IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9462 of 2011 ------------- In the matter of an application under Article 227 of the Constitution of India. -------------- Mostt.Sunita Devi , wife of late Bhola Tanti, Ex. T. No. 27013, Welding Shop, Jamalpur, R/o Mohalla- Nayagaon ( near Satsang Mandir), Po- Jamalpur, Distt. Munger............. Petitioner Versus 1. The Union Of India through the General Manager, Eastern Railway, 17- Netaji Subhash Road, Kolkata. 2 The Chief Works Manager, Eastern Railway, Jamalpur Workshop, P.O.- Jamalpur, District- Munger 3. Workshop Personnel Officer, Eastern Railway, Jamalpur Workshop, P.O. Jamalpur, District- Munger............ Respondents. For the petitioner :- Mr. Vindhya Keshri Kumar, Sr.Advocate, Mr. Shekhar Singh, Advocate. & Mr. Shree Nivas Madhuvan, Advocate For the respondents: Mr. Anil Singh, Advocate ----------- 2 12-9-2011 The petitioner claimed for compassionate appointment for her eldest son, Rajiv Kumar, on the ground that late Bhola Tanti died in harness in service of Railway at Jamalpur Railway Workshop on 17-11-2006. When the authorities did not accept her claim and rejected her prayer for compassionate appointment, she preferred O.A. No.662 of 2009 before the Central Administrative Tribunal, Patna Bench, Patna. That case has been dismissed by the impugned order dated 14th May, 2010 ( annexure-12). 2. The relevant facts for deciding the controversy lie 2 within a narrow compass . Late Bhola Tanti was married to one Meena Devi prior to his appointment on 30th January,1979 on the post of Technician Grade-II. The said Meena Devi allegedly deserted the husband and went to her parental house in 1980 and remarried with one Ramnandan Tanti. Thereafter Bhola Tanti solemnized marriage with the petitioner Sunita Devi on 28th February, 1982. Meena Devi died issueless on 15-1-1993. Bhola Tanti died while in service on 17-1-2006 leaving behind only one widow, the petitioner, one daughter ( married ) and two sons. Petitioner has claimed compassionate appointment for her eldest son, Rajiv Kumar. 3. Admittedly, at the time of death of the employee there was only one widow namely Sunita Devi The settlement of retiral dues was made entirely with the petitioner and there is no rival claimant for compassionate appointment. 4. Ordinarily, the judgment of this Court in the case of Sandeep Kumar Vrs. State of Bihar, reported in 2001 (4) PLJR 821 should have governed the case of the petitioner and compassionate appointment should have been allowed, 3 as per the view of the learned single Judge who rendered that judgment after relying upon the judgment of the Supreme Court in the case of Rameshwari Devi Vrs. State of Bihar , reported in 2000 (2) PLJR 15 ( SC )., However, on account of another Division Bench judgment of this Court in the case of Deepak Kumar Thakur Vrs. Bihar State Electricity Board, reported in 2004(2) PLJR 19, the learned Tribunal made a distinction that if there be any specific rule that children of second marriage during the life time of first wife were not eligible for compassionate appointment, then the Division Bench Judgement in the case of Deepak Kumar Thakur ( supra ) would apply. The Tribunal relied upon Railway Board Circular dated 2nd January, 1992 and held that appointment on compassionate ground to the second widow or her children is not to be offered unless the administration has permitted the second marriage in special circumstances taking into account the personal law etc. 5. We have been taken through the said circular of the Railway Board dated 2nd January, 1992 which is quoted in the letter of the Eastern Railway dated 24th January, 1992 (Annexure-10). Since the decision in this case depends 4 upon the provisions in the said circular, it is deemed necessary to extract the relevant provisions : “ Copy of Railway Board`s letter No. E (NG) II/91/RC-1/136 dated 2-1-92 addressed to the General Manager (P), All Indian Rail and others. Sub: Appointment on compassionate ground- case of second widow and her wards. 1. It is clarified that in the case of railway employees dying in harness etc. leaving more than one widow along with children born to the 2nd 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 ground to the second widow and her children are not to be considered unless the administration has permitted the second marriage in special circumstances, taking into account the personal law etc. 2. The fact that the second marriage is not permissible invariably clarified in the terms and conditions advised in offer of initial appointment. 3. This may be kept in view and the cases for compassionate appointment to the second widow or her wards need not be for to Railway Board. 4. Kindly acknowledge receipt.” 6. A careful perusal of the circular dated 2nd January, 1992 discloses that the Tribunal has misread the circular to hold that the second widow or her children are not to be offered compassionate appointment unless the second marriage was permitted by the authorities . There is no such 5 provision in the said circular. The circular only clarified that if a Railway employee dies in harness leaving more than one widow with children born to the second wife, the settlement dues will be shared by both the widows but the appointment on compassionate ground is not to be considered for the second wife or her children unless the administration has permitted the second marriage. The entire condition is part of one complex sentence and the prohibition is dependent upon the fact that the employee must have left at the time of his death, more than one widow and in that situation claim of the second widow or her children cannot be considered for compassionate appointment. The underlying policy is to accord sanctity and value to the first marriage unless the second marriage was done after obtaining due permission from the administration. But the entire situation covered by the circular is one of competition between the two rival widows alive at the time of death of the employee. 7. So far as the present case is concerned, admittedly the first wife had died long back without any issue and 6 allegedly she has deserted the husband of the petitioner and she married for the second time during the life time of her husband. This was explained by learned counsel for the petitioner by submitting that there are local custom in many castes and sub-castes which recognize desertion to be equivalent to divorce. However, in the present case, we are not concerned with the said custom because clearly at the time of death of the employee in harness, he left behind only one widow and her children. That widow and her children have inherited the entire settlement of service dues and in such a situation, in our considered view, the restriction upon compassionate appointment to the second wife or her children as stipulated in the circular dated 2nd January, 1992 is not attracted at all. 8. In view of aforesaid discussions the impugned order of the learned Tribunal under challenge dated 14th May, 2010 is set aside. The writ petition is allowed. The concerned authorities are directed to reconsider and pass a fresh order in respect of claim of the petitioner for compassionate appointment of her eldest son in accordance 7 with law and in the light of this judgment and order within a period of three months from today. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)