Compassionate appointments must not discriminate based on descent, as exclusion violates Articles 14 and 16 of the Constitution.

ORDER

Heard Shri R.K. Dwivedi, learned counsel for the applicant and Shri Atul Kumar Shahi, learned counsel for the respondents at the time of hearing of the case.

2. This Original Application under section 19 of the Administrative Tribunal Act , 1985 has been filed for the following reliefs:

“(i) To issue an order or direction for quashing the impugned order dated 12.01.2018 passed by respondent-2.

(ii) To issue an order or direction, directing the appointing Authority to appoint the applicant on the post in place of his father under compassionate grounds for which he is fully entitled.

(iii) Pass such other or further order which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case.

(iv) Award costs to the applicant.”

3. The case of the applicant lies in a narrow compass that the father of the applicant namely Suresh Chandra, while working as Safaiwala under respondents, died in harness on 28.06.2009. After the death, all the death cum retiral benefits as well as family pension was released in favour of the applicant’s mother. Subsequently, the applicant applied for appointment on compassionate ground, but the same was rejected vide order dated 27.03.2012.

3.1 Aggrieved by the same, the applicant preferred an Original Application No.1108/2012 before this Tribunal and vide order dated 30.11.2017, this Tribunal disposed of the said O.A with a direction upon the application to file a detailed representation, which shall be decided by the competent Authority, within a period of three months.

3.2 In view thereof, the applicant represented before the respondents on 13.12.2017, but the respondent-2 vide order dated 12.01.2018 rejected the case of the applicant for appointment on compassionate ground. The order dated 12.01.2018 is impugned in this Original Application.

4. Per contra, counter affidavit has been filed from the side of the respondents on 04.12.2020, wherein it is stated that after the death of employee, the mother of the applicant requested for appointment on compassionate ground in favour of applicant along with requisite document. Thereafter, it was came to know that it is the case of two living wives and on account of dispute between two wives, the amount of gratuity has been withheld. The first legally wedded wife of deceased employee was Smt. Phoomati Devi and decree of divorce between them was passed on 10.05.2001. The mother of the applicant married with deceased employee prior to 1991 as the applicant born out of their bed lock on 15.02.1991, which shows that second marriage of deceased employee and mother of the applicant namely Smt. Nanhi Devi solemnized during life time of legally wedded wife and as such, the marriage of applicant’s mother becomes null and void under Section 5 (1) read with Section 11 of the Hindu Marriage Act , 1995.

4.1 As per Railway Board Circular Nos.E (NG)II/91/RC-1/136 dated 02.01.1992, Railway Board Circular dated 03.04.2013 and para 16.0 of enclosure of GM (P) Gorakhpur Letter No.E/239/0/Bhag-V/5 dated 28.02.2017, the wards of Second wife of deceased Railway Employee are not entitled to be considered for appointment under Dying in harness Rules where two living wife are there.

4.2 Based on the judgment passed by the Jharkhand High Court in Writ Petition No.4461/2008, 4495/2008 and 1083/2010, the Railway Board issued Circular No.E(NG)II/2018/RC-1/5, New Delhi dated 21.03.2018 in supersession of all previous RBO on subject, wherein if the Railway Servant left with sons/daughter, who has been treated as legitimate or deemed to be legitimate under Section 16 of Hindu Marriage Act , 1055 neither widow can nominate them as bread winner for grant of compassionate appointment nor such sons/ daughters can claim for such appointment. Hence, this Original Application is liable to be dismissed.

5. Rejoinder to the said counter affidavit has been filed on 07.01.2021 reiterating the same averment as taken in the Original Application.

6. The learned counsel for the applicant