*THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY +WRIT PETITION NO : 24538 OF 2008 % 04-03-2009 # Smt.M.Samadhanam PETITIONER VS. $ The Divisional Railway Manager (P)/S.C. Office of the DRM, Pesonnel Branch, Vth Floor, Sanchalan Bhavan, Secunderabad….. RESPONDENTS ! Counsel for the Petitioners: MR.E.V.BHAGIRATHA RAO ^ Counsel for the Respondent No : MR.R.S.MURTHY (ADD.CGSC) < Gist: > Head Note: ? CITATIONS: 1. AIR 2000 SC 735 2. W.P.NO.2622 OF 2008, DT.5.3.2008 APHC IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 24538 of 2008 Between: Smt. M.Samadhanam, W/o. late M.Ramakoti, C/o. P.Sudhakar Rao, D.No.7-83, Adinarayana Puram, Epurupalem post, Chirala Mandalam, Prakasam District 523 166 ..... PETITIONER AND 1 The Divisional Railway Manager (P)/S.C. Office of the Divisional Railway Manager, Personnel Branch, Vth Floor, sanchalan Bhavan, Secunderabad. 2 Smt. M.Savithri, W/o. late Rama Koti, C/o. M.Venkateswarlu, Soppakatlapalem (Village & Post) Errupalem Mandalam, Khammam District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Rule Nisi Calling for the records leading upto and inclusive of the proceedings of the 1st Respondent in Rc.No.CP/500/ONR/374/2004 DATED 7-8-2008 AND Quash the same by issuing a writ, order or direction in the nature of Ceritorari and be pleased to pass Counsel for the Petitioner: MR.E.V.BHAGIRATHA RAO Counsel for the Respondent No.: MR.R.S.MURTHY (ADD.CGSC) The Court made the following : O R D E R: 1. Sri.M.Ramakoti worked as a Technical-I in the office of Divisional Railway Manager, Secunderabad – 1st respondent. He died on 4.10.2004 while in service. The petitioner-M.Samadhanam submitted representation dated 24.12.2004 claiming to be the widow of the M.Ramakoti (hereinafter referred as deceased) for settlement of death cum retirement benefits and pension. R2-M.Savithri also submitted a representation dated 15.12.2004 claiming to be the widow of the deceased. In view of the rival claims, R1 advised R2 to file a suit before the competent court of law and seek a declaration duly impleading the petitioner. R2 filed O.P.No.94 of 2005 on the file of Family Court, Vijayawada seeking for declaration that she is the legally wedded wife of the deceased. The petitioner was impleaded as R1 and whereas R1 herein was impleaded as R2 in the said O.P. The petitioner and R2 arrived at a settlement with regard to sharing of the death cum retirement benefits, pension and also compassionate appointment. The matter was referred to Lok Adalat wherein the petitioner and R2 filed compromise petition. An award came to be passed in terms of the compromise on 4.4.2008. ParaS 4 and 5 of the terms of compromise arrived at between the parties need to be noted and they are: “ 4. It is agreed by the petitioner and the 1st respondent that the debts and the debility of the deceased Macherla Rama Koti shall be discharged by the 1st respondent and for that an amount of Rs.50,000/- out of the death benefits of the deceased Macherla Rama Koti shall be kept with the 1st respondent and the 1st respondent is solely responsible for the discharge of the debts of the deceased Macherla Rama Koti and the petitioner has no duty or liability to discharge the debts of the deceased Macherla Rama Koti. Both the petitioner and the 1st respondent are equally entitled and equally share the remaining death benefits including the arrears of pension of the deceased Macherla Rama Koti. 5. It is agreed by the petitioner and the 1st respondent the pension amount shall be received by the petitioner from the Railway authorities from the date of compromise and immediately after receipt of the same shall give half of the pension amount to the 1st respondent and obtain proper receipt from the 1st respondent to that effect, from the date of the compromise till the date of the joining of the 1st respondent in the job and that after joining in the job by the 1st respondent, the petitioner is entitled for the full pension of the deceased Macherla Rama Koti and the 1st respondent shall not object for the same.” 2. In nutshell, the terms of the compromise are: Firstly, Smt.Savitri is to receive pension and whereas death benefits, including arrears of pension are to be shared equally by Smt.Savitri and Smt.Samadhanam; secondly Smt.Savitri is entitled to claim family pension; thirdly Smt.Samadhanam is entitled to claim compassionate appointment. 3. The petitioner submitted application on 18.6.2008 claiming compassionate appointment. R1 informed the petitioner that she being the second widow is not entitled for compassionate appointment. The communication sent to the petitioner by R1 reads as hereunder: “ As per rule, in the case of railway employees dying in harness, etc., leaving more than one widow, appointment son compassionate grounds to the second widow and her children are not to be considered. Smt.M.Savitri was the first wife of Late Shri M.Rama Koti and the marriage between them having had subsisted, you are the second widow of Late Shri M.Ramakoti. As such, your request for your appointment on compassionate grounds, being inadmissible as per rule, cannot be considered.” R1 also advised the petitioner-Smt.Samadhanam and R2-Smt.Savitri to approach the competent Court of law and obtain necessary declaration. The action of 1st respondent in directing the petitioner despite the award dated 31.3.2008 passed in the O.P.No.94 of 2008 is under challenge in this writ petition. 4. It is the case of the petitioner that she has been declared as wife of the deceased during his life time in the nomination form executed on 30.9.2004 for P.F., GIS and DCRG and therefore the action of R1 in directing her to seek declaration from the competent civil Court is not justified. It is also her contention that the dispute between her and R2 is settled in Lok Adalat and an award came to be passed whereunder he is entitled to seek compassionate appointment and in which case the action of R2 in directing her to obtain necessary orders from the competent court is not justified. 5. R1 and R2 filed counter affidavits. The counter affidavit of R1 in brief is : The Lok Adalats have no ad judicatory and judicious functions and their functions purely refer to conciliation. As this respondent is not a signatory to the compromise arrived at between the petitioner and R2, the award passed in the Lok Adalat does not bind him. The terms of compromise incorporated in the award are against the statutory rules governing the payment of benefits on the death of the employee while in service. The deceased had nominated Smt.Samadhanam to receive the retirement benefits through his nomination form executed on 30.9.2004. The terms of award are contrary to the statutory rule. The deceased employee while in service has declared the petitioner as his wife in his declaration and also nominated her to receive 100 % P.F. etc., and whereas R2 had submitted copy of the order dated 8.6.1989 passed by the Additional JFCM, Vijayawada in M.C.No.17 of 1988 as proof of her status as wife of the deceased employee. The department had no other go than to advise R2 to get her title declared by a competent court of law by duly impleading the petitioner. 6. In the counter affidavit of R2, she admits of her filing O.P.No.94 of 2005 seeking declaration and settlement between her and the petitioner and passing of the award by the Lok Adalat. She does not dispute the terms of the settlement arrived at between her and the petitioner in the Lok Adalat. However, she denies the marriage of the petitioner with the deceased and the petitioner giving birth to a son on 12.12.2000 out of the wedlock. She claims that she is entitled for all the benefits being the legally wedded wife of the deceased. 7. Heard learned counsel appearing for the parties. 8. Learned counsel appearing for the petitioner submits that the dispute between the petitioner and 2nd respondent came to be settled at Lok Adalat and consequently an award came to be passed which attained the status of a decree and therefore it binds R1. He further submits that once a decree has been passed, it is beyond the competency of R1 to direct the parties to approach a competent civil court once again and obtain declaration as to their status with reference to the deceased. 9. Per contra, learned Standing Counsel for R1 submits that the petitioner cannot be recognized as a widow of the deceased since the deceased had a subsisting wife as on the date of her alleged marriage with the petitioner. A further submission has been made that the deceased did not obtain any permission from R1 for marrying the petitioner during the subsistence of his marital relationship with Smt.Savitri. She refers Railway Service (Conduct) Rules, 1966 in support of her submissions. Much emphasis has been laid on Rule 21, which reads as under: “ 21. Restrictions Regarding Marriage: (1) No railway servant shall enter into, or contract, a marriage with a person having a spouse living; and (2) No railway servant, having a spouse living shall enter into, or contract, a marriage with any person. (3) A railway servant who has married or married a person other than of Indian nationality shall forthwith intimate the fact to the Government. Provided that the government may permit a railway servant to enter into, or contract, any such marriage as is referred to in clause (1) or clause (2), if it is satisfied that – a. Such marriage is permissible under the personal law applicable to such railway servant and other party to the marriage; and b. There are other grounds for so doing.” Shee placed reliance on the judgment of Supreme Court in RAMESHWARI DEVI v. STATE OF BIHAR[1] and the Division Bench judgment of this court in N.RAJAMMA v. UNION OF INDIA[2]. The Division Bench considered the validity of the decree passed by Lok Adalat with regard to compassionate appointment to the second wife of the deceased. It has been held by the Division Bench that if the deceased employ did not obtain permission from the employer for contracting the second marriage, the second wife is not entitled for compassionate appointment. The relevant portion of the judgment reads as under: “ There is no dispute that the petitioner herein is the second wife of the deceased Railway Employee. The decree passed by Lok Adalat is also admitted by the parties, but it is contended by the respondents that the said decree is not binding, inasmuch as the Railway Administration was not made a party to it. The fact that there was a settlement between the first and second wife is the subject matter of the decree passed by the Lok Adalat. The Tribunal dismissed the O.A. mainly on the ground of the Serial Circular No.5/92 wherein, the Railway Board has directed the administration that the case for compassionate appointment to the second widow or her wards need not be forwarded to the Railway Board. It is nobody’s case that the deceased employee had obtained permission for second marriage, which alone is the except for the petitioner or her son to be considered for compassionate appointment. The Tribunal after elaborate analysis of the events, in our considered view, has rightly dismissed the O.A. Having gone through the impugned order and in the facts and circumstances of the case, we do not see any illegality in the impugned order. However, in the facts and circumstances of the case, it is left open to the petitioner to avail the remedies open to her. Consequently, the writ petition fails and is accordingly dismissed at the stage of admission. No order as to costs.” In view of the Division Bench judgment of this Court in N.RAJAMMA V. UNION OF INDIA’s case (2 supra), the 1st respondent is justified in refusing the request of the petitioner to consider her claim for compassionate appointment. However, a fact remains that the petitioner is the nominee of the deceased, in which case, there cannot be any impediment for the 1st respondent to disburse the amounts due under P.F., GIS and DCRG benefits to the petitioner. With regard to the compassionate appointment, the 2nd respondent being the first wife of the deceased can make an application seeking compassionate appointment. 10. Accordingly, the writ petition is disposed of directing the 1st respondent to pay the amounts due under P.F., G.I.S. and DCRG. benefits to the petitioner being the nominee of the deceased and consider the claim of the 2nd respondent in the event of her submitting an application seeking for compassionate appointment and also family pension in accordance with the Rules in force. No costs. ________________________ B.SESHASAYANA REDDY, J. Date:04th March, 2009. Tnb/cs LR COPY TO BE MARKED ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{LS} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.24538 OF 2008 4TH MARCH 2009. [1] AIR 2000 SC 735 [2] WP.No.2622 of 2008, DT.5-3-2008. APHC