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Judgment
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, challenging the order dated 21.01.2020 and seeking family pension, compassionate appointment for her son and other consequential reliefs. The reliefs sought by the applicant are as follows:-
“i)Issue a writ, order or direction in the natuure of certiorari by quashing/set aside the impugned order dated 21.01.2020 passed by the Respondent No. 2/Divisional Railway Manager (Personnel), N.E.R. Lucknow.
ii) Issue a writ, order or direction in the nature of mandamus commanding and directing to the respondents to pay the monthly family pension to the applicant and further to pay the arrears of pension along with interest @ 8% from the due date to till the actual payment.
iii) Issue a writ, order or direction in the nature of mandamus commanding and directing to the respondent department to give compassionate appointment to her son.
iv) Issue any other writ, order or direction which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
v)Award cost of the Original application.”
The instant Original Application has been filed by the applicant, Smt. Anita, challenging the order dated 21.01.2020 passed by respondent No. 2, whereby her representation seeking family pension and compassionate appointment for her son was rejected. The applicant is the second wife of Late Rajendra Kumar, a railway employee who died in harness on 23.08.2010. She submits that, following the death of the first wife, Smt. Seema, on 02.03.2014, she obtained a succession certificate dated 13.08.2016 in respect of the deceased employee’s retiral benefits. The applicant submitted representations dated 01.09.2018 and 05.07.2019 seeking family pension and compassionate appointment for her son, Krishna Kumar. As no decision was communicated, she filed O.A. No. 1152 of 2019, which was disposed of on 11.11.2019 with a direction to the competent authority to decide her representation dated 05.07.2019 by passing a reasoned and speaking order within four months. Pursuant thereto, the respondents rejected her claim vide order dated 21.01.2020. The subsequent execution proceedings, being Execution Application No. 6271 of 2024 arising out of O.A. No. 1152 of 2019, were disposed of on 20.05.2025, with liberty to the applicant to avail herself of the appropriate legal remedy against the said order. Aggrieved thereby, the applicant has filed the present Original Application seeking quashing of the impugned order, grant of family pension along with arrears and interest at the rate of 8% per annum, and compassionate appointment for her son.
Learned counsel for the applicant submits that the applicant is the second wife of the deceased railway employee and that she obtained a succession certificate from the competent civil court in respect of his retiral benefits. It is contended that the respondents have illegally rejected her claim for family pension on the ground that she is the second wife and have denied compassionate appointment to her son, Krishna Kumar, without properly considering the facts and circumstances of the case and the judicial pronouncements relied upon by the applicant. Learned counsel further submits that the impugned order dated 21.01.2020 is unsustainable in law and prays that the reliefs sought in the Original Application be granted.
Per contra, learned counsel for the respondents submitted that the Original Application is not maintainable, as the applicant has sought two separate reliefs, namely, family pension and compassionate appointment for her son, which are not consequential to each other. It is further submitted that the applicant’s son has not independently approached the Tribunal seeking compassionate appointment. The respondents contend that the deceased employee had married Smt. Seema during his lifetime and that the applicant’s alleged marriage with him, being a second marriage, is void under the provisions of the Hindu Marriage Act. Accordingly, the applicant is not entitled to family pension as she is not the legally wedded wife of the deceased employee. It is further submitted that, although the retiral benefits of the deceased employee were released to the applicant and her children pursuant to the succession certificate issued by the competent civil court, the said certificate does not confer any entitlement to family pension. The respondents maintain that the impugned order dated 21.01.2020 was passed by the competent authority in compliance with the Tribunal’s order dated 11.11.2019 in O.A. No. 1152 of 2019, after considering the applicable Railway Board circulars, and that no illegality or infirmity exists therein.
In the counter reply, learned counsel for the respondents further submitted that the claim for compassionate appointment of the applicant’s son is governed by the relevant Railway Board circulars, including RBE No. 42/2018 dated 21.03.2018, RBE No. 218/2019 dated 30.12.2019 and RBE No. 120/2023 dated 02.11.2023. It is contended that, although the Railway Board subsequently permitted consideration of claims of children born to a second wife in specified circumstances, the applicant’s representation dated 05.07.2019 preceded the issuance of the circular dated 30.12.2019, and the competent authority, therefore, rightly rejected the claim in the impugned order. The respondents have also referred to the subsequent Railway Board circular RBE No. 08/2026 dated 21.01.2026, clarifying that applications of children born to second wives received after 11.12.2018 are to be considered and decided on their individual merits and should not be rejected merely on the ground that the cause of action arose before that date. Nevertheless, the respondents maintain that the applicant is not entitled to the reliefs claimed and that the Original Application is liable to be dismissed.
In the rejoinder affidavit, learned counsel for the applicant, while reiterating the averments made in the Original Application, submitted that the respondents have arbitrarily rejected the applicant’s claim for family pension and compassionate appointment for her son vide the impugned order dated 21.01.2020, without properly considering the relevant rules, regulations and Railway Board circulars. It is further submitted that the applicant had specifically mentioned the name of her son, Krishna Kumar, in her representation dated 05.07.2019 for compassionate appointment and that she was granted the retiral benefits of her deceased husband pursuant to the succession certificate issued by the competent civil court. Learned counsel contends that the respondents have failed to disclose the relevant rules and regulations forming the basis of the rejection of her claim and have ignored the material facts and applicable legal position. Accordingly, it is prayed that the impugned order be quashed and the reliefs sought in the Original Application be granted.
Heard Mr. Subodh Kumar Rai, assisted by Mr. Shashi Kant Sharma, learned counsel for the applicant, and Mr. Pramod Kumar Rai, learned counsel for the respondents. The pleadings, documents and other material available on record have also been perused.
A perusal of the impugned order dated 21.01.2020 reveals that the respondents recorded the findings of the departmental inquiry concerning the family circumstances of Late Rajendra Kumar. The respondents noted that his first wife, Smt. Seema, had no children from the deceased employee, whereas the applicant had two daughters and four sons from her relationship with him. The order further records that the terminal benefits of the deceased employee had initially remained unpaid due to a dispute and that certain amounts, including provident fund, life insurance and leave encashment, were subsequently paid to the children on the basis of a succession certificate issued by the competent court. The relevant portion of the impugned order is reproduced below:-
“.......................रेल कम[चारȣ èव. राजेÛġ कुमार, अवर ͧ लͪ पक टȣआरडी ऐशबाग कȧ मृ×यु 23-08-2010 को हुई थी। जाँच मɅ यह तØय èपçट हुआ ͩ क कम[चारȣ का ͪ ववाह Įीमती सीमा के साथ हुआ था परÛतु उनसे कोई संतान èव. राजेÛġ कुमार के नहȣं थी। वाǑदनी अनीता ने èव. कम[चारȣ कȧ प×नी होने का दावा ͩ कया है जबͩ क जाँच मɅ यह èपçट हुआ है ͩ क कम[चारȣ èव. राजेÛġ कुमार ने अपनी प×नी से कोई संतान न होने के कारण, Ĥथम प×नी Įीमती सीमा के जीͪ वत रहते हुए अनीता को अपने साथ रख ͧ लया था और वह उसकȧ ͪ ववाǑहत वैध प×नी नहȣं थी। अनीता से कम[चारȣ को दो पुğी एवं 04 पुğ हुए और कम[चारȣ अपने काया[लय से अपनी ͪ ववाǑहत प×नी Įीमती सीमा के साथ-साथ अपनी अवैध प×नी से उ×पÛन बÍचɉ का भी सुͪ वधा पास लेता रहा।
मृतक कम[चारȣ कȧ प×नी Įीमती सीमा कȧ मृ×यु 02-03-2014 को हो गयी थी और उपलÞध अͧ भलेखɉ के अनुसार मृतक कम[चारȣ को समापक भुगतान ͪ ववाǑदत होने के कारण ͩ कसी को भी नहȣं Ǒदया गया था।
रेलवे बोड[ ɮवारा जारȣ Ǒदशा Ǔनदȶशɉ एवं लागू Ǔनयमɉ के अनुसार वैध प×नी कȧ मृ×यु कȧ िèथǓत मɅ अवैध प×नी के बÍचɉ को मृतक कम[चारȣ कȧ चल सàपͪƣ जो ͩ क रेलवे मɅ Ǔनवा[ह Ǔनͬ ध, डीसीआरजी, जीवन बीमा एवं अवकाश नकदȣकरण के Ǿप मɅ जमा थी, को स¢म Ûयायालय ɮवारा जारȣ उƣराͬ धकार Ĥमाण पğ के आलोक मɅ उनके Ǒहèसे के Ǿप मɅ भुगतान ͩ कया जा चुका है।.................”
In Rameshwari Devi v. State of Bihar, (2000) 2 SCC 431, the Hon’ble Supreme Court distinguished the rights of a second wife from those of children born out of a second marriage contracted during the subsistence of the first marriage. The aforesaid findings recorded in the impugned order are relevant to the claims raised in the present Original Application. However, the payment of retiral benefits pursuant to a succession certificate does not, by itself, determine entitlement to family pension, which has to be examined under the applicable Railway pension rules and the relevant legal principles.
I have carefully considered the rival submissions of learned counsel for the parties and perused the pleadings and material available on record. The applicant claims family pension on the basis of her relationship with Late Rajendra Kumar. It is not disputed that his first wife, Smt. Seema, was alive at the time of the employee’s death on 23.08.2010 and died subsequently on 02.03.2014. The record indicates that the first wife had no children from the deceased employee, that the applicant was residing with him and that no objection by the first wife to the applicant’s relationship has been brought on record. It is also recorded in the impugned order that the deceased employee continued to obtain railway privilege passes for the children born out of his relationship with the applicant, alongside his legally wedded wife. These circumstances are relevant to the consideration of the applicant’s claim. Rule 75(7)(i)(a) and (b) of the Railway Services (Pension) Rules, 1993 provides for distribution of family pension where it is payable to more than one widow and for the treatment of a widow’s share upon her death where she is not survived by any eligible child. In Union of India & Anr. v. Jaywantabai, Writ Petition No. 4467 of 2014, decided on 20.11.2014, reported as 2015 (5) ALL MR 584, the Hon’ble Bombay High Court considered the entitlement of a second widow to family pension under Rule 75 of the aforesaid Rules. The Hon’ble Supreme Court, while dismissing the Special Leave Petition in SLP (C) No. 11491 of 2015 by order dated 08.05.2015, observed that, following the death of the first wife and in the absence of surviving children from that marriage, the second wife would prima facie be entitled to the entire pensionary benefits, while leaving the question of law open. Further, in Sato Devi v. East Central Railway, O.A. No. 050/00782/2022, decided on 23.07.2024, the Central Administrative Tribunal, Patna Bench, applying Rule 75(7)(i) of the Railway Services (Pension) Rules, 1993, held the surviving second widow entitled to family pension in the circumstances of that case.
For just and proper adjudication, Rule 75, sub-rule (7), of the Railway Services (Pension) Rules, 1993, is quoted hereinbelow:-
“i.
a. Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.
b. On the death of a widow, her share of the family pension, shall become payable to her eligible child: Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal share, or if there is only one such other widow, in full, to her.
ii.Where the deceased railway servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the railway servant or pensioner: Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares not lapse but shall be payable to the other widow or widows or the other child or children otherwise eligible in equal shares, or if there is only one widow or child, in full, to such widow or child.
iii.Where the deceased railway servant or pensioner is survived by a widow but has left behind child or children from a divorced wife or wives, such child or children if they satisfy other conditions of the eligibility for payment of family pension shall be entitled to the share of family pension which the mother would have received at the time of death of the railway servant or pensioner had she not been so divorced: Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows or to the child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.”
A perusal of the aforesaid provisions shows that Rule 75(7) deals with the distribution of family pension where more than one widow is entitled to it, as well as the entitlement of eligible children born from another wife who is no longer alive or from a divorced wife. The Rule further provides that, in the circumstances specified therein, the share of family pension shall not lapse upon ceasing to be payable to one beneficiary but shall pass to the other eligible widow or child. In the present case, it is not disputed that the first wife, Smt. Seema, died on 02.03.2014, after the death of the employee, and that no child was born to her from the deceased employee. The impugned order also records that the deceased employee obtained railway privilege passes for the children born out of his relationship with the applicant, alongside his legally wedded wife. The record does not show that the first wife raised any objection to the applicant’s relationship during her lifetime or that family pension had been paid to her or to any other claimant.
The respondents have opposed the applicant’s claim for family pension primarily on the ground that she was not the legally wedded wife of the deceased employee. They have also stated that the retiral benefits were released pursuant to the succession certificate issued by the Civil Court, which did not contain any direction for payment of family pension. However, the succession certificate and the payment of retiral benefits thereunder do not, by themselves, determine the applicant’s entitlement to family pension. The record does not disclose that family pension was sanctioned or paid to the first wife or to any other claimant. In view of Rule 75(7) of the Railway Services (Pension) Rules, 1993, the judicial decisions discussed above, including Union of India & Anr. v. Jaywantabai and Sato Devi v. East Central Railway, and the specific circumstances borne out from the record, the respondents’ rejection of the applicant’s claim without adequately considering these aspects cannot be sustained. Accordingly, the applicant’s claim for family pension and other admissible retiral benefits, including DCRG, if not already paid, is liable to be allowed in accordance with the applicable rules.
So far as the claim for compassionate appointment of the applicant’s son, Krishna Kumar, is concerned, the applicant had sought his appointment through her representation dated 05.07.2019. The Railway Board, vide Circular No. RBE 218/2019 dated 30.12.2019, permitted consideration of the cases of children born to a second wife for compassionate appointment, subject to the conditions stipulated therein. The relevant extract of the said circular reads as under:-
“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 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.”
The applicability of the aforesaid instructions was subsequently clarified vide Railway Board Circular RBE No. 120/2023 dated 02.11.2023, whereby the instructions contained in RBE No. 218/2019 were made effective from 11.12.2018. Further, RBE No. 08/2026 dated 21.01.2026 clarifies that applications of children born to second wives, received after 11.12.2018, are to be considered on their individual merits and should not be rejected merely on the ground that the cause of action arose before that date. Since the applicant’s representation dated 05.07.2019 was submitted after 11.12.2018, the claim for compassionate appointment requires reconsideration in the light of the aforesaid instructions. The competent authority shall examine the claim on its merits, including the applicant’s son’s age and other eligibility conditions, and the relevant circumstances concerning the first wife, in accordance with the applicable Railway Board instructions.
In view of the foregoing discussion, the Original Application is allowed. The impugned order dated 21.01.2020 is set aside. The respondents/competent authority are directed (i) to release and pay family pension to the applicant, along with arrears from the date it became due and interest at the rate of 8% per annum, and to ensure payment of all other admissible retiral benefits, including DCRG, if not already paid, in accordance with the applicable rules and (ii) to reconsider the claim for compassionate appointment of the applicant’s son, Krishna Kumar, in accordance with Railway Board Circular No. RBE 218/2019 dated 30.12.2019 and to pass a reasoned and speaking order. The aforesaid directions shall be complied with within three months from the date of receipt of a certified copy of this order. There shall be no order as to costs.
All pending Miscellaneous Applications, if any, stand disposed of.