JUDGMENT
Shishir Kumar, J.
1. By means of the present writ petition the petitioner has approached this Court for issuing a writ of mandamus directing the respondents to give appointment under the Dying in Harness Rules.
2. The facts arising out of the present writ petition are that the father of the petitioner Sri Jayanti Prasad was posted in Ramnagar Range in District Basti on the post of Forester and he died on 19.7.2001. A copy of the death certificate issued by the Pradhan of the village has been annexed as Annexure 1 to the writ petition. After the death of his father the petitioner being the son of the deceased, moved an application for seeking an appointment under the Dying in Harness Rules. But the applications filed by the petitioner, in spite of the repeated reminders were not considered. It was informed to the authorities concerned that Smt. Savitri Devi is the legally wedded wife of Late Sri Jayanti Prasad and no divorce decree has ever been obtained from any Court of law, therefore, she will be treated to be legal wife of the petitioner’s father. There were no dissolution of marriage according to the Hindu Law but in spite of this fact no appointment letter was issued. Petitioner was informed from the office of the respondent No. 3 that they are intending to issue an appointment letter to one Smt. Raman Pandey, who alleged to be legally wedded wife of the petitioner’s father late Sri Jayanti Prasad. Then the petitioner moved an application before the authorities stating therein that the petitioner’s father was married to one Smt. Savitri Devi according to the Hindu rites and she was never divorced and if the petitioners father has married Smt. Raman Pandey, the said marriage is illegal and void according to the Hindu Law. It appears that on the application Tiled by the respondents, the Sub-Divisional Officer has passed an order expunging the name of the petitioner and the petitioner’s mother from the family register on the ground that she is not living with the petitioner’s father since 1981 and, as such, it will be treated to be abandonment of the marriage. A report to this effect has also been given that in the service record that late Jayanti Prasad had nominated Smt. Raman Pandey for the purposes of payment of retiremental and other benefits. When the petitioner came to know regarding the aforesaid fact, the petitioner has filed the present writ petition.
3. The notices have been issued and the counter and rejoinder affidavits have been exchanged A counter affidavit on behalf of respondent No. 4 has been filed and it has been submitted on behalf of the respondent that as the first wife of Late Sri Jayanti Prasad has left her husband, therefore, it will be treated that she has been divorced and from the record, it is also clear that she is already living with another person as his wife. By order dated 15th April, 2002 an application has been filed by the respondents. The Sub Divisional Magistrate has passed an order deleting the name of first wife of the petitioner and it has been held to this effect that Smt. Raman Pandey is the legally wedded wife of late Sri Jayanti Prasad.
4. The respondents further submits that in view of the finding recorded by the Sub Divisional Magistrate now it is established that the respondent No. 4 is the legally wedded wife and Smt. Savitri Devi has got no concern with Sri Jayanti Prasad as Smt. Savitri Devi has abandoned the house of her husband and remarried to another person, therefore, the marriage with Smt. Raman Pandey is treated to be legal and valid and, as such, she is entitled for appointment under the compassionate ground.
5. On the other hand, the counsel for the petitioner submits that the order dated 15.4.2002 passed by the Sub Divisional Magistrate and the finding recorded cannot be treated to be a binding as the same has been recorded in a summary proceeding. It is well settled that any finding recorded in the summary or mutation proceeding cannot be treated as binding.
6. I have heard learned Counsel for the petitioner and learned Counsel for the respondents and have perused the record.
7. It is not disputed that Smt. Savitri Devi is the first legally wedded wife according to the Hindu Rights and out of the wedlock the petitioner Rajesh Kumar Pandey was born. It is also admitted that valid divorce has taken place between Smt. Savtri Devi and late Sri Jayanti Prasad. The contention raised on behalf of the respondents to this effect is that as Savitri Devi herself has abandoned the house of late Sri Jayanti Prasad and was living with another person, impliedly it will be treated that it is a divorce, therefore, the marriage with Smt. Raman Pandey by late Sri Jayanti Prasad is legal and cannot be said to be void. As from the record, it is clear that it is not the case of the parties that at any point of time Smt. Sevitri Devi was divorced and it is also admitted that Smt. Savitri Devi was the legally wedded wife of Late Sri Jayanti Prasad and it is also not on record to show that Smt. Savitri Devi was ever divorced by late Sri Jayanti Prasad. In view of the aforesaid fact, it can be inferred that second marriage is not permissible in spite of the fact that second wife may have been living for a long period and out of their wedlock, children have born, cannot be treated to be legal according to Section 11 of the Hindu Marriage Act. It is also now well settled that children out of wedlock from illegal wife are also entitled for the benefits of the property and other things of the deceased person. They cannot be deprived of the fruits. But in the present case admittedly, the petitioner is a son of legally wedded wife, It is also to be seen that the respondent No. 4, on the basis of the nomination made by late Sri Jayanti Prasad, has been given all the retiral benefits, pension gratuity and other benefits and on that basis the name has also been mutated in the property of late Sri Jayanti Prasad.
8. In my opinion, if Smt. Raman Pandey is not legally wedded wife and the marriage of Smt. Raman Pandey is void. According to the Hindu Marriage Act she cannot claimed the benefits to claim an appointment under Dying in Harness because she does not come under the definition of family. The judgment relied upon by the counsel for the petitioner fully supports the contention of the petitioner.
9. In view of the judgment in Pooran Devi (Smt.) v. Chief Engineer Electricity Board and Ors. reported in (2004) 3 UPLBEC 2292, the Hon’ble Court has held that the respondent No. 4, who is claiming herself to be the second wife, is not entitled for appointment as the second marriage would be void. A similar view has been taken in 2004 (1) LBESR 152 Ramesh Chandra v. U.P. Power Corporation Ltd. Allahabad and Ors. and this Court has taken an analogy that right to compassionate appointment is not a right to property of the deceased employee. The parents of a child referred to under Section 16(3), are his parents who have entered into a void or voidable marriage. Para 10 is being reproduced below:
10. Right to compassionate appointment is not a right to property of the deceased employee. The parents of the child referred to under Section 16(3) are his parents who have entered into a void or void able marriage. We are concerned here with void marriage, for which no decree of annulment is required. Such a child does not have a right to property, of any person other than his parents. He, therefore, cannot claim compassionate appointment, which is a statutory right of the family of the deceased. There are other reasons for reaching to the same conclusion. There can be a conflict of interest between wife and her children from first valid marriage, and the child whose legitimacy is protected under Section 16 of the Hindu Marriage Act, 1955. A claim may be set up by persons alleging themselves to be children or strangers, causing litigation, delaying and thus defeating the purpose of such appointment. The object of compassionate appointment is to provide immediate financial help to the family. The child out of void marriage will essentially support his mother who is not included within the definition of ‘family’, as she is not the widow of the deceased employee, her marriage to the deceased being a void marriage. Further, as found above, such child cannot defeat the right of other persons to the property such as retiral benefits and pension of the deceased and these other persons will include only the legally married wife and her children.
10. Another judgment relied upon in Shakuntala Devi v. Executive Engineer reported in (2001)1 UPLBEC 869. The Court has held that second wife in spite of the nomination in the service record and in spite of the fact in the revenue record, the name has been mutated, cannot defeat the right of the first legally wedded wife and their children. Para 10 is being reproduced below:
10. In view of the well settled legal position with regard to the nomination, Smt. Bhawan Mati Devi petitioner is not entitled to collect amount for herself to the exclusion of Smt. Shakuntala Devi and her daughter. The fact remains that Smt. Shakuntala Devi is a legally wedded wife of deceased Nand Kishore. She was never divorced in proceedings under Section 125 Code of Crminal Procedure her husband had amitted her to be his wife and Km. Sangeeta, minor as his daughter. On the death of Nand Kishore, revenue authorities have reported that Smt. Shakuntala Devi and her daughter Km. Sangeeta were the only legal hirs of the deceased employee. A succession certificate in case No. 271 of 1991 had already been issued in favour of Smt. Shakuntala Devi though subsequently on the move of Smt. Bhawan Mati Devi its operation had been stayed. Smt. Bhawan Mati Devi could not marry late Nand Kishore in the month of May, 1978 as at that Smt. Shakuntala Devi, wife of late Nand Kishroe was alive and no divorce between Nand Kishore and Smt. Shakuntala Devi had taken place. Smt. Bhawan Mati Devi cannot, therefore, be treated as the legally wedded wife of late Nand Kishore. The nomination in favour of Smt. Bhawan Mati Devi is for the limited purpose as indicated in the decision of the Apex Court in Smt. Sarbati Devi and another’s case (Supra).
11. In Rameshwari v. State of Bihar and Ors. reported in 2000 (1) ESC 577 Supreme Court has already held that second wife having no status of widow is not entitled for anything. However, children from the second wife would equally share the benefit of death-cum-retirement gratuity and family pension till they attain their majority, therefore, she is not entitled for relief. The relevant Para 3 is being quoted below:
3. Dispute concerns to payment of family pension and death-cum-retirement gratuity to two wives of Narain Lal, who died in 1987 while posted as Managing Director, Rural Development Authority of the State of Bihar. Appellant is the first wife. Narain Lal is stated to have married second time with Yogmaya Devi on April 10, 1963 while the appellant was still alive. From the first marriage he had one son and from the second marriage four sons born in 1964, 1971, 1972 and 1976. Learned Single Judge in his judgment held that children born to Narain Lal from the wedlock with Yogmaya Devi were entitled to share the family pension and death-cum-retirement gratuity and further that family pension would be admissible to the minor children only till they attain majority. He also held that the second wife Yogmaya Devi was not entitled to anything. Appeal by the first wife Rameshwari Devi against the judgment was dismissed by the Division Bench. According to her there was no marriage between Narain Lal and Yogmaya Devi and the children were, therefore, not legitimate. Aggrieved Rameshwari Devi has come to this Court.
12. In view of the aforesaid fact, the writ petition is allowed and the mandamus is issued to the respondents No. 3 to consider the case of the petitioner for appointment under the Dying in Harness Rules taking into consideration the legal position and the observation made above as well and will also consider the judgment of the Apex Court as well as this Court and pass a detailed and reasoned order according to law preferably within a period of three months from the date of production of the certified copy of this order.
There shall be no order as to costs.