Bombay High Court
Yuvraj Dajee Khadake vs The Union Of India on 21 February, 2019
Author: A.S. Oka
Bench: A.S. Oka, Sandeep K. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1564 OF 2017
Yuvraj Dajee Khadake
s/o. Late Shri Dajee Jawoo of Thane,
Indian Inhabitant,
residing at Latifwadi (Sawarwadi)
Post Vihigaon, Tal. Shahapur, Dist. Thane,
Maharashtra 421 602. ... Petitioner
Versus
The Union of India,
Through The Divisional Railway
Manager's Office, 5th Floor,
Annex Building, Chhatrapati Shivaji
Terminus (CST), Mumbai - 400 001. ... Respondent
Mr. A.K. Saxena a/w Mr. Ganesh Dahale for the Petitioner.
Mr. Chetan Chandulal Agrawal for the Respondent.
CORAM : A.S. OKA &
SANDEEP K. SHINDE, JJ.
DATE ON WHICH SUBMISSIONS WERE LASTLY HEARD: 6th FEBRUARY 2019
DATE ON WHICH JUDGMENT IS PRONOUNCED : 21st FEBRUARY 2019
JUDGMENT (PER A.S. OKA, J.):-
1 The petitioner's father was in the employment of the Central Railway. He died in harness on 12 th August 2003. The petitioner made an application for grant of employment on compassionate ground. By the impugned communication dated 6th December 2016, the respondent rejected the said application on the ground that the marriage between the petitioner's mother and the petitioner's father was solemnized during the subsistence of first marriage of the petitioner's father. The question which arises in this petition is whether the petitioner could have been denied 1 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 2 wp-1564.17 .doc compassionate appointment notwithstanding the provisions of section 16 of the Hindu Marriage Act, 1955 (for short "the said Act of 1955").
2 The learned counsel appearing for the petitioner pressed into service a decision of a Division Bench of this Court in the case of Union of India and Anr. Vs. V.R. Tripathi1. He submits that this judgment holds that even if a son or a daughter of an employee is born from a second marriage which is not valid, in view of section 16 of the said Act of 1955, compassionate appointment cannot be denied to the son or the daughter. Reliance was placed on a decision of Madras High Court in the case of H. Anwar Basha V. Registrar General (Incharge) and Anr. 2 Our attention is also invited to the decision of the Apex Court in the case of Rameshwari Devi Vs. State of Bihar and Ors.3 The learned counsel appearing for the respondent urged that appointment on compassionate ground is governed by a policy. He relied upon the circular of the Railway Board dated 21 st March 2018 which specifically lays down that a son or a daughter of an employee who can be treated as legitimate under section 16 of the said Act of 1955 is not entitled to seek compassionate appointment. He submitted that when the decision of this Court in the case of Union of India and Anr. Vs. V.R. Tripathi (supra) was rendered, the aforesaid circular of the Railway Board was not in existence. He invited our attention to the decision of another Division Bench at Nagpur in the case of Union of India and another vs. Pradeep Uttam Gid 4. He urged that this decision takes a contrary view. He would, therefore, submit that no interference is called for.
3 We have considered the submissions. It is well settled that compassionate appointment is not a normal source of appointment and is an exception to the general rule. Entitlement to receive compassionate
1. Judgment and order dated 1st April 2016 in Writ Petition No.910 of 2015
2. (2008) LAB. I.C. 3370
3. (2000)2 SCC 431
4. Judgment and order dated 31st July 2015 in Writ Petition No.3374 of 2014 2 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 3 wp-1564.17 .doc appointment has to be judged on the basis of rules, regulations or executive instructions which govern the same. In the case of SBI vs Raj Kumar5, the Apex Court held that:
"12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, up to the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable."
(emphasis added) 4 Hence, an application for the grant of compassionate appointment is governed by the policy or the scheme which is in force on the date of consideration of the application. There was a circular issued by the Railway Board dated 2nd January 1992 which provided that where an employee who dies in harness had contracted a second marriage during the subsistence of the first marriage without obtaining permission of the Railways, the second wife or the children from the second wife will not be entitled to get compassionate appointment. In the case of Namita Goldar and Anr. Vs. Union of India and Ors. 6, the Calcutta High Court struck down the said circular dated 2nd January 1992 as it was illegal. The said decision of the Calcutta High Court delivered on 10 th February 2010 has attained finality.
5 The issue is whether a son of Railway employee who died in harness and who was born to second wife of the deceased employee was entitled to compassionate appointment especially when the marriage of his mother with the deceased employee was not valid. In paragraph 10 of the
5. (2010) 11 SCC 661
6. 2010 LAB I.C. 1465 3 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 4 wp-1564.17 .doc aforesaid decision in the case of Union of India and another vs V.R.Tripathi (supra) this Court recorded the following finding :-
"10] Therefore, at least on and from 10 February 2010, there is no rule, regulation or executive instruction, which bars the children of a second wife from being considered for compassionate appointment, provided of course, such children, comply with other rules, regulations and executive instructions in the matter of compassionate appointment. There is material on record, as noted by the Calcutta High Court, that the railways have granted compassionate appointment to the son of second wife. In such circumstances, the Union of India (Railways) was not justified in rejecting the respondent's claim to even be considered for compassionate appointment, once again, by relying upon the railway board's circular dated 2 January 1992."
(emphasis added) In paragraph 14, the Division Bench held thus :-
"14. Mr. Suresh Kumar's third contention with regard to the so called "illegitimacy" of the respondent, also does not deserve any acceptance. Section 5 (i) read with Section 11 of the H. M. Act, no doubt provides that a marriage solemnized between two Hindus, during subsistence of previous marriage shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity. However, notwithstanding all this, Section 16 of the H. M. Act, in terms provides that the children of such void marriage shall, nevertheless, be legitimate. Section 16 of the H.M. Act reads thus:
Section 16 - Legitimacy of children of void and a voidable marriages :
1. Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that 4 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 5 wp-1564.17 .doc marriage under this Act and whether or not the marriage is held to be void otherwise than on petition under this Act.
2. Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity,
3. Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."
(emphasis added) In paragraph 15 to 17, the Division Bench held thus:
"15] From the aforesaid, it is quite clear that notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate, if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 and whether or not a decree of nullity is granted in respect of that marriage under the H. M. Act and whether or not the marriage is held to be void otherwise than on a petition under the H. M. Act. Thus the very provisions contained in Section 16 of the H. M. Act are sufficient to reject Mr. Suresh Kumar's contention with regard to so called "illegitimacy" of the respondent.
16] In Rameshwari Devi (supra), the dispute concerned payment of family of pension and deathcumretirement gratuity to the two wifes of Narain Lal, who died in 1987 while posted as Managing Director, Rural Development Authority of the State of Bihar. The first wife Rameshwari Devi had contended that the second wife Yogmaya Devi and her children were not entitled to share the family
5 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 6 wp-1564.17 .doc pension and deathcumretirement gratuity as the marriage between Narain Lal and Yogmaya Devi was against the provisions of law as contained in Sections 5 and 11 of the H. M. Act and was therefore, a void marriage. The Hon'ble Supreme Court rejected the contention raised on behalf of State of Bihar that Narain Lal had indulged in a misconduct by marrying second time by observing that the State had never charged Narain Lal with such misconduct whilst he was in service and no disciplinary proceedings were ever held against him during his lifetime (para 13 of the judgment and order). The Hon'ble Supreme Court, even after accepting Rameswhari Devi's contention that the marriage between Narain Lal and Yogmaya Devi was void, nevertheless, ruled that the children of second marriage were legitimate children, in view of the legal provisions contained in Section 16 of the H. M. Act and therefore, they could never be denied the share in family pension and deathcumretirement gratuity. In paragraphs 13 and 14, the Hon'ble Supreme Court has observed thus: "13. But then it is not necessary for us to consider if Narain Lal could have been charged of misconduct having contracted a second marriage when his first wife dying intestate devolves firstly on heirs in clause (1) which include the widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void. The sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal . That is, however, the legal position when a Hindu male dies intestate. Here, however, we are concerned with the family pension and deathcumretirement gratuity payments which are governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment."
17] The provisions contained in Section 16 of the H.M.Act, as interpreted by the Hon'ble Supreme Court in 6 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 7 wp-1564.17 .doc Rameshwari Devi (surpa), therefore, afford a complete answer to Mr. Suresh Kumar's contention with regard to the so called "illegitimacy" of the respondent. Such contention, therefore, deserves rejection and is hereby rejected."
(emphasis added) The Division Bench proceeded to confirm the direction of the Central Administrative Tribunal to consider the case of the respondent before this Court for grant of compassionate appointment.
6 In the case of Union of India and another vs. Pradeep Uttam Gid (supra), A Division Bench of this Court has taken a view that a daughter or a son of second wife cannot claim compassionate appointment. Even the decision of the Calcutta High Court setting aside the circular dated 2 nd January 1992 was brought to the notice of the Division Bench. Thus, it is possible to argue that the subsequent decision of a coordinate Division Bench in the case of Union of India and Anr. Vs. V.R. Tripathi (supra) takes a contrary view. But this need not detain us as the controversy has been laid to rest by the judgment and order dated 11 th December 2018 passed by the Apex Court in Civil Appeal No.12015 of 2018. This appeal was preferred by the Union of India for challenging the aforesaid decision dated 1 st April 2016 in the case of Union of India and Anr. Vs. V.R. Tripathi (supra). We have perused the said decision. An argument was canvassed by the Union of India before the Apex Court that in view of sub-section (3) of section 16 of the said Act of 1955, an illegitimate child can have claim only in respect of the property of the parents and no other claim. The Apex Court considered various earlier decisions on the aspect in paragrah 12. The Apex Court noted that the real issue to be decided was whether the condition imposed by the circular of Indian Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of deceased employee (except where second marriage was permitted by the 7 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 8 wp-1564.17 .doc administration) is consistent with Article 14 of the Constitution of India. Thereafter, the Apex Court in paragraph 13 proceeded to consider the provisions of section 16 of the said Act of 1955. Paragraphs 14 and 15 are the findings rendered by the Apex Court which read thus :-
"14. The issue essentially is whether it is open to an employer, who is amenable to Part III of the Constitution to deny the benefit of compassionate appointment which is available to other legitimate children. Undoubtedly, while designing a policy of compassionate appointment, the State can prescribe the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires.
15. Even if the narrow classification test is adopted, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved. The learned Additional Solicitor General has urged that it is open to the State, as part of its policy of discouraging bigamy to restrict the benefit of 8 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 9 wp-1564.17 .doc compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination."
(emphasis added) 7 Even in paragraph 16, the Apex Court observed that if the children born to the second wife of the deceased employee dying in harness are excluded from the policy of compassionate appointment, it would be offensive to and defeat whole object of ensuring dignity of family of the deceased employee who has died in harness and it brings about the unconstitutional discrimination. Accordingly, the appeal preferred by the Union of India was dismissed by the Apex Court.
8 After the said decision in the case of Union of India Vs. V.R.Tripathi (supra) was rendered by the Division Bench of this Court on 1 st April 2016, there is a circular dated 21st March 2018 issued by the Railway Board. Paragraphs 4 and 5 of the said circular read thus :
"4. The matter has been examined and in supersession of this Ministry's letter dated 02.01.1992 issued under RBE No.01/1992 and No.E(NG)II/2012/RC-1/21 dated 03.04.2013, it has been decided that the first right of being considered for compassionate grounds appointment is vested, in cases of death of Railway servants while in service, with the legally wedded surviving widow provided
9 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 10 wp-1564.17 .doc she has not remarried at the time of making request for appointments on compassionate grounds. It is clarified that in cases of those Railway Servants who are governed by the Hindu Marriage Act, 1955, there can only be one legally wedded wife/widow, as second marriage, while spouse is living, is void/voidable in view of the Section 5(1) read with Section 11 of the Act. In this respect, Railway Board's letter No.E(D&A) 92 GS 1-1 dated 10.04.1992 connects.
5. If aforementioned legally wedded surviving widow does not want herself to be considered for compassionate grounds appointment, she can nominate, for CG appointment, a "bread winner" for the family from amongst the following :
(a) In cases of those Railway Servants who are governed by the Hindu Marriage Act, 1955 : Son (including adopted son); or daughter (including widowed/ adopted/ married/ divorced daughter).
However, if such Railway Servant has left sons/daughters, who have been treated as legitimate or deemed to be legitimate, under Section 16 of Hindu Marriage Act, 1955, neither widow can nominate them as bread winner for CG appointment nor such sons/daughters can claim CG appointment.
(b) In cases of those Railway Servants who are governed by their respective Personal Laws :- Son (including adopted son); or daughter (including widowed/ adopted/ married/ divorced daughter). However, if such Railway Servant has left sons/daughters through second/subsequent legally valid marriages, i.e. other than through first wife and deceased Railway Servant have failed to obtain requisite permission for such second/subsequent marriage as required under section 21 (relating to restrictions regarding marriage) of the Railway Services (Conduct) Rules, 1966, neither first widow/second/subsequent widow can nominate such sons/daughters as bread winner for CG appointment nor such sons/daughters can claim CG appointment. Moreover, such second/subsequent widow also would not have any right to seek compassionate grounds appointment."
10 of 12 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 17:54:26 ::: 11 wp-1564.17 .doc 9 We may note that in paragraph 20 of the aforesaid decision in the case of Union of India Vs. V.R. Tripathi (supra), the Apex Court referred to the fact that Railway Board issued another circular dated 13 th April 2011 in terms of the earlier circular dated 2 nd January 1992. The Apex Court observed that this action was improper. Therefore, there is a serious question mark against the action of Railway Board of issuing circular dated 21st March 2018 excluding the children of the second wife of deceased employees from compassionate appointment. This circular is completely contrary to the law laid down by the Apex Court in the aforesaid judgment dated 11th December 2018 and violates Article 14 of the Constitution of India. In any case, on the date of consideration of the application made by the petitioner, the said circular was not in existence. When the application was made by the petitioner and his mother requesting for grant of compassionate appointment to the petitioner was considered on 6 th December 2016, he was entitled to compassionate appointment being son of the deceased Railway employee in terms of the aforesaid decision of this Court and Apex Court in the case of V.R.Tripathi. In any event, the decision on the application made by the petitioner will be governed by the decision of the Apex Court in the case of Union of India Vs. V.R. Tripathi (supra) as it confirms the decision of this Court which was operating when the application made by the petitioner was considered.
10 Accordingly, we pass the following order :-
ORDER
(i) The impugned order dated 6th December 2016 (Exhibit - C) is hereby set aside;
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(ii) We direct the respondent to consider the case of the petitioner afresh for grant of compassionate appointment in the light of what is held in this judgment. Appropriate decision shall be taken within a period of two months from today;
(iii) Rule is made absolute on above terms.
(SANDEEP K. SHINDE, J) (A.S. OKA, J)
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