IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18275 of 2010 PANKAJ KUMAR SINGH , SON OF LATE PARMANAND SINGH, RESIDENT OF VILLAGE-GRAHI, P.O. GRAHI, P.S. JANDAHA, DISTRICT-VAISHALI AT HAZIPUR. ……………………………………………………….PETITIONER. Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI. 2. THE GENERAL MANAGER/PERSONNEL, EASTERN RAILWAY, HAZIPUR. 3. THE SENIOR DIVISIONAL RAILWAY MANAGER, EASTERN RAILWAY, SAMASTIPUR. 4. THE CHIEF PERSONNEL OFFICER, (ADMINISTRATION) EASTERN RAILWAY, HAZIPUR. ………………………………………………….RESPONDENTS. ----------- For the Petitioner : M/s. Rajendra Prasad Singh, Senior Advocate, Rajiv Kumar Singh, Onkar Kumar, Rakesh Kumar Singh and Mukesh Kumar Singh, Advocates. For the Railway : Mr. Madhu Prasun, Advocate. -------------- 3. 27.1.2011. Heard learned counsel for the petitioner and the learned counsel for the Railway. 2. By the impugned order dated 6.8.2010 contained in Annexure-‘1’, the Central Administrative Tribunal, Patna Bench, Patna, has dismissed O.A. No.396/2010, preferred by the petitioner, and as a result, the decision of the Railway Authorities not to grant compassionate appointment to the petitioner stands 2 confirmed. 3. There is no dispute that the petitioner’s father died in harness while serving under the Indian Railways on 25.11.1983. Since the petitioner was a minor, an application was filed in 1984 intimating that the application for compassionate appointment shall be duly filed when the son of the deceased employee becomes a major. As per case of the petitioner, he became 21 years of age in 1996. It is also not in dispute that the deceased employee had married twice, the second marriage being during the life time of the first wife and petitioner is one of four sons born from the second marriage. 4. The claim of the petitioner for compassionate appointment was finally rejected by the authorities on 5.5.2010 by rejecting representation dated 22.4.2010. That order is part of Annexure-‘2’ series and mentions the reason for rejection of prayer for compassionate appointment. It has been specifically stated in that letter and also in the counter affidavit filed in this Court that the employee had entered into second marriage without taking administrative permission from the department and, therefore, as per Railway Board’s Circular No.01/1992, appointment on compassionate ground 3 to the second wife and her children could not be considered unless the administration had permitted the second marriage, in special circumstances, taking into account the personal law etc. 5. On behalf of the petitioner, it has been submitted that although first wife of the deceased employee had consented to her husband’s second marriage but still the competent authority, illegally and wrongly did not permit second marriage and, hence, the fault lay with the authorities, for which petitioner cannot be penalized. 6. On going through the correspondences made in respect of permission for the second marriage sought by the deceased employee, we find that although recommendation was made by some of the authorities but the competent authority did not grant the required permission. The reason for not granting permission for the second marriage is clear because for granting such permission the authority had to consider not only the special circumstances but also the personal law. 7. In the case of a person governed by the Hindu Law such as the deceased employee, during the life time of the first wife no permission could have been granted for the 4 second marriage. Hence, it cannot be held, in the facts of the case, that the competent authority committed any error in not granting the permission for second marriage. 8. Thus, on consideration of the main ground mentioned by all concerned for not agreeing to the request for compassionate appointment, we are in agreement with the authorities that as per the scheme of compassionate appointment, the petitioner could not have been offered such appointment because he was a son from the second wife and the second marriage was solemnized during the life time of first wife without obtaining administrative permission. 9. We must address another contention advanced by the learned counsel for the petitioner that since law permits right of inheritance even to illegitimate children, therefore, they must also be deemed eligible for right of compassionate appointment even though not being a child from the first wife. This submission is misconceived and based upon a judgment of the Supreme Court in the case of Rameshwari Devi Vrs. The State of Bihar, AIR 2000 SC 735 rendered in the context of provisions of the Hindu Marriage Act and the Hindu Succession Act. A claim for compassionate appointment stands on a different footing and 5 is governed by terms and conditions in the scheme for such appointment adopted by the employer-State. Unless there be a challenge to such a scheme forcing the authorities to adopt another scheme, any compassionate appointment must be in accordance with the provisions of the Scheme framed for such appointment. Such a view has been adopted in a recent Division Bench Judgment dated 22.4.2010 of this Court in C.W.J.C. No.2592 of 2007 (The Union of India and others Vs. Uma Devi and another), which is annexed as Annexure- ‘B’ to the counter affidavit. 10. On the other hand, learned counsel for the petitioner has placed reliance upon another Division Bench Judgment dated 5.8.2008 in C.W.J.C. No.11259 of 2007 (The Union of India and others Vs. Most. Ramsakhi Devi and others), which is annexed as Annexure-‘11’ to the reply to the counter affidavit. 11. Although, the judgment contained in Annexure-‘11’ is an earlier Division Bench order but it is bereft of any discussion or finding on relevant law because the writ petition was dismissed in limine only after noticing the observations in the impugned order of that case. On the other hand, the later judgment contained in Annexure-‘B’ 6 refers to judgment of the Supreme Court and the relevant provisions of Hindu Law. Hence, we find the judgment contained in Annexure-‘B’ to be a good precedent in the matter. On that basis also we hold that while claiming compassionate appointment under a scheme, the claim cannot be allowed de-hors the same unless the scheme has been challenged leading to adoption of a different scheme. The relevant scheme of the Railways and Circular No.01/1992 have held the field for long and are not in challenge. 12. In view of the aforesaid discussions, this writ petition has to be dismissed but before that we may add that the learned Tribunal has further noticed that the compassionate appointment would be now after 21 years of the death of the deceased employee. This additional fact also dissuaded us from interfering in the matter because it is well established in law that compassionate appointment is an exception to general law which requires appointment in Government or Public Services to be in accordance with Articles 14 and 16 of the Constitution of India. Such exception is permitted only to enable the family in distress to survive on account of sudden death of the bread earner. When the family has already survived for more than two 7 decades, allowing compassionate appointment would run counter to the mandate of Articles 14 and 16 of the Constitution of India. The Railways would be well advised to review their scheme for compassionate appointment accordingly. 13. For all the aforesaid reasons, we find no merit in this writ petition. It is, accordingly, dismissed. P.S. ( Shiva Kirti Singh, J) ( Dr. Ravi Ranjan, J)