Delhi High Court
Union Of India vs Pankaj Kumar Sharma on 19 December, 2014
Author: Vipin Sanghi
Bench: S. Ravindra Bhat, Vipin Sanghi
$-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 19.12.2014
% W.P.(C.) No.9008/2014
UNION OF INDIA ..... Petitioner
Through: Mr. Malaya Kumar Chand with
Ms.Shivani Singh, Advocate
versus
PANKAJ KUMAR SHARMA .....Respondent
Through: Mr. Sanjay Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The petitioner/Union of India has preferred the present writ petition
under Article 226 of the Constitution of India to assail the order dated
29.01.2014 passed by the Central Administrative Tribunal (CAT/ Tribunal)
in O.A. No.3424/2012 and the order in review being R.A. No.188/2014
dated 10.10.2014. By the first order dated 29.01.2014, the Tribunal quashed
the petitioners communication dated 09.05.2012 - rejecting the respondents
application for compassionate appointment and directed the petitioner to
consider the respondent/applicants case for grant of compassionate
appointment under the scheme. By the second order dated 10.10.2014, the
aforesaid review application preferred by the petitioner was dismissed.
W.P.(C.) No.9008/2014 Page 1 of 12
2. The respondent/applicants father Late Shri Suresh Chand Sharma died
in harness on 15.08.2008. During his service, the respondent's father had
two wives. The respondent/applicant is the son of the second wife. After
the demise of his father, the applicant made an application for grant of
compassionate appointment on 10.10.2008, followed by two reminders. The
petitioner rejected the respondents application vide order dated 18.09.2009
on the ground that the deceased railway servant married the applicant's
mother Smt. Vijaya Kumari without taking any permission from the
petitioner. The petitioner further stated that the first wife of the deceased
railway servant viz. Smt. Raj Kumari had also applied for appointment on
compassionate grounds and her claim had to be considered.
3. The applicant challenged the order dated 18.09.2009 before the CAT
by filing O.A. No.2426/2010 which was disposed of on 17.08.2010 with the
observation that the first wife Smt. Raj Kumari being over 60 years of age,
was not eligible for compassionate appointment. The CAT directed the
petitioner to finalise the matter within two months.
4. The petitioner, thereafter, passed the order dated 16.12.2010 rejecting
the applicants claim for compassionate appointment on the ground that
where a railway employee died in harness leaving more than one widow and
their children, the settlement dues have to be shared by both the widows in
terms of the Court orders, or otherwise on merits of each case. The
petitioner also stated that so far as appointment on compassionate ground to
the second widow and/or her children is concerned, the same could not be
considered unless the administration had permitted the second marriage in
special circumstances taking into account the personal law, etc. The
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petitioner further stated that in the case of the applicant's father, no such
permission had been granted and, therefore, the second marriage with the
applicant's mother had not been recognized.
5. The applicant preferred O.A. No.1533/2011 to assail the order dated
16.12.2010. The same was disposed of on 06.05.2011 requiring the
applicant to submit a fresh representation, which was required to be decided
within a period a four weeks. In compliance with the said order dated
06.05.2011, the petitioner passed a speaking order on 18.07.2011, holding
that the applicants application for compassionate appointment was not
covered by the railway board circular.
6. Once again, the applicant preferred O.A. No.2902/2011 to assail the
order dated 18.07.2011. The CAT granted an opportunity to the applicant to
establish that the marriage of his mother with the deceased railway servant
was recognized by the railways, and that the railways had acted in
accordance with the same for other purposes like payment of terminal
benefits as well as CGEIS and provident fund. If that were the case, the
CAT held that it was immaterial whether they had given permission for the
second marriage in writing, or not. The petitioner again rejected the
respondents claim vide order dated 09.05.2012, leading to the filing of the
aforesaid OA by the applicant.
7. The CAT while allowing the OA placed reliance, inter alia, on
Rameshwari Devi v. State of Bihar & Ors., (2002) 2 SCC 431, and the
judgment of the Calcutta High Court in Namita Goldar & Anr. V. Union of
India & Ors., 2010 (3) SLR 57. In Rameshwari Devi (supra), the Supreme
Court held that the second marriage during the subsistence of the first
W.P.(C.) No.9008/2014 Page 3 of 12
marriage may be illegal, but the children born out of such second marriage
are legitimate and are entitled to the estate of the father. The Supreme Court
placed reliance on Section 16 of the Hindu Marriage Act. In para 14 of the
said decision, the Supreme Court held as follows:
"It cannot be disputed that the marriage between Narain Lal
and Yogamaya Devi was in contravention of Clause (i) of
section 5 of the Hindu Marriage Act and was a void marriage.
Under Section 16 of this Act children of a void marriage are
legitimate. Under the Hindu Succession Act, 1956, property of
a male Hindu 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, ad the Schedule to
the Hindu Succession Act, 1956). Yogamaya 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 Yogamaya 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...."
8. In Namita Goldar (supra), the deceased employee married for the
second time during the lifetime of the first wife, as there was no issue from
the first marriage. The employee died in harness leaving behind two
widows and four children of the second wife. The first wife died shortly
after the death of the deceased employee, and the family pension and other
retiral benefits were disbursed to the second wife and her children.
Compassionate appointment was claimed by the eldest son of the second
wife, as the first wife was issueless. Following the decision in Rameshwari
Devi (supra), the Calcutta High Court allowed the claim and, inter alia,
observed as follows:
W.P.(C.) No.9008/2014 Page 4 of 12
"5. In view of the decision of the Apex Court in the case of
Rameshwari Devi (supra), the children of the second wife
cannot be treated as illegitimate and referring to Section 16 of
the Hindu Marriage Act specifically held that children of a void
marriage are legitimate.
6. In view of the law as settled by the Supreme Court, no
distinction can be made amongst the children of the first and
second wife of a deceased employee. In the present case,
however, first wife was issueless and died shortly after the
death of the employee concerned.
7. Therefore, the eldest son of the second wife, namely the
petitioner No.2 herein is entitled to claim appointment of
compassionate ground on account of the sudden death of the
employee concerned.
8. The learned Tribunal, in our opinion, has rightly held
that the claim of the petitioner No.2 herein for compassionate
appointment cannot be turned down on the ground it was done
although the learned Tribunal did not issue any mandatory
direction on the respondents authorities for granting
compassionate appointment to the said son of the second wife,
namely the petitioner No.2 herein and directed the General
Manager, Eastern Railway to refer the matter to the Railway
Board for taking decision. We are, however, of the opinion that
the circular issued by the Railway Board on 2nd January, 1992
preventing the children of the second wife from being
considered for appointments on compassionate ground cannot
be sustained in the eye of law in view of the specific provision
of the Hindu Marriage Act, 1955 and pursuant to the decision
of the Hon'ble Supreme Court in the case of Rameshwari Devi
(supra).
9. In the aforesaid circumstances, the aforesaid circular
issued by the Railway Board on 2nd January, 1992 stands
quashed to the extent it prevents the children of the second wife
from being considered for appointment on compassionate
ground."
W.P.(C.) No.9008/2014 Page 5 of 12
9. Thus, the Calcutta High Court rejected the reliance placed by the
Railways on its circular, which denied consideration for compassionate
appointment to the child of the second wife on the ground that such marriage
was not authorized.
10. The submission of learned counsel for the petitioner is that the second
marriage of the deceased railway employee, namely, late Sh. Suresh Chand
Sharma was not permitted in terms of the railway board circular bearing
no.E(NG)H/91/RC-1/136 dated 02.01.1992, RBB 1/92 and, consequently,
the compassionate appointment could not be granted to the child of the
second wife. He has also placed strong reliance on the judgment of the
Jharkand High Court in M.V.V. Prakash v. Union of India & Ors in WP (S)
No.16/2014 dated 24.07.2014.
11. Learned counsel for the respondent, who appears on advance notice,
supports the impugned order. He submits that the impugned order is fair,
just and reasonable and does not call for interference by this Court in
exercise of its power of judicial review over the orders of the Tribunal. He
places strong reliance on the aforesaid decisions, namely, Rameshwari Devi
(supra) and Namita Goldar (supra).
12. Admittedly, the first widow of the deceased being over aged was not
granted compassionate appointment. The applicant was the eldest son of the
second wife. Merely because the marriage between the deceased
government employee and the applicant's mother was not blessed by the
petitioner - by granting prior permission, does not mean that the
respondent/applicant ceased to be a legitimate child of his late father. In the
light of Section 16 of the Hindu Marriage Act, the status of children born out
W.P.(C.) No.9008/2014 Page 6 of 12
of invalid marriage is protected, and they are considered as legitimate
children of their father. Such children derive all the rights of succession, as
children born out of a legal and legitimate wedlock. This position is
abundantly clear from the decision in Rameshwari Devi (supra).
13. The submission that the marriage between the deceased government
servant and the applicant's mother was not solemnized after prior
permission, is neither here nor there. Since the deceased railway servant
was already married to his first wife, the petitioner could possibly not have
granted permission for his second marriage to the mother of the applicant.
Grant of such permission in a given case would not validate the second
marriage, if the same is in contravention of the law.
14. The decision in Namita Goldar (supra) squarely applies in the facts of
the present case. The Calcutta High Court has held that the circular of the
Railways - relied upon by the petitioner in the present case as well, cannot
be sustained in the light of the provisions of the Hindu Marriage Act, 1956.
That decision, apparently, has attained finality and binds the petitioner. The
petitioner is precluded from re-agitating the same issue again and again.
15. The decision in M.V.V. Prakash (supra) is founded upon an earlier
judgment of a Division Bench of the same Court in the case of Basanti Devi
in WP (S) No.4461/2008. In Basanti Devi (supra), the Division Bench of
the Jharkand High Court differed from the view taken by the Division Bench
of the Patna High Court in the case of Purushottam Kumar v. State of
Bihar, 2005 (3) PLJR 458. While doing so, the Division Bench in Basanti
Devi (supra) observed as follows:
W.P.(C.) No.9008/2014 Page 7 of 12
"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 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
W.P.(C.) No.9008/2014 Page 8 of 12
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."
16. We have considered the submission of learned counsel for the
petitioner as also the decision of the Division Bench of the Jharkand High
Court in M.V.V. Prakash (supra) in the light of the judgment of the
Supreme Court in Rameshwari Devi (supra) and that of the Calcutta High
Court in Namita Goldar (supra). It clearly emerges that there is difference
of opinion between the Calcutta High Court and the Patna High Court on the
one hand, and that expressed by the Jharkand High Court on the other hand.
Once the law declares children born out of a void or illegitimate marriage to
be legitimate, no policy or circular of the State can seek to create a
distinction or discriminate on the basis of the status of the wedlock (i.e. valid
or invalid), out of which a child is born. To permit the same would be to
bring in distinction and discrimination through the backdoor, and nullify the
effect of Section 16 of the Hindu Marriage Act.
17. The purpose of grant of compassionate appointment is to provide
immediate succor to the dependant family of the deceased government
servant. It does not matter whether the family of the deceased government
servant stems from a legitimate or an illegitimate wedlock. The factum of
dependence, and the need for urgent relief - in the form of compassionate
appointment, to the dependants of the deceased government servant is in no
manner diminished, merely because the wedlock of the deceased
government servant with his spouse may be illegitimate or void. At the
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highest, what could be said is that the spouse of the deceased government
servant, whose marriage may be illegitimate or void, would not be in a
position to stake a claim for himself or herself to claim compassionate
appointment. But that cannot be said about a child born out of such wedlock
since, in law, he is a legitimate/valid child - though born out of an
illegitimate or void marriage.
18. In our view, therefore, the judgment of the Calcutta High Court in
Namita Goldar (supra), which follows the decision of the Supreme Court in
Rameshwari Devi (supra) lays down the correct position in law, and we
prefer to follow the same over the decisions of the Jharkand High Court,
aforesaid.
19. Article 16(2) prohibits discrimination in matters of public
employment on various grounds, including "descent".
"16.(1) Equality of opportunity in matters of public
employment - There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any
office under the State.
(2) No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any
employment or office under the State.
XXXXXX XXXXXX XXXXXX"
W.P.(C.) No.9008/2014 Page 10 of 12
20. While the Supreme Court decisions on Article 16(2) were in the
context of rules which restricted employment opportunities within families,
or in the context of the constitutionality and scope of compassionate
appointment itself, we find that there is nothing in the text of Article 16(2)
that precludes its application to the present case. In fact, textually, the
provision suggests that discrimination against the children born to a second
wife amounts to discrimination on the basis of 'descent', since children born
to the first wife are not disadvantaged in a similar way.
21. This interpretation is supported by a contextual understanding of
Article 16(2). The prohibited grounds under Article 16(2) include "religion,
race, caste, sex, descent, place of birth, residence." There are two common
threads running through these terms, which explain the principle underlying
framers' choice. The first is that they form markers of personal identity that
an individual is either born into and are beyond his control to change.
Secondly, these markers of group identity, such as sex or caste were
historically the reasons for widespread and pervasive discrimination in
Indian society, especially in the context of equality of opportunity in the
economic and social sphere. In specifying that these grounds could no
longer serve as justifications for unequal distribution of benefits and
burdens, the framers were trying to remedy centuries of historical wrongs.
22. The Court is of opinion that - apart from being textually sound -
understanding 'descent' in terms of prohibiting discrimination against a
person on the basis of legitimacy, or on the basis of his mother's status as a
first or second wife, fits within the principles underlying Article 16(2). Not
only is one's descent, in this sense, entirely beyond one's control (and
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therefore, ought not to become a ground of State-sanctioned disadvantage),
but it is also an established fact that children of 'second' wives, whether
counted as illegitimate or legitimate, have often suffered severe social
disadvantage. Another significant observation here is that at the entry level -
"legitimacy" is and cannot be a ground for denial of public employment. For
these reasons, this Court is of the opinion that the Petitioner's regulation
violates Article 16(2).
23. For the aforesaid reasons, we find no merit in the petition, which is
accordingly dismissed.
VIPIN SANGHI, J.
S. RAVINDRA BHAT, J DECEMBER 19, 2014 sr W.P.(C.) No.9008/2014 Page 12 of 12