Asad Hussain vs Union Of India & Ors.

This Original Application is filed under section 19 of the Central Administrative Tribunal Act, 1985 seeking relief to quash the impugned order dated 28.10.2013 passed by respondent no. 3, rejecting the claim of the applicant for grant of an appointment on compassionate ground under Dying- in-Harness rules and to issue a suitable direction to the respondents authorities to consider the claim of the applicant for grant of an appointment on compassionate ground. Prayer has also been made to issue a direction to the respondents to decide the pending representation of the applicant within stipulated period and to issue an order which this Tribunal may deem fit and also award costs.

The facts of the case is that the father of the applicant was working on the post of TTE-A under the respondent department and died on 10.11.2008 leaving behind the applicant as well as other brother and sisters and mother of the applicant has already died in the year 2006 prior to the death of the father. Hence, the pension were allowed to the minor daughter of the deceased employee i.e. elder sister of the applicant namely Aashi. The deceased father of the applicant had already married with Smt. Sayara Khatoon prior to entering the Railway Service and out of their wedlock, twin sons were born namely Zakir Hussain and Shakir Hussain. However, later on, divorce happened between deceased father of the applicant and Smt. Sayara Khatoon on 25.05.1969 and talaknama was executed between the parties and, subsequently, Smt. Sayara Khatoon proceeded to remarry with one Shri Zamal Ahmad and deceased father proceeded to remarry with the mother of the applicant Smt. Shammi Shaheen. There is no dispute about the talaknama and the remarriage and in 1974, the father of the applicant entered in the Railway Service through direct recruitment and in the service record, the name of mother of the applicant namely Shammi Shaheen has been entered as the sole wife of the deceased employee. The twins which were born from the first wife of the deceased employee were residing separately with her mother and out of which, the elder son namely Zakir Hussain has already died on 11.10.2013 and he never claimed for any compassionate appointment and the second son Shakir Hussain has also submitted an affidavit stating therein he has no objection if the railway department offer an appointment on compassionate ground in favour of the applicant under the Dying-in-Harness Rules vide his affidavit dated 22.02.2013 and sister of the applicant namely Arshi who received family pension also submitted one affidavit in favour of the applicant and first wife of the deceased Smt. Sayara Khatoon has also submitted an affidavit before the respondent no. 2 stating therein that she has no objection and there is no other claimant except the applicant in respect of grant of compassionate appointment. And although the applicant is the son of second wife but as there was due divorced from the first wife, she is the sole wife and hence, the contention of the respondents in rejecting the claim of the applicant is incorrect and so the Tribunal may quash the impugned order dated 28.10.2013 passed by the respondent no. 3 rejecting the claim of the applicant for grant of appointment on compassionate ground.

The respondents have filed counter affidavit wherein the basic facts of the case is not denied that the father of the applicant Late Wahid Hussain was working as TTE-A in the commercial department of Izzat Nagar division and he died on 10.11.2008 while in service and he had married two wives one was Smt. Shayara Khatoon and another Smt. Shammi Shaheen. First wife has twins Zakir Hussain and Shakir Hussain and the second wife had four children, two male and two female namely Asad Hussain, Shahanshah, Shahbano and Arshi and after the death of the deceased employee, the applicant applied for appointment on compassionate ground and after that Shahanshah Hussain- second son of deceased employee also applied for compassionate appointment and Shakir Hussain, son of late railway employee and later Shayra Khatoon also applied for appointment on compassionate ground. And so on the applications submitted by the applicant who is son of late Wahid Hussain, department issued a letter dated 28.10.2013 in which the applicant was informed that as per established railway rules Sri Shakir Hussain son of late Wahid Hussain and Smt. Shayara Khatoon is fit for appointment on compassionate ground. Later on applicant was informed, by letter dated 30.10.2013, that his application regarding appointment on compassionate ground is not acceptable as per Railway Rules. The Department categorically says that railway employee Late Wahid Hussain had never informed the department regarding his divorce with Smt. Shayara Khatoon and /or remarriage and also he had never informed the department about his Talaknama dated 25.05.1969.The applicant himself has admitted the fact that his mother was second wife of his father Late Wahid Hussain, so, the impugned order dated 28.10.2013 is correct in the light of Railway Board Order 1992 RBE No. 1/92 in which it is clarified that in case where there are more than one widow alongwith children born to second 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. Hence, there is no merit in the case of the applicant and so, the OA should be dismissed.

Rejoinder has been filed on behalf of the applicant wherein he reteirates the fact as in the OA and again vehementally submitted that it is wrong to say that the Railway Administration has conducted any enquiry and found that the Late Wahid Hussain had married with two wives because no finding of any so called enquiry has been enclosed therein, if the enquiry may be conducted by the Railway Administration then it must be found proved that Smt. Sayara Khatoon had already re-married with one Sri Zamal Ahmad in the year 1969 itself and as such neither she can claim any benefit of retiral dues or family pension as per rule, because she had already got married to some another person and that too prior to entering the railway service by the deceased employee. And as the mother of the applicant namely Smt. Shammi Shaheen was sole wife of late Wahid Hussain during his entire service carrier and her name has already been entered in the service record as declared by the deceased employee himself and as such being a son of sole wife of the deceased employee, the applicant is entitled to seek the appointment on compassionate ground. Hence, he says that the contentions of the respondent department should be rejected and his OA should be allowed and relief granted.

Supplementary counter affidavit has been filed by the respondents wherein they reiterate the facts as in the counter reply and they say that they disagree with the facts and interpretation of the applicant and as the son of first wife has already claimed the compassionate appointment, the case of the applicant cannot be considered.

The case came up for final hearing on 31.102023. Shri Vinod Kumar, counsel for the applicant and Shri Vimal Kumar Rai, counsel for the respondents were present and heard.

I have carefully gone through the records and considered the rival contentions.

From the record, it is evident that the fact is not denied that the deceased employee died on 10.11.2008. Since then, more than one and a half decade has passed and the families have sustained and passed the initial phase of shock and death of the bread winner and if I examine the case of Umesh Kumar Nagpal Vs. State of Haryana and others – JT 1994(3) SC 525, Hon’ble Supreme court has clearly held that appointment on compassionate grounds can be considered only if the family is in indigent circumstances and not as a matter of right, which can be executed at any time in future. Hon’ble Supreme Court has laid down following the important principle regarding compassionate appointment:

At present, there is no merit as such in the case over and above that in this particular case, it appears that the deceased had married twice once with Smt. Shayara Khatoon with whom the deceased had two sons-Zakir Hussain and Shakir Hussain. One of the two sons- Shakir Hussain had also applied for compassionate appointment and second wife Smt. Shammi Saheen had two sons and two daughters and out of them both sons as well as mother had applied for compassionate appointment. Now, even if, I believe the version of the applicant that there was a talaknama and there was formal divorce between the deceased employee and the Shayara Khatoon, the relationship of Shakir Hussain as son does not become nullified by the said talaknama or any divorce. His right as a son of first wife for compassionate appointment still survives. Hence, his case cannot be challenged here by the applicant at this stage. If at all any decision has been taken by the respondent department on his application as he is also not party in this OA, those become absolutely irrelevant for the purpose of deciding this OA. But the department’s contention, that Shakir Hussain being the undisputed son of the first wife of Shayara Khattoon whether divorced or not has a right also has a merit. From the very nature of the pleadings as well as affidavits and applications and cross applications filed by different siblings and step siblings and the mother, the applicant has made the compassionate appointment more like his vested civil right rather than something exceptional against the normal constitutional norms of public appointment and employment for extreme cases of penury and situation of extreme hardships and indigency at the time of the deceased sole bread winner of the family died and left the family in distress, and the applicant has failed to show anything on record which substantiates his case about abject penury and with passage of time more than one and half decade after the death at this stage he does not have any meritorious case to interfere with the impugned order of the department and considering the same, I pass following orders:-

The present Original Application is liable to be dismissed and accordingly dismissed.

All associated M.As. stand disposed of accordingly. No order as to cost.