WRIT PETITION (S) No. 4461 of 2008
with
WRIT PETITION (S) No. 4495 of 2008
with
WRIT PETITION (S) No.1083 of 2010
......
In the matter of an application under Article 226 of the Constitution of India
.....
Union of India through Senior Divisional
Personnel Officer, East Central Railway,
Dhanabad ..... Petitioner (in all cases)
Versus
1. Basanti Devi
2. Bijay Rabidas ..... Respondents ( in WPS 4461/2008)
...
1. Shankar Thakur
2. Tukni Devi ..... Respondents ( in WPS 4495/2008)
...
Samaullah Ansari @
Sanaullah Ansari ...... Respondent (in WPS 1083/2010)
...
For the petitioner : Mr.Mahesh Tiwari, Advocate (in all the cases)
For the Respondents : Mr.Peeyush Krishna Choudhary (in all the cases)
PRESENT
HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE PRAKASH TATIA
.....
By Court:- These three writ petitions have been preferred by the Union of India, East
Central Railway, Dhanabad , challenging three separate orders passed by the Central
Administrative Tribunal, Circuit Sitting of Patna Bench at Ranchi, dated 16th July,2007 and 20th
July,2009 passed in O.A. Nos.256 of 2005, 61 of 2006 and 60 of 2006, whereby the Central
Administrative Tribunal (in short ‘CAT’) allowed the said Original Applications and held that
the child of second wife of employee (married during the life time of first wife) also is entitled
for compassionate appointment.
2. Facts of one case will serve the purpose for deciding all these writ petitions.
In O.A. No. 256 of 2005, Shankar Thakur and Tukni Devi submitted that Shankar
Thakur is the son of the deceased employee working under the Railways and applicant no.2 is
the wife of the deceased employee. It is not in dispute that deceased employee married with
Tukni Devi while his first wife was alive. The first wife was issueless and applicant no.1-
Shankar Thakur was born through the second wife. After the death of the employee , the first
wife of the deceased employee applied before the respondent(petitioner herein) for appointment
of the applicant no.1 on compassionate ground whereas he was son of second wife of the
2.
employee. The said prayer was rejected by the respondent vide communication dated 18 th July,
2005 (Annexure-A/8 filed alongwith O.A.). The prayer was rejected on the ground that in view
of the Railway Board circular no. E(NC)/II/91/RC-1/136 dated 2nd January, 1992, the child of
second wife cannot be given compassionate appointment.
3. The learned Tribunal relying upon two Division Bench judgments of Patna High Court,
delivered in the case of Union of India & ors. Vrs. Central Administrative Tribunals (2002 [2]
PLJR, 686 and Purushottam Kumar Vs. State of Bihar [ 2005(3) PLJR, 458] held that
rejection of the prayer of the appellant in those cases for compassionate appointment to child of
second wife of employees were illegal and, therefore, the respondents were directed to
reconsider the cases of the applicants, who sought compassionate appointment.
4. The learned counsel for the petitioner vehemently submitted that compassionate
appointment is not a right and is an exception to the rule of appointment and cannot be claimed
by any dependent of employee otherwise than as provided under the rules and as per the policy
of the appointment framed by the employer for this purpose. It is also submitted that as per the
Railway Service (Conduct) Rules, 1996, during the life time of first wife, solemnizing of second
marriage unless a permission has been obtained from the concerned Railway authority for
solemnizing the second marriage is not permissible and, therefore, the second marriage of the
employee in cases before the court are nullity in the eye of law as being in contravention of
Rule 21 of the Rules, 1996. In addition to above, there is a specific embargo contained in the
policy decision of the Railway Board given out in the above said Circular dated 2 nd January,
1992 which specifically prohibits the appointment on compassionate ground to the children
born out of the second marriage of an employee, obviously, which marriage has been
solemnized or contracted without obtaining permission of concerned Railway Authority.
The learned counsel further submitted that the cases relied upon by the Tribunal
do not lay down the correct proposition of law , inasmuch as in Purushottam Kumar’s
case(supra) the Division Bench of the Patna High Court proceeded to decide the claim on
compassionate appointment as though such claim is a property and heritable right whereas the
compassionate appointment is not a heritable right so as one can claim it as his heritable right
under his personal law. Compassionate appointment has entirely different aims and objects and
has nothing to do with the right of inheritance. Further, and in the case of Union of India Vrs.
Central Administrative Tribunal (supra), the Division Bench of the Patna High Court has not
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taken into consideration the relevant rules as both the Division Benches were not apprised with
the Circular issued by the Railway Board dated 2nd January, 1992 prohibiting compassionate
appointment to the child of second marriage. It is also submitted that such restriction is
reasonable restriction and it is not the case of the applicants, who sought appointment, that the
said Circular is arbitrary and illegal in any manner.
5. Learned counsel appearing for the incumbents submitted that the child of
employee out of second wedlock even if found to be illegitimate child, yet he remains the child
of the father-employee and, therefore, rightly it has been held that such child shall be entitled to
the same treatment as is available for child of first marriage. It is submitted that two Division
Benches of Patna High Court have considered the relevant personal law and even after holding
that second marriage in the life time of first wife of a person may be void but his son is entitled
to all the benefits under personal law and if any employee had two wives at the time of his
death, his both wives are entitled to share in pension.
6. We have considered the submissions of the learned counsel for the parties and
perused the record and facts of the case and also considered the judgments relied upon by the
learned counsel for the petitioner as referred to above.
7. It is a settled law that appointment on compassionate ground is not a source of
recruitment as held in various judgments and one of which was delivered by the Hon’ble
Supreme Court in the case of State Bank of India & anr. Vrs. Raj Kumar, reported in (2010)
11 SCC 661, wherein the Hon’ble Supreme Court held that the compassionate appointment is an
exception to the general rule that recruitment to public services should be on the basis of merit,
by an open invitation providing equal opportunity to all eligible persons to participate in the
selection process. The Dependants of employees, who die in harness, do not have any special
claim or right to employment, except by way of the concession that may be extended by the
employer under the Rules or by a separate scheme, to enable the family of the deceased to get
over the sudden financial crisis. The Hon’ble Supreme Court thereafter held that the claim of
compassionate appointment is, therefore, traceable only to the scheme framed by the employer
for such employment and there is no right whatsoever outside such scheme.
8. So far this legal proposition of law is concerned, this is accepted legal position
and if we examine the issue raised in these writ petitions, keeping in view the above legal
position then the applicants will have to show their claim on the basis of the employer’s
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decision to provide employment to the dependent of deceased employee. The Circular No.
E(NC)11/91/RC-1/136 dated 2nd January ,1992 is as follows :
“It is clarified that in the case of railway employees dying in harness etc.
having 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.
The fact that the second marriage is not permissible is invariable
clarified in the terms and conditions advised in the offer of initial
appointment.
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”.
9. The said circular was not brought to the notice of the two Division Benches of
the Patna High Court , who decided the cases of the Union of India Vrs. Central
Administrative Tribunal (supra) and Purushottam Kumar (supra). The validity of this Circular
has not been challenged , which is in existence from 2nd January,1992. Therefore, so far the
decision of the employer is concerned, it clearly provides that children of second marriage of
the employee shall not be eligible for compassionate appointment unless the employee obtained
the permission for second marriage which could have been granted only in special
circumstances. Admittedly the employees in the cases did not obtain any permission for second
marriage by showing special circumstances for second marriage and, therefore, in view of the
said circular dated 2nd January,1992 the incumbents were not entitled to compassionate
appointment. Since the Circular dated 2nd January, 1992 was not brought to the notice of the two
Division Benches referred above, therefore, both the Division Benches have no benefit of
knowing the effect of the Circular, in the light of the settled law that compassionate
appointment can be sought only when it is traceable to the scheme framed by the employer for
such appointment.
10. So far as the case of Union of India Vrs. Central Administrative Tribunal,
reported in 2002(2) PLJR 686, is concerned, the said judgment is a brief judgment, wherein it
appears that sympathy more prevailed and therefore, the Division Bench held that stand of the
Railway administration obviously denying the appointment to the children of second wife is too
technical. In that case, it was submitted that first wife was admitted to mental asylum and in that
situation the employee contracted second marriage and since there was no child from first wife,
therefore, second wife’s child , who was equally entitled to the retirement benefits and family
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pension from the employer railway administration through his mother and , therefore, having
split the pensionary benefits between the two wives, the Court observed that it is not difficult to
provide a job under the rule of harness to the son of the second wife when as the record shows
there is no rival and first wife has given consent that the son of the second wife be employed.
As we have already observed that neither the rules nor the above Circular was
brought to the notice of the Division Bench and therefore that judgment has no application, in
the facts and circumstances of the present case.
11. In Purushottam Kumar’s case (supra), the Division Bench of the Patna High
Court took into consideration Rule 23 of the Bihar Government’s Conduct Rules regarding
marriage of the employee, whereunder, under sub-rule (1), it has been provided that no
Government servant shall enter into or contract a marriage with a person having a spouse living
and sub-rule(2) says that no Government servant, having a spouse living shall enter into or
contract a marriage with any person. Then it has been observed by the Division Bench that
admittedly the second marriage of the employee was misconduct in terms of the Government
Servant’s Conduct Rules but the first wife or any other person did not raise any objection during
the life of the father of the appellant i.e. in the life time of employee. Then the Division Bench
considered the Government Circular contained in memo no. 3/C2-2067/90 KA.13293 dated 5th
October, 1991 . This Circular provided for employment in Class-III and Class-IV posts in case
of death of a Government servant during service period. The said memo also lays down the
categories/ persons entitled to the said appointment and other procedure for the same.
According to the Circular, only dependent will be given employment on compassionate ground
and under the category of dependents are widow of the deceased employee, son, unmarried
daughter and the widow of predeceased son and the order of preference would, the widow of the
deceased, son, unmarried daughter and the widow of predeceased son. In Purushottam
Kumar’s Case (supra), the aforesaid Circular was applicable and, therefore, the Division Bench
held that since appellant, the son of the deceased, may he be outcome of a void marriage, in
terms of Section-5 read with Section 11 of the Hindu Marriage Act which provides that any
marriage solemnized after the commencement of Hindu Marriage Act, 1955 in violation of
Clause(1) of Section 5 shall be null and void. But even when such marriage is void, Section-16
of the Hindu marriage Act provides that notwithstanding that the marriage is null and void
under Section -11, any child of such marriage who would have been legitimate if the marriage
6.
had been valid , shall be legitimate, whether such child is born before or after the
commencement of Marriage Laws(Amendment)Act,1976 and whether or not a decree of nullity
is granted in respect of that marriage under the Act and whether or not the marriage is held to be
void otherwise than on a petition under the Act. In addition, sub-section(3) of Section 16
provides that the child of a marriage which is null and void will have rights in or to the property
of his parents only and not to the property of any other person.
12. The Division Bench in Purushotam Kumar’s case, after considering the above
provisions of law reached to the conclusion that though the marriage is void but the child born is
a legitimate one and they will share the property equally with the legitimate children in their
parents property and by a deeming provision illegitimate children of a second marriage have
been treated to be legitimate and he will inherit the property in the same manner as a legitimate
son of a valid marriage.
13. Then the Division Bench proceeded to consider the effect of Hindu Succession Act and
observed that in the parents property the son of the second wife also have the same right as the
legitimate son of the first wife and there is no distinction and differentiation can be made with
regard to share in the property of the parents. The Division Bench also considered the Apex
Court decision given in the case of Rameshwari Devi Vrs. The State of Bihar & ors., as
reported in AIR 2000 SC 735, wherein the Apex court held that children of the void marriage
are legitimate and the property of a male Hindu dying intestate devolve firstly on heirs in Class
1 which include widow and son. A son of the second wife being legitimate son will be entitled
to the property of the deceased in equal share along with the first wife and her sons. Then the
Division Bench of the Patna High Court considered a policy decision of the State Government
for compassionate appointment which speaks about ‘son’ only and in the opinion of the
Division Bench since son of the second marriage is also legitimate son and, therefore, the
employee’s second wife’s son cannot be denied benefit of compassionate appointment.
14. With respect, we are unable to subscribe the view expressed in Purushottam
Kumar’s case. Firstly, the compassionate appointment and right to inherit property have no co-
relation, nor can be equated in any manner. The compassionate appointment is not a property
which can be subject matter of alienation and can be bequeathed whereas the devolving of
property of a person is governed by the law , may it be customary or may it be statutory law,
whereas the service and benefit arising out of services are governed by the frame of the contract
7.
of service or the rules governing the service of the employees and by the scheme, if framed by
the employer. The compassionate appointment depends solely upon the frame of contract
between the employer and employee and cannot be made subject matter to be governed by the
personal law, when the employer has not provided so. The Hon’ble Supreme Court in the case of
State Bank of India Vrs. Raj Kumar (supra) clearly held that compassionate appointment is
traceable only to the scheme framed by the employer for such appointment and there is no right
whatsoever outside such scheme. Therefore, in our humble opinion, merely because illegitimate
child has been put at par in the matter of inheritance, by specific and statutory provision, its
benefit cannot be extended, so as to put a burden upon the employer when the employer
specifically has disallowed such benefit to such successor of the employee.
15. We may again observe here that the said decision of Railway Board, not providing
compassionate appointment to the child of second wife of the employee who contracted second
marriage in the life time of the first wife, is neither under challenge nor has been shown to be
unreasonable, rather it appears to be in consonance with the public policy of the monogamy.
Therefore, on this count also, in our humble opinion, the view expressed by the Tribunal does
not appeal to us.
16. In addition to above, in Purushottam Kumar’s case also the fact and situation
was entirely different. In Purushottam Kumar’s case, there was a specific provision for
providing employment to the dependent of the Government servant, who died while in service
and it provided appointment to the employees’ “son” without any restriction against
appointment to the son of second wife. Therefore, on facts also Purushottam Kumar’s case has
no application as in the present case there is specific restriction against the appointment to the
son of second wife of the employee who contracted marriage in the life time of first wife.
17. In view of above discussions, the orders passed by the Tribunal in O.A. Nos. 256
of 2005, 61 of 2006 and 60 of 2006 dated 16th July,2007 & 20th July,2009 are liable to be set
aside and hence the orders impugned are set aside. O.A. No. 256 of 2005, O.A. No. 61 of 2006
and O.A. No. 60 of 2006 are dismissed.
(Bhagwati Prasad, C.J.)
( Prakash Tatia, J. )
Jharkhand High Court, Ranchi
Dated: the 13th April, 2011
G.Jha/ A.F.R.