Kumari Dinu Bhengra Vs. Railways - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 234 of 2014 Kumari Dinu Bhengra …......... Petitioner Vrs.

1. Union of India represented through the General Manager, South Eastern Railway, Kolkata 2. The Divisional Railway Manager, SER, Chakradharpur Railway Division, West Singhbhum, Jharkhand 3. The Senior Divisional Personnel Officer, SER, Chakradharpur Railway Division, West Singhbhum, Jharkhand 4. The Senior Section Engineer,(P.Way), Bahalda Road, SER, Chakradharpur Railway Division, West Singhbhum, Jharkhand ….......... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE B. B. MANGALMURTI For the Petitioner : M/s M.M.Pal, Ruby Pandey For the Respondents : Mr. Vijoy Kumar Sinha, ASC(Railway) 25/01.08.2017 Heard learned counsel for the parties.

2. The instant case relates to refusal of compassionate appointment of the Applicant/ Writ Petitioner, daughter of second wife of the deceased employee, late William Bhengra who died on 12.6.2000 while working as Mate under the Section Engineer(P.Way) in Bahalda Road Railway Station, District Mayurbhanj under the Chakradharpur Railway Division, South Eastern Railway. The Applicant's claim was rejected by order dated 2.9.2005(Annexure-3) as per the provisions of Railway Board's Circular dated 2.1.1992, which provided that appointment on compassionate grounds to the offspring born out of the second marriage of the employee, contracted during subsistence of first marriage is not permissible.

3. The Applicant approached the Cuttak Bench of learned Central Administrative Tribunal (CAT) in Original Application (O.A.) No. 494 of 2009(Annexure-7) after her representation made for reconsideration failed to redress the grievances. According to the Applicant, one Sharda Kumari, daughter of the second wife of the deceased employee Late R.D. Thakur, who was also denied appointment on the same ground in the year 2007, was asked to attend written test on 30.12.2008 to provide her appointment under Group- C post on compassionate grounds. When the representation made on the ground of parity on 16.1.2009 before the Senior Divisional Personnel Officer was not heeded to, did the Applicant approach the Cuttak Bench. The said O.A was dismissed on the point of jurisdiction by order dated 27.10.2009. Thereafter the present O.A. No. 170 of 2010(R) was preferred with M.A. No. 20 of 2011 seeking quashing of the order of rejection dated 2.9.2005 and -2- condonation of delay in filing the O.A. The learned Tribunal by the impugned order dated 3.4.2012 has dismissed the O.A. being guided by the Circular dated 2.1.1992 and also on the ground of delay in moving the learned CAT.

4. The issue relating to application of Circular No.1/92 dated 2.1.1992 of the Railway Board to such cases even after the decision of the Hon'ble Calcutta High Court in the case of Smt. Namita Goldar and Anr. Vrs. Union of India & Ors. reported in 2010(1) CLJ (Cal.) 465 was referred for consideration before the Full Bench by the learned Division Bench of this Court in the case of Union of India through General Manager, E.C. Railway, Hajipur Vrs. Suraj Kumar Prasad & others (W.P.S. No. 8078 of 2012). The learned Full Bench of this Court vide judgment dated 16.6.2017 has held as under:-

“16. The issue to be decided by this Larger Bench regarding reference made is being answered accordingly as follows: Once the Railways Board's Circular No. 1/1992, dated 02.01.1992 has been quashed by the Hon'ble Calcutta High Court in the case of Smt. Namita Goldar (Supra) to the extent it prevents the children of second wife from being considered for appointment on compassionate ground and the said decision attained finality, having not been challenged by the Railway authorities, the Circular of the Railway Board to the extent quashed by the Hon'ble Calcutta High Court is no more in existence and no benefit thereof can be taken by the Railway Authorities unless a contrary view is taken by the Apex Court. As such, the Railway Board is stopped from taking the advantage of the Circular No. 1/1992, dated 02.01.1992 arising out of Rule 21 of Railway Service (Conduct) Rules, 1966 in similar matters after it being quashed by Hon'ble Calcutta High Court in the case of Smt. Namita Goldar & Another Vrs. Union of India & Ors. Resultantly we hold that the Central Administrative Tribunal has rightly decided the O.A. No. 212 of 2011 (R) rejecting the contention of the Railway Board. We do not find any illegality or infirmity in the impugned order dated 04.05.2012 passed in O.A. No. 212 of 2011(R) and as such, the writ petition merits dismissal. In the result, this writ petition stands dismissed and the order dated 04.05.2012 passed in O.A. No. 212 of 2011(R) is upheld”.

5. Learned counsel for the Respondent Railways submits that the matter may be remanded to the Respondents to consider the case of the Applicant in the light of the full Bench judgment of this Court.

6. On the question of delay, learned Senior Counsel for the Applicant/ writ petitioner has tried to explain the circumstances under which the order of rejection dated 2.9.2005 was challenged in O.A. No. 170 of 2010 after sometime. The relevant chronology of events as also noticed in the foregoing paragraphs have been reiterated on the part of the writ petitioner. -3- 7. We are satisfied that the Applicant had sufficient explanation for the delay in moving the learned CAT, Patna Bench at Ranchi in the instant O.A. after the order of rejection. She had also been pursuing the case before the learned CAT , Cuttak Bench in O.A. No. 494 of 2009 taking a plea of parity in matters of consideration with one Sharda Kumari, who was reportedly offered compassionate appointment after being once rejected on the same ground.

8. In these circumstances, in view of the pronouncement of the learned full Bench judgment of this Court, we are of the view that case of the petitioner requires reconsideration. Consequently, the impugned order dated 3.4.2012 passed in O.A. No. 170 of 2011(R) (Annexure-9) is set aside. The order of rejection dated 2.9.2005 (Annexure-3) is also quashed. The Respondents would consider the case of the petitioner afresh within a reasonable time, preferably 12 weeks from the date of receipt of copy of this order.

9. The writ petition is allowed in the aforesaid terms. (Aparesh Kumar Singh, J.) (B.B.Mangalmurti, J.) A.Mohanty