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Judgment
Delivered by Hon’ble Mr. Rajnish Kumar Rai, Member (Judicial)
Shri L.M. Singh assisted by Shri M.K. Yadav, counsel for the applicant and Shri S.C. Mishra, counsel for the respondents are present and heard.
This O.A. has been filed by the applicant for quashing the order dated 22.12.2021 vide which the compassionate appointment in the case of applicant No. 2 has been rejected on the ground that the applicant cannot get the benefit of R.B.E. No. 218/2019 dated 30.12.2019 as the employee died prior to issue of that R.B.E. i.e. on 12.12.2014. This O.A. has been filed for the following relief(s): -
“(i)The Hon’ble Court may graciously be pleased to quash the impugned order dated 22.12.2021 passed by Respondent No. 3 (Annexure No. 1) and direct the Respondents to consider the case of the Applicant for compassionate ground appointment.
(ii)The Hon’ble Court may further be pleased to pass such other and further order which may be deemed fit and proper in the circumstances of the case.
(iii)Allow the Original Application with cost.”
The case of the applicant is that the deceased employee Late Siya Ram was working as a Loco Pilot and died on 12.12.2014 leaving behind two minor sons and widow namely Savitri. It is pleaded that at the time of death of husband of applicant No. 1, the applicant No. 2 was minor and applicant No. 1 is getting family pension on account of death of her husband. The family passes and other facilities were provided by the Railway Administration in favour of applicants. Earlier, the applicant has moved O.A. No. 665/2021 for direction to the respondents to take a decision on the pending representation dated 09.01.2020 for compassionate appointment in favour of applicant No. 2. The said O.A. was decided on 07.09.2021 and in pursuance thereto, the impugned order dated 22.12.2021 has been passed rejecting the claim of applicant only on the ground that the R.B.E. No. 218/2019 is not applicable in the case of applicant as deceased employee died on 12.12.2014. Therefore, Sunil Kumar – applicant No. 2 is not entitled for consideration of compassionate appointment. The submission of counsel for applicant is that the issue with regard to consideration of ward of second wife even that borne by one marriage is entitled to considered for compassionate appointment and that issue has been settled by the Hon’ble Supreme Court in the case of ‘Rameshwari Devi V. State of Bihar and others, decided on 27.01.2000’ which is still hold good and relied upon by various Courts. Moreover, the issue with regard to consideration of a ward of second wife has also been decided by the Hon’ble Supreme Court in the case of ‘Union of India V. V.R. Tripathi Civil Appeal No. 12015 of 2018 decided on 11.12.2018 vide which the Hon’ble Apex Court upheld the consideration of son/ward of second wife for compassionate appointment. In such a situation, the respondents cannot take plea that R.B.E. No. 218/2019 is applicable prospectively. He further placed reliance on para-3 of R.B.E. No. 08/2026 wherein the Railway Administration has clearly clarified that the case cannot be rejected merely on the ground that the cause of action arose before 11.12.2018 i.e. prior to Judgment of V.R. Tripathi (supra). Therefore, counsel for the applicant submitted that the impugned order has to be quashed and the respondents may be directed to consider the case of applicant No. 2 for compassionate appointment.
The respondents have filed the counter reply and submitted that the deceased has earlier married with Smt. Chanda Devi urf Rama Kanti and out of that wedlock two sons namely Brajesh Kumar and Avinash Kumar and one daughter Pooja Kumari were born. It is further pleaded by the respondents that his wife Chanda Devi left the deceased employee and started living with another railway employee namely Ramesh Chandra S/o Pooran Lal and still living with that employee. Counsel for the respondents further submitted that the marriage so solemnized with applicant No. 1 is not in accordance with rules as there is no divorce deed available regarding divorce to his wife namely Chanda Devi. He has also taken plea that the son of first wife Avnish Kumar has also requested for compassionate appointment and the case of applicant is rejected in pursuance to the Railway Guidelines in RBE No. 218/2019 vide which RBE No. 218/2019 will be applicable only in those case in which applicant expired after the death of issuing R.B.E. i.e. 30.12.2019 and in the instant case, the deceased employee was died on 12.12.2014, therefore, the case of applicant was rejected.
Heard, counsel for the parties and perused the available record.
From the records, it is not disputed that the applicant No. 1 is getting family pension and railway privilege pass has also been issued in favour of applicant No. 1 on 07.01.2021. I have perused the R.B.E. No. 218/2019 and the relevant portion of the same is quoted herein below: -
“3.The matter has, therefore, been reviewed by Board in view of above Judicial pronouncements considering also the views of the Central Agency Section of the Ministry of Law & Justice. In partial supersession of Board's Circular No. E(NG)II/91/RC-1/136 dated 02.01.1992 (RBE No. 1/1992) referred to, it has now been decided that children born to the second wife may also be considered for compassionate appointment even where the second marriage has not been specifically permitted by the administration. However since compassionate appointment after demise of the Railway employee can be considered for granting to only one dependent family member on merits, a child born to the second wife can be considered for such appointment only after ascertaining that there is no objection to this from the first wife or her children. Where the first wife (legally wedded wife) opts for such compassionate appointment either for herself or one of her own children, such claim will have priority over any competing claim made by the second wife for any of her children.”
From perusal of impugned order, the only ground of rejection is that the R.B.E. No. 218/2019 is not applicable in the case of applicant as death of deceased employee was on 12.12.2014. However, the said issue has been clarified by the Railway Board vide its R.B.E. No. 08/2026 and the relevant portion of the same is quoted herein below: -
“No. E(NG)II/2023/RC-1/1/CR New Delhi, dated: 21.01.2026 The General Manager (P), All Zonal Railways/Production Units (As standard mailing list) Sub: Compassionate Ground Appointment (CGA) - cases of children born to second wife of deceased railway employee. Attention is invited to Board's letter No.E(NG)II/2016/RC-1/CR/12(Pt) dated 30.12.2019 (RBE No.218/2019) in terms of which appointment on compassionate ground of children born to second wife of deceased employee could be considered, subject to the conditions stipulated therein. As further clarified vide Board's letter of even number and 02.11.2023 (RBE No.120/2023), above instructions were effective from 11.12.2018 i.e. the date of judgment of Hon'ble Supreme Court in the matter of V. R. Tripathi v. Union of India.
2.It has come to the notice of the Board that some of the Railways have not interpreted the directions in true spirits of instructions vide RBE 218/2019 read with RBE 120/2023, particularly about the date of effect of eligibility of children born to second wife, and the powers of the competent authorities available to condone delay for consideration of an application in compassionate appointment cases. This has resulted in many avoidable adverse legal decisions.
3.In order to align the understanding of concerned Railways, it is clarified that all applications of children born to second wives claiming compassionate appointment in Railways received after 11/12/2018 are to be considered and decided on merits of each case and should not be rejected merely on the grounds that the cause of action arose before 11/12/2018. Also, instructions exist to decide delayed applications in compassionate appointment claims depending on the merits of an individual case. The Railways are therefore, advised to take necessary action accordingly in the matter of deciding such claims.”
In the above quoted R.B.E., the Railway Board has clearly given the emphasis of Judgment of Hon’ble Supreme Court in the case of V.R. Tripathi V. Union of India. In the aforesaid Judgment, the Hon’ble Supreme Court has also taken note of a Judgment of Rameshwari Devi V. State of Bihar (supra) while adjudicating the entitlement of son of second wife for consideration of case of compassionate appointment.
In view of settled position, the rejection of compassionate appointment for ward of second wife on various technical grounds cannot be appreciated even though said issue has already been taken by the Railway Board while issuing R.B.E. No. 08/2026. In such a situation, I am in opinion to allow this O.A.
In view of the above, the O.A. is allowed and the impugned order dated 22.12.2021 is quashed and set aside. The respondents are directed to consider the case of applicant No. 2 for compassionate appointment after completing the necessary formalities, as required for consideration of compassionate appointment. The aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this Order. The decision taken by the respondents shall be communicated to the applicants forthwith. No order as to cost. All the pending MAs shall be deemed to have been disposed of.