Allahabad High Court
Shivam Sonkar And Another vs State Of U.P. And Others on 1 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. WRIT - A No. - 9332 of 2023 Shivam Sonkar and another ..Petitioners Versus State of U.P. and others ..Respondents Counsel for Petitioners: Mr. Jai Shankar Pandey, Advocate Counsel for Respondents: Mr. Rajesh Kumar Tiwari, Addl. Chief Standing Counsel for respondent No.1 Mr. R. M. Saggi, Advocate for respondent Nos. 2, 3 and 4 Mr. Akhilesh Kumar Ojha, Advocate for respondent Nos.5 and 6 Court No. - 49 HON'BLE J.J. MUNIR, J.
1. This writ petition is directed against an order of the General Manager, Water Works Department, Nagar Nigam, Kanpur dated 11.04.2023, rejecting the first petitioners claim for compassionate appointment. So far as petitioner No.2 is concerned, she seeks a mandamus commanding the General Manager, Water Works Department, Kanpur Nagar Nigam to pay her post retiral benefits on account of her husbands services, including gratuity, provident fund, as also family pension, together with interest accrued on sums of money due under different heads.
2. It is not in dispute that Kripa Shankar, the first petitioners father and the second petitioners husband, was employed as a Beldar in the Water Works Department (for short, the Water Works) within the establishment of the Nagar Nigam, Kanpur (for short, the Nigam). There is also no issue about the fact that he died in harness on 18.06.2021. It is not disputed either that in Kripa Shankars service-book, the names of the first petitioner and the second petitioner are recorded as son and wife, respectively. It is also not in dispute that the two petitioners included, in Kripa Shankars service-book, five members of his family are shown. They are: (1) Smt. Ram Kumari (wife), (2) Smt. Rekha Sonkar, daughter (married), (3) Smt. Surajmukhi, daughter (married), (4) Shivam Sonkar, son, and (5) Shiva Sonkar, son.
3. Upon Kripa Shankars demise, the second petitioner, Ram Kumari, applied for payment of death-cum-retirement benefits on account of her husbands service, enclosing therewith a copy of Kripa Shankars death certificate dated 12.08.2021. Also filed along with the claim, was a family membership certificate issued by the Sub-Divisional Officer, Sadar, Kanpur Nagar dated 14.05.2022, where the five family members of Kripa Shankar were shown. The first petitioner, on his part, applied for compassionate appointment on 30.05.2022 to the General Manager, Water Works as the family were reeling under a tremendous financial crisis and on the verge of starvation. The application for compassionate appointment was supported with the family membership certificate, above mentioned, the first petitioners fathers death certificate and affidavits of no objection from the other family members, to wit, Shiva Sonkar, Smt. Surajmukhi and Smt. Rekha. The first petitioners case is that there is no legal impediment in considering his case for compassionate appointment. However, the Executive Engineer (Headquarters), Water Works, vide order dated 07.06.2022, rejected the first petitioners claim for compassionate appointment on the specious grounds that the General Manager, Water Works, had declined the claim because the family membership certificate dated 14.05.2022 was not valid for the purpose of government service.
4. The petitioners challenged the said order, moving this Court vide Writ-A No.2587 of 2023. This Court quashed the order dated 07.06.2022 on the ground that the first petitioner being recorded as the deceaseds heir in the service-book, the family membership certificate dated 14.05.2022 was a document informative in nature, but not relevant. The Executive Engineer was directed to pass fresh orders, ignoring paragraph No.3 of the family membership certificate dated 14.05.2022. After the said order was served upon the General Manager, Water Works, he again rejected the first petitioners claim for compassionate appointment on ground that the deceased employee had a first wife, of whom he had two children, Arti Sonkar and Sani Sonkar and that the said fact had not been disclosed in the family membership certificate produced by the first petitioner in support of his claim. The General Manager also relied on Arti Sonkars Aadhaar Card, PAN Card, her mark-sheet of BA IIIrd year produced by Arti Sonkar and Sani Sonkar, allegedly born to the deceased of his first wife, all of which showed late Kripa Shankar as their father, besides the family membership certificate dated 14.05.2022 (wrongly mentioned as 17.05.2022) issued by the Sub-Divisional Officer, Sadar, Kanpur Nagar, which too shows Kripa Shankars name as the father of Arti Sonkar and Shiva Sonkar. The General Manager, on occasion, directed the petitioner to secure a succession certificate from the Court of competent jurisdiction.
5. So far as the second petitioners claim to post retiral benefits due on account of the deceaseds services is concerned, the respondents did not move to pay the same, apparently on ground that there was a case of the deceased marrying a second time during the lifetime of his first wife, of whom too he had two children. The second petitioners claim was not acknowledged at all.
6. In these circumstances, this writ petition has been moved with a prayer to quash the order, declining the first petitioners claim and seeking a command to the General Manager to consider his case for compassionate appointment on merits. So far as the second petitioner is concerned, she seeks our mandamus, ordering the respondents to pay post retiral dues for the services rendered by her husband, including a family pension, that is payable under the rules.
7. A notice of motion was issued in this case on 03.07.2023. On 25.07.2023, parties having exchanged affidavits, the petition was admitted to hearing. The hearing proceeded forthwith, though adjourned across a number of dates. The matter was heard at length and judgment reserved. The service-book in original, relating to the deceased Kripa Shankar, was summoned vide order dated 13.10.2023, which was produced on 15.12.2023 before the Court and directed to be kept in safe custody with the Registrar General.
8. Heard Mr. Jaishankar Pandey, learned Counsel for the petitioner, Mr. Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel, appearing on behalf of respondent No.1, Mr. R. M. Saggi, learned Counsel, appearing on behalf of respondent Nos. 2, 3 and 4 and Mr. Akhilesh Kumar Ojha, learned Counsel appearing on behalf of respondent Nos.5 and 6. The original records summoned from the respondents were also perused.
9. In the counter affidavit filed on behalf of the Nagar Nigam and the General Manager, Water Works, the stand taken in paragraph No.6 of the affidavit is that the late Kripa Shankar did marry twice in his lifetime, but not during the lifetime of his first wife, Smt. Kalwati. Kripa Shankar solemnized a second marriage, according to these respondents, with Smt. Ram Kumari after Kalawati had passed away. He had two children born of his first wife, Kalawati to wit, Arti Sonkar and Sani Sonkar. Ram Kumari, his second wife, bore him four children, to wit, Rekha, Surajmukhi, the daughters, besides Shivam and Shiva, the sons. This is the position of the deceaseds family, admitted to the employers, represented by respondent Nos.3 and 4. In paragraph Nos.17, 18 and 19, the stand that has been taken by the General Manager, Water Works and the Nagar Nigam, to wit, the employers, is that the family membership certificate produced by the first petitioner, Shivam Sonkar, being incomplete in the sense that it did not mention Arti Sonkar and Sani Sonkar, the deceaseds children born of his first wife and a succession case, being Misc. Case No.586/70 of 2022, pending before the Civil Judge (Sr. Div.), Kanpur Nagar, the first petitioners claim for compassionate appointment could not be considered. The first petitioner was asked to produce a succession certificate in his favour.
10. A separate counter affidavit has been filed on behalf Arti Sonkar and Sani Sonkar, described as Sunni Kumar in the array of parties. In this affidavit, the stand taken is that Smt. Kalawati was the lawfully wedded wife of Kripa Shankar. No divorce by a decree of Court took place between Smt. Kalawati and the deceased employee. Ram Kumari and Kripa Shankar were never married and she has been described by these respondents by words that were in yesteryears well accepted in daily life and commonplace in legal parlance, but are now the objects of a frown of disapproval, though still there in the English Dictionary. We would not, therefore, mention them, but say that to Ram Kumari, these respondents have ascribed the status of a woman, who lived with the deceased away from wedlock. In paragraph No.8, Kalawati has been asserted to be the only person entitled to receive the deceaseds post retiral benefits, and after her, her heirs and LRs, that is to say, Arti Sonkar and Sani Sonkar, respondent Nos.5 and 6.
11. What we notice from the counter affidavit filed by respondent Nos.5 and 6 is that though these respondents assert that the deceased never married Smt. Ram Kumari, but they do not disclose Smt. Kalawatis date of death. On the other hand, the employers, who would generally know the affairs regarding the family of their employee to the extent relevant to his employment, have taken the stand that the deceased married Smt. Ram Kumari after his first wife, Kalawatis demise. If this were not so, they would not have accepted a nomination form for the payment of post retiral benefits in favour of Smt. Ram Kumari, which is there on record, that we have perused. It is difficult in this state of things to conclude in favour of what respondent Nos.5 and 6 say that the deceased never married Smt. Ram Kumari, and that the first petitioner together with his three siblings were born outside wedlock. At least, this is the apparent state of things, which the employers have accepted. It is the policy of the law to presume in favour of legitimacy, so far as marriage and children, born of an ostensible wedlock, are concerned.
12. Reference in this connection may be made to Shiramabai v. Captain, Record Officer for O.I.C. Records, Sena Corps Abhilekh, Gaya, Bihar State and another, 2023 SCC OnLine SC 1026. The facts in Shiramabai (supra), that have a strong bearing on the principle laid down, squarely applicable here, also have a striking similarity to the facts in this case. The facts in Shiramabai can best be recapitulated in the words of their Lordships as these figure in the report. These read:
4. Late Subedar Bhave was enrolled in the Army in the year 1960 on 21st July, 1960. On 17th July, 1972, he got married to one Smt. Parvati who died in about two and a half years on 26th January, 1975. Thereafter, the deceased got married to one Smt. Anusuya on 17th March, 1975. During the subsistence of his marriage with Anusuya, he married the appellant no. 1 herein on 21st February, 1981. Appellants No. 2 and 3 are the offspring of the deceased and appellant no. 1. On 25th January, 1984, the deceased was discharged from service at his request and was granted service pension at the rate of Rs. 376/- (Rupees three hundred seventy six only) per month. On 15th November, 1990, the deceased and Anusuya were granted a decree of divorce by mutual consent M.C. No. 21/1990 and he paid a lumpsum amount of Rs. 15,000/- (Rupees fifteen thousand only) to her. Thereafter, the deceased approached the respondent No. 2 for deleting the name of Anusuya and endorsing the name of the appellant No. 1 in the PPO. He also submitted a certificate dated 08th October, 1994 issued by the Village Sarpanch, Gram Panchayat Bahirewadi, certifying that he and the appellant No. 1 had got married along with a copy of their wedding card as proof of the marriage.
5. Subedar Bhave expired in the year 2001 on 12th January, 2001. Thereafter, appellant No. 1 approached the respondents for grant of family pension vide application dated 09th July, 2001. The said request was, however, rejected by the respondents vide letter dated 01st October, 2001 on the ground that the deceased had got divorced in November, 1990, whereas the appellant No. 1 claimed to have got married to him in February, 1981, during the subsistence of the earlier marriage.
6. In 2005, the appellants instituted a civil suit for declaration praying inter alia for issuing directions to the respondents to disburse the pensionary benefits payable on the demise of the deceased, Subedar Bhave. As noticed above, the trial Court decreed the said suit in favour of the appellants and held that they were entitled to receive the terminal benefits of the deceased, particularly, since no claim was ever laid on the said amount by his ex-wife Anusuya. Aggrieved by the said order, the respondents preferred an appeal (Regular Appeal No. 70 of 2008), which was allowed and the judgment and decree passed by the learned Civil Judge was set aside. The said order was assailed by the appellants in a Regular Second Appeal No.6079 of 2010 that came to be dismissed by the High Court. Subsequently, on the basis of the Review Application, the court clarified vide order dated 16th October, 2014 that the appellants No. 2 and 3 herein would be entitled to the estate of Late Subedar Bhave which is in the custody of the respondents.
13. The question, that arose for consideration in Shiramabai, is culled out in paragraph 11 of the report, which reads:
11. We have heard the arguments advanced by learned counsel for the parties, perused the records and the impugned judgment. The limited issue that requires to be answered is whether the appellants would be entitled to claim pensionary benefits of Late. Subedar Bhave in the facts of the instant case where he had got married to the appellant No. 1 during the subsistence of his marriage with Anusuya, but, subsequently a decree of divorce was passed, dissolving the said marriage.
14. In answering the question, their Lordships of the Supreme Court held:
14. It is no longer res integra that if a man and woman cohabit as husband and wife for a long duration, one can draw a presumption in their favour that they were living together as a consequence of a valid marriage. This presumption can be drawn under Section 114 of the Evidence Act that states as follows:
114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
15. In this above context, we may refer to Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy, 1927 SCC OnLine PC 51, where the Privy Council observed thus:
..where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.
xxxxxxxxx The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by affectionate provisions, his wife and children. The evidence of the Registrar of the District shows that for a long course of years the parties were recognized as married citizens, and even the family functions and ceremonies, such as, in particular, the reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostessall such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody.
16. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan, 1929 SCC OnLine PC 21, it was again observing by the Privy council that:
.The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years
17. Similarly, in Badri Prasad v. Dy. Director of Consolidation, (1978) 3 SCC 527, this Court held as follows:
.A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy..
18. In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi, (1994) 1 SCC 460, this Court held as under:
4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable (see Gokal Chand v. Parvin Kumari, (1952) 1 SCC 713).
19. It is true that there would be a presumption in favour of the wedlock if the partners lived together for a long spell as husband and wife, but, the said presumption is rebuttable though heavy onus is placed on the one who seeks to deprive the relationship of its legal origin to prove that no marriage had taken place (refer : Tulsa v. Durghatiya, (2008) 4 SCC 520).
22. In Kattukandi Edathil Valsan's Case (supra), citing the abovesaid decisions and relying on Section 114 of the Evidence Act, this Court held in the facts of the said case that there was a presumption of the marriage between the parents of the plaintiffs on the ground of their long cohabitation status, entitling their offspring to claim their share in the suit schedule property.
23. It can be discerned from the aforesaid line of decisions that the law infers a presumption in favour of a marriage when a man and woman have continuously cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence. When there is any circumstance that weakens such a presumption, courts ought not to ignore the same. The burden lies heavily on the party who seeks to question the cohabitation and to deprive the relationship of a legal sanctity.
24. In the instant case, if the period upto the year 1990 was to be excluded as the marriage between Late Subedar Bhave and Anusuya had got dissolved only on 15th November, 1990, fact remains that even thereafter, the deceased had continued to cohabit with the appellant No. 1 for eleven long years, till his demise in the year 2001. The appellant No. 1 was the mother of two children born from the relationship with the deceased, namely, appellants Nos. 2 and 3. Appellants No. 2 and 3 have been held entitled to the estate of the deceased by virtue of the order passed by the High Court on the Review application moved by them. In the above background, a presumption ought to have been drawn in favour of the validity of the marriage between the deceased and the appellant No. 1, more so, when during his life time, the deceased had approached the respondent authorities for seeking deletion of the name of his previous wife - Anusuya from his service record and for endorsement of the name of the appellant No. 1 therein, which was duly acted upon by the respondents vide letter dated 05th July, 1999. It is also not in dispute that the ex-wife did not claim any pension from the respondents on the demise of Subedar Bhave.
15. The facts, upon which the principle in favour of sustaining the validity of a marriage and the legitimacy of children born to parties, is attracted, would apply with greater force here. The reason is that in Shiramabai, there was no dispute on facts that the marriage between Shiramabai and Subedar Pundalik Bhave was solemnized in February, 1981, whereas marriage between the Subedar and his wife, Anusuya, was undone by a decree of divorce passed in November, 1990. The marriage between Subedar Bhave and Shiramabai would certainly have been void when solemnized in view of Section 5 of the Hindu Marriage Act, 1955 (for short, 'the Act of 1955'), but with passage of time and consistent cohabitation as man and wife, with no objection from Anusuya till the decree of divorce was passed, and until time that Subedar Bhave died, led the law to lay to lean in favour of holding legitimacy of the marital bond. In the present case, we say the principle applies on surer footing, because on one hand, there is no specific date mentioned, on which petitioner No.2 married the deceased Kripa Shankar, and, on the other, respondent Nos.5 and 6, the children of the deceaseds first wife, Kalawati, do not mention the date of her demise. It is, therefore, not a case where on stated facts, proven by evidence or not disputed at all, the deceased married Ram Kumari, during the lifetime of his first wife and subsistence of that marriage. As already remarked, the respondents, who are presumed to be in some know of the affairs of their employees, accept the position that the deceased had married Ram Kumari after his first wife, Kalawatis death.
16. The fact that the marriage between the two continued over a long period of time is beyond cavil because the children of parties, to wit, Ram Kumari and the deceased, Kripa Shankar, were all adults in the third decade of their life. To regard a marriage, as old as this, and, that too, in the absence of facts, showing that the deceased actually married Ram Kumari while his first wife, Kalawati was alive, would be to do violence to that principle of great moment, which legitimizes the institution of the family and saves it from legal disapproval for the want of evidence aliunde. This is a principle of the law, which guides society and lends stability to the institution of marriage, where a superficial vantage of the society would compel it to look down upon with disdain at a marital bond of some uncertain or doubtful origin. The principle must, therefore, be given effect to with full flourish and extended to all logical consequences.
17. Here, it must be added that it is respondent Nos.5 and 6, who, in unison, say that the second petitioner and the deceased were never married. In the face of the respondent employers accepting the marriage and the second petitioner asserting the status, if the 5th and the 6th respondents were to assail it to any consequence, they ought have instituted a suit for declaration and proved the status, which they seek to establish by producing evidence before the Court at the trial of such suit.
18. It must also be remarked here that so far as the succession case goes, it is a statutory proceeding under Section 372 of the Indian Succession Act, 1925 (for short, 'the Succession Act') with a very limited scope and consequence. A person, in whose favour a succession certificate is issued, establishes no title in himself to receive the moneys, mentioned in the schedule to the certificate. The certificate does not confer any beneficial interest upon its holder to utilize the money that he receives under it as his own property. A certificate of this kind, which is limited in its scope to receive from a third party movables, including money of another, who is no more, is valid for the purpose of giving a legal discharge to that other against the rightful claimants to the money and other movables. In support of this principle, reference may be made to Banarasi Dass v. Teeku Dutta (Mrs) and another, (2005) 4 SCC 449, where it was held:
14. The main object of a succession certificate is to facilitate collection of debts on succession and afford protection to the parties paying debts to the representatives of deceased persons. All that the succession certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A succession certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a certificate under the Act, or is compelled by the decree of a court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. .
19. The 5th and 6th respondents, therefore, would not at all be better placed in establishing their claim of being the only children of the deceased employee, entitled to claim the post retiral benefits on the basis of a succession certificate. Here, it must also be remarked that a succession certificate and a nomination stand at par, in that, that both do not confer upon the person, nominated or the holder of a certificate, beneficial interest in the movables, money or securities that he receives, held by third parties on behalf of the deceased. The nominee or the holder of a certificate may hold beneficial interest too in the whole or a part that he receives under it. But, the beneficial interest must exist independent of the nomination or the succession certificate. A fortiori, if a nomination is already there in favour of the second petitioner, there is little scope for parties to vie for a succession certificate.
20. In principle, what would clinch the issue about the entitlement to receive the whole or a share in the post retiral benefits, would be a suit by the 5th and 6th respondents to establish their case. But, given the fact that the deceaseds wife, the second petitioner, is there, who is also the nominee, leaves slender scope for the children, either born of the first wife or the second, to stake claim to the post retiral benefits on account of the deceaseds services in the presence of the wife (the widow). These have to go almost universally under all service rules to the widow; not the children.
21. In this conspectus of facts and the law, we do not have the slightest of doubt that the second petitioner here, who is also the recorded nominee in the deceaseds service papers, is entitled to receive all post retiral benefits, including family pension on account of the deceased employees services.
22. This takes us to the claim of the first petitioner, Shivam Sonkar, which relates to the consideration of his case for compassionate appointment. The claim of the first petitioner is based on a case about the deceased leaving behind a family of five souls a widow, two married daughters and two dependent sons. There is nothing said by the first petitioner about the deceaseds first wife or the two siblings of half blood. Respondent Nos.5 and 6 have come forward with a case, where they say, it is their mother, who was the deceaseds wife, whereas the first petitioner's mother never had matrimonial status. According to these respondents, the first petitioner's mother was never the deceaseds wife and he is not a legitimate child. We have already considered this issue in the earlier part of this judgment and held the first petitioner's mother to be the lawfully wedded wife of the deceased. Once, the first petitioner's mother has been held to be the deceaseds wife, his claim for a consideration of his candidature for compassionate appointment cannot be held not maintainable.
23. The remark in the order impugned, requiring the petitioner to obtain a succession certificate as a condition precedent to the consideration of his claim for compassionate appointment, is misconceived. The General Manager could not have committed a more grave error than think that the first petitioner's claim for compassionate appointment would depend upon the said petitioner securing a succession certificate under Section 372 of the Succession Act. Clearly, a succession certificate issued under the Succession Act entitles the holder of the certificate, as already remarked, to collect the deceaseds outstandings, that is to say, debts and securities in the hands of third parties. It is not at all something, which has any relation to the entitlement of a dependent of the deceased to compassionate appointment under the employers' policy expressed in administrative circular or rules. The opinion, held by the General Manager, is the result of his utter ignorance of the law and more than that, the ill-found confidence amongst educated persons, who are lay as distinguished from legal, in forming opinions on purely legal matters without trained advice.
24. The Madhya Pradesh High Court was confronted with a similar situation in Pawan Kumar Masurkar v. State of M.P. and others, I.L.R. 2024 M.P. *196. The question, which was considered by the Court, is expressed in paragraph 5 of the judgment in the following words:
whether a person can seek succession certificate in regard to grant of compassionate appointment inasmuch as that issue is to be determined in terms of the provisions contained in Sections 370 and 374 of the Indian Succession Act, 1925.
25. After doing a survey of the relevant provisions in Part X of the Succession Act, Vivek Agarwal, J. held:
11. Thus, when these aspects are examined, then it is evident that as per Section 374 of the Indian Succession Act, the District Judge granting a certificate is required to specify the "debts and securities" setforth in the application for the certificate and by no stretch of imagination compassionate appointment is either a 'debt' or a 'security' as defined in the Indian Succession Act. Therefore, issuance of a succession certificate by the concerned Civil Judge may be an act of naivety but it will not bind the High Court while considering the application for grant of compassionate appointment.
26. In the considered opinion of this Court, therefore, the remark and the consideration carried in the impugned order, to the effect that the petitioner's claim is not maintainable in the absence of a succession certificate secured by him from the competent Court, is manifestly illegal.
27. Now, quite apart from the consideration that the first petitioner's mother has been held by us to be the deceased Kripa Shankar's wife, even if we assume that she was not the lawfully wedded wife of the deceased, as asserted by respondent Nos.5 and 6, the right to a consideration for compassionate appointment cannot be denied to a child born outside wedlock, who is regarded as legitimate, even if the marriage is void under Section 11 of the Act of 1955, by virtue of sub-Section (1) of Section 16 of that Act. The denial of right to a child for consideration under the compassionate appointment scheme, whose mother's marriage to his father is void under Section 11 of the Act of 1955, has been held to be violative of Article 14 of the Constitution by the Supreme Court in Union of India and another v. V.R. Tripathi, (2019) 14 SCC 646. In V.R. Tripathi (supra), confronted with a circular of the Railways that disentitles children born of a second marriage to employees, who had solemnized that marriage during the lifetime of the first wife, the Supreme Court held:
15. In sub-section (1) of Section 16, the legislature has stipulated that a child born from a marriage which is null and void under Section 11 is legitimate, regardless of whether the birth has taken place before or after the commencement of amending Act 68 of 1976. Legitimacy of a child born from a marriage which is null and void, is a matter of public policy so as to protect a child born from such a marriage from suffering the consequences of illegitimacy. Hence, though the marriage may be null and void, a child who is born from the marriage is nonetheless treated as legitimate by sub-section (1) of Section 16. One of the grounds on which a marriage is null and void under Section 11 read with clause (i) of Section 5 is that the marriage has been contracted when one of the parties had a spouse living at the time of marriage. A second marriage contracted by a Hindu during the subsistence of the first marriage is, therefore, null and void. However, the legislature has stepped in by enacting Section 16(1) to protect the legitimacy of a child born from such a marriage. Sub-section (3) of Section 16, however, stipulates that such a child who is born from a marriage which is null and void, will have a right in the property only of the parents and none other than the parents.
16. 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.
17. 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 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.
28. The law laid down in V.R. Tripathi was later on endorsed by a three Judge Bench of the Supreme Court in Mukesh Kumar and another v. Union of India and others, (2022) 14 SCC 161. I had the privilege to follow V.R. Tripathi and Mukesh Kumar (supra) in Kumari Manisha v. State of U.P., AIR Online 2024 ALL 1481. There is, therefore, no worth in the respondents' stand that the petitioner does not have a candidature to consider, even if he is a child born to his father of a marriage solemnized during the lifetime and subsistence of his father's first marriage. These remarks of ours have been made ex abundanti cautela. Once, we have held that the second petitioner or the first petitioner's mother was after all the deceased Kripa Shankar's wife, all objections on that score go, as already remarked.
29. While there would be no difference as regards the maintainability of the first petitioner's candidature for compassionate appointment under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short, 'the Rules of 1974'), the fact that we have held the first petitioner's mother to be lawfully wedded wife of the deceased Kripa Shankar, would attach more weight to that candidature. The reason would be presently shown. Rule 7 of the Rules of the Rules of 1974 reads:
7. Procedure when more than one member of the family seeks employment. - If more than one member of the family of the deceased Government servant seeks employment under these rules, the Head of Office shall decide about the suitability of the person for giving employment. The decision will be taken keeping in view also the overall interest of the welfare of the entire family, particularly the widow and the minor members thereof.
(emphasis by Court)
30. Therefore, if the first petitioner and respondent Nos.5 and 6 were all to stake claim for compassionate appointment, the Head of the Office, that is to say, the General Manager, Water Works, would have to consider the claim in accordance with Rule 7, where he would bear in mind, in particular, the interest of the widow, to wit, petitioner No.2.
31. Here, possibly unless there is a rival claim by respondent Nos.5 and 6, preferred after the institution of the petition or hereafter, Rule 7 of the Rules of 1974 may not come into play at all. The reason is that from the state of pleadings, it nowhere appears that respondent Nos.5 and 6, or either of them, have staked their own claim for compassionate appointment. Theirs' has been just a case of resisting the first petitioner's claim for compassionate appointment; not canvassing their own. If, however, their claim is there and made in accordance with rules within the limitation prescribed, the claim of the first petitioner and those of respondent Nos.5 and 6, or one of them, whoever comes up, would have to be considered and dealt with by the General Manager in accordance with Rule 7 of the Rules of 1974.
32. In the totality of circumstances, this petition must succeed.
33. In the result, this writ petition succeeds and is allowed. The impugned order dated 11.04.2023 passed by the General Manager, Water Works, respondent No.3, is hereby quashed. A mandamus is issued to the General Manager, Water Works, to consider the claim of the first petitioner and also of respondent Nos.5 and 6, if there is one made in accordance with law, bearing in mind the guidance in this judgment and pass orders regarding compassionate appointment within a period of two months of the receipt of a copy of this order by the General Manager, Water Works. A mandamus is further issued to the General Manager as well as the Nagar Ayukt, Nagar Nigam, Kanpur Nagar, to ensure amongst themselves, payment to the second petitioner of post retiral benefits, including pension, gratuity, leave encashment, group insurance and provident fund, due on account of her husband Kripa Shankar's services, together with simple interest at the rate of 6% per annum, within a period of two months of receipt of a copy of this order. The second petitioner shall be paid current family pension forthwith.
34. There shall be no order as to costs.
35. Let the original service-book and other records be returned to Mr. R.M. Saggi, learned Counsel appearing on behalf of respondent Nos.2, 3 and 4, for its onward and safe transmission to the Nagar Nigam, Kanpur Nagar.
36. Let a copy of this order be communicated by the Registrar (Compliance) to the Nagar Ayukt, Nagar Nigam, Kanpur Nagar and the General Manager, Water Works Department, Nagar Nigam, Kanpur Nagar.
(J.J. Munir,J.) September 01, 2025 Anoop