the Larger Bench to consider and decide the following issue:

"Whether the Union of India/Railway Board can use Circular No. 1 of 1992, dated 2nd January, 1992 arising out of Rule 21 of Railway Service (Conduct) Rules, 1966 in similar matters, after it being quashed by Hon'ble Calcutta High Court in the case of Smt. Namita Goldar & Another v. Union of India & Ors. (supra) and that too said decision of Hon'ble Calcutta High Court has neither been challenged by the Union of India/Railway Board before the Apex Court nor any further circular has ever been notified after the Judgment of the Calcutta High Court."

2. The factual matrix of the case is that Law Kumar Prasad (father of the respondent no. 1) died in harness on 28.01.2007 leaving behind his old mother, two wives namely Smt. Premlata Devi (1st wife) and Smt. Pratima Prasad (Devi) [2nd wife], two sons and one daughter. At the relevant point of time, deceased-father of the respondent no. 1 was working as Chief Office Superintendent at Carriage & Wagon Depot, Barwadih under East Central Railway. The 1st wife of the deceased did not have any issue and she is a mentally retarded lady with 50% disability. After death of Law Kumar Prasad, his 2nd wife applied for payment of death-cum-retirement dues of her husband. Thereupon vide letter dated 20.08.2008, said Smt. Pratima Devi (2nd wife of deceased) was asked to produce affidavit sworn in before an Executive Magistrate stating therein that her husband married twice in his life time and that his first wife suffering from mental disease. She was also asked to produce Guardianship Certificate of first wife issued by a competent Court of law alongwith proof of her mental disease. She was also asked to inform about dates of first and second marriage. Thereupon, said Smt. Pratima Devi filed an application before the District Judge, Latehar under section 52 of the Mental Health Act, 1987 vide Civil Miscellaneous Case No. 01 of 2009 for appointment as guardian and manager of the Estate of Smt. Premlata Devi, widow of Late Law Kumar Prasad. After appearance of the parties, the Sessions Judge, Latehar appointed Smt. Pratima Devi as guardian and manager of the Estate of Smt. Premlata Devi. Thereafter, death-cum-retiral benefits were paid to her and deposited in the bank and she is also getting pension regularly.

3. The respondent no. 1 being eldest son of the deceased employee submitted an application alongwith his educational certificate followed by various representations for his appointment on compassionate ground. However, vide letter dated 14.05.2010 he was informed about the decision of the competent authority as communicated vide letter no. GM(P), ECR, Hajipur, dated 04.05.2010 and thereby rejected claim of respondent no. 1 for appointment on compassionate ground on the basis of Railway Board's Circular No. No. 1 of 1992 specifying that appointment on compassionate grounds to the second widow and her children could not be considered unless the second marriage was with the permission of the administration taking into account the special circumstances and personal law etc. (Annexure 1/A) giving rise to O.A. No. 212 of 2011 (R).

4. It was case of the respondent no. 1 in O.A. No. 212 of 2011 (R) that the rejection order communicated vide letter dated 14.05.2010 is illegal, improper and has been passed on extraneous consideration without application of mind. It was further contended that there was sufficient ground of second marriage and the name of second wife of the deceased was duly recorded in the service record and no objection has been ever raised from any corner and as such, this issue could not have been raised after death of the employee. It was further contended that the Railway Circular No. 1/1992 is not applicable in the case of the respondent no. 1 because the administration had never objected entry of name of the second wife in service excerpts of