1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE14H DAY OF NOVEMBER2016PRESENT THE HON’BLE MR.JUSTICE JAYANT PATEL AND THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION NO.37642 OF2015(S-CAT) BETWEEN:
1. THE UNION OF INDIA THROUGH THE GENERAL MANAGER, SOUTH WESTERN RAILWAY, KESAVAPURA, HUBLI-580023 2.THE DIVISIONAL PERSONNEL OFFICER SOUTH WESTERN RAILWAY, MYSORE DIVISION, MYSURU57000 3.THE DIVISIONAL RAILWAY MANAGER SOUTH WESTERN RAILWAY, MYSORE DIVISION, MYSURU57000 (BY SRI ABHINAY Y T, ADVOCATE) ... PETITIONERS2AND:
1. SMT.R.LAKSHMIDEVAMMA WIFE OF LATE V NAGRAJ, AGED ABOUT50YEARS, 2.L N CHETAN SHARMA SON OF LATE V NAGRAJ AGED ABOUT25YEARS, BOTH ARE RESIDING AT # 5/B, 7TH CROSS, RAJENDRA NAGAR, MYSURU57000 ... RESPONDENTS (BY SRI IZHAR AHMED, ADVOCATE FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DTD.13.5.2015 [ANNEX-C]. PASSED IN RA NO.1/2014 BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE AND CONSEQUENTIALLY DISMISS THE REVIEW PETITION. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, JAYANT PATEL J., PASSED THE FOLLOWING:
2. Mr.Izhar Ahmed, learned Counsel appears for respondent Nos.1 and 2 and waives notice of Rule.
3. The present petition is directed against the order dated 13.05.2015 passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal for the sake of brevity), whereby the Tribunal for the reasons recorded in the order has allowed the review application and has allowed the main OA by directing the respondents to consider the second applicant for compassionate appointment within the stipulated time limit.
4. The short relevant facts of the case appears to be that initially O.A.No.587/2013 was preferred by the respondents for the compassionate appointment of respondent No.2 contending interalia that one Sri 4 V.Nagraj, who was employee of the petitioners died on 11.10.1998 leaving behind three wives. It was submitted that earlier the Tribunal had directed the daughter of second wife Kum.Anitha S.N., to be considered for compassionate appointment. However, the daughter of second wife was medically found unfit and therefore it was prayed that respondent No.2 herein being the son of third wife be treated as eligible for compassionate appointment and the petitioners be directed to consider the same. In the said O.A. vide order dated 25.07.2013 the Tribunal found that there is no rule that the eldest child should be entitled for the compassionate appointment and the Tribunal also found that when there is no rule produced in respect of providing employment to the children of third wife, the second applicant therein who is respondent No.2 herein cannot contend that he being the eldest child of late Sri 5 V.Nagraj be considered for compassionate appointment. Ultimately the Tribunal dismissed the application with the cost of Rs.10,000/-.
5. It appears that thereafter review application was preferred being No.1/2014 against the aforesaid order of the Tribunal. The Tribunal in the review application found that the aspect that the father of the applicant did not obtain permission of the Railway for second marriage was already considered and therefore the second respondent herein who is the eldest son would be entitled to the compassionate appointment. The Tribunal mainly proceeded on the basis that the legitimacy or illegitimacy of the children is of no issue. There is no distinction between the legitimate and illegitimate children and all children are equally to be considered. Hence the Tribunal allowed the review application and also allowed the O.A and further 6 directed the respondents therein to consider the second respondent herein for compassionate appointment. Under the circumstances, the present petition before this Court.
6. We have heard Mr.Abhinay Y.T., learned Counsel appearing for the petitioners and Mr.Izhar Ahmed, learned Counsel appearing for the respondents.
7. As such, it is an undisputed position that the deceased Government employee Mr.V.Nagraj, did not enter second marriage or third marriage after obtaining permission of Railway. Further, it is also admitted position that the deceased Sri V.Nagraj died as back as on 11.10.1998 and by now about 18 years time has passed and if we consider the date of the application made before the Tribunal then also about 15 years time had passed. 7 8. The learned Counsel appearing for the petitioners contended that as per the Circular of the Railway dated 02.01.1992 unless the marriage was performed after obtaining permission of the Railway, the children of second or third wife would not be entitled for compassionate appointment. Further, he submitted that substantial period of time has passed and the compassionate appointment cannot be considered after such a long time. He relied upon decisions of this Court which shall be considered by us hereinafter. He also contended that the Tribunal, that too in review jurisdiction could not have directed for consideration of the compassionate appointment of the second respondent. Hence he contended that this Court may set aside the order passed by the Tribunal below the review application. 8 9. Whereas the learned Counsel appearing for the respondents contended that the very Circular dated 02.01.1992 is considered by the Ahmedabad Bench of the Tribunal and the Ahmedabad Bench of the Tribunal has found that there is no nexus in achieving the object by the Circular dated 02.01.1992 and hence the Tribunal quashed the Circular and further directed the Railway to consider the case of the applicant for compassionate appointment. He further submitted that the aforesaid decision of the tribunal was carried before the High Court of Gujarat in Special Civil Appeal No.8545/2015 and the High Court of Gujarat vide order dated 23.07.2015 dismissed the petition of the Railway and confirmed the order of the Tribunal. He submitted that therefore the Circular upon which reliance has been placed by the learned Counsel for the petitioners when it is already quashed by the other Bench of the 9 Tribunal and the High Court of Gujarat has not interfered with the same, cannot be considered for defeating the rights of the respondents and hence he submitted that the petition may be dismissed.
10. We may at the outset record that the impugned order passed by the Tribunal in the main O.A. is dated 25.07.2013 Annexure ‘B’ and below the review application is dated 13.05.2015. Whereas the order passed by the Ahmedabad Bench of the Tribunal is dated 18.03.2015 and the High Court of Gujarat has passed the order on 23.07.2015. It is undisputed position that the Tribunal in the impugned order below the review application has not allowed the review application on the basis of the order passed by the Ahmedabad Bench of the Tribunal for quashing of the Circular nor has relied upon the order passed by the High Court of Gujarat dated 23.07.2015. The Tribunal 10 has gone by the broad principles that the legitimacy or illegitimacy of the child is no issue before the Court and has found that the second respondent would be entitled for consideration for compassionate appointment.
11. We may at this stage usefully refer to the view taken by this Court. In W.P.No.45392/2013 and connected matter in case of Union of India Vs. Smt.Nithya S.E. decided on 22.02.2016, the question arose for consideration of compassionate appointment of the members of the Railway employee who died while in service. This Court at paragraph-10 by relying upon the master circular observed thus:
10. Insofar as the appointment on the Compassionate grounds is concerned, the same is also not permissible in view of Supplementary Circular No.5 of Master Circular No.16 vide Annexure-D. The said Circular reads thus:
11. “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 second 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 grounds 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 clarified in the terms and conditions advised in the 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 forwarded to Railway Board.” 12 From the aforementioned, it is clear that the appointments on compassionate grounds 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. As mentioned supra, the personal law of S.N.Ethirajulu or Smt.Nitya S.E. (second wife) does not permit them to marry second time. Therefore, Smt. Nitya S.E, being the second wife is not entitled for the appointment on compassionate grounds.” 12. The aforesaid shows that this Court has already taken the view that the appointment 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. 13 13. Again the question did arise for consideration for the validity of the master circular and the entitlement of the compassionate appointment in respect of the Government servant who had expired but entered into second marriage due to his personal law but did not obtain permission of the Railway for entering second marriage. This Court in case of Mohammed Ghouse Vs. Union of India in W.P.No.37318/2016 decided on 27.09.2016 while considering the master circular and the personal law as well as the service conditions observed at paragraphs-5 and 6 as under: “5. We may record that the personal law of any employee is one aspect whereas his relation with the employer being governed by the service condition is another aspect. It was not a matter where on account of his personal law something was to be invalidated. It was rather a matter where 14 service condition provided a particular right with the dependent member of the employee for compassionate appointment. As per the Master Circular No.5 of the Railway which has also been referred to by the Tribunal for the compassionate appointment, it has been expressly provided as under: “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 grounds 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. 15 2. The fact that the second marriage is not permissible is invariably clarified in the terms and conditions advised in the 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 forwarded to Railway Board.” 6. If the aforesaid Circular is considered, it is clear that as per the service condition, the widow from second marriage and her children are not entitled to be considered for compassionate appointment, unless the second marriage is performed after taking permission of the administration. In our view, if the service condition provides for regulating the provision for compassionate appointment, on account of the personal law, such service condition cannot be diluted nor can be nullified, more particularly, when such service condition is not under challenge 16 nor at any point of time was under challenge during the lifetime of the employee concerned.” 14. Ultimately this Court did not interfere with the view taken by the Tribunal for dismissal of the application for compassionate appointment.
15. It is true that the Ahmedabad bench of the Tribunal considered the matter. The aforesaid views already taken by this Court were neither brought to the notice nor considered by the Ahmedabad bench of the Tribunal and so is the case when the matter came up for consideration before the High Court of Gujarat. In our view, when there are already two binding decisions of this Court and in one decision one of us (Jayant Patel J) was a member, with respect, we cannot agree with the view taken by the High Court of Gujarat, confirming the above referred decision the view taken by the Ahmedabad Bench of the Tribunal. 17 16. In our view as such, when there are two decisions of the co-ordinate Bench of this Court, they are, in any case binding to us. Hence, we cannot accept the contention raised by the learned Counsel for the respondents.
17. Apart from the above, if one considers the question of delay, the essential purpose for any compassionate appointment is to give a solace to the family of the deceased Government employee by way of an immediate support. Such provision for compassionate appointment cannot be read to have the right for indefinite period. The time of about 18 years has passed. Therefore we find that the provision made for compassionate appointment cannot be asserted as of right that too after a period of 18 years and if considered from the date of application after about a period of 15 years. Hence it would be also a valid 18 ground to interfere with the order passed by the tribunal below the Review application.
18. We may also record that the power of review is limited to the extent of error apparent on the face of the record and it is not an appeal in disguise. If the scope and ambit of the review jurisdiction is considered, the Tribunal when on merits by the earlier order dated 25.07.2013 in the main O.A. had not accepted the contention of the applicant merely because subsequently some proceedings arose in the civil court was no valid ground to review the earlier order. Further the rights of the children for succession of a property by way of service benefit or otherwise cannot be equated with the provision made for compassionate appointment by way of service condition. The Tribunal even while considering the aspects for review did not consider the aforesaid aspects. In our considered view, the Tribunal 19 while exercising the review power has gone beyond the scope of the review and hence the order can be said to be in excess of jurisdiction.
19. In view of the aforesaid impugned order passed by the Tribunal below the review application dated 13.05.2015 Annexure ‘C’ deserves to be quashed and set aside. Hence the same is quashed and set aside. Resultantly the review application shall stand dismissed. The petition is allowed to the aforesaid extent. Rule made absolute. No order as to costs. Sd/- JUDGE Sd/- JUDGE JT/-