Patna High Court
The Bihar State Electricity Board And ... vs Chadra Shekhar Paswan on 18 April, 2019
Equivalent citations: AIRONLINE 2019 PAT 370, 2019 LAB IC 1942, (2019) 2 ESC 678, (2019) 2 PAT LJR 500, 2019 (3) KLT SN 35 (PAT), (2019) 4 SERVLR 281
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh, Birendra Kumar, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1305 of 2013
In
Civil Writ Jurisdiction Case No.9329 of 2012
======================================================
1. The Bihar State Electricity Board
2. The Chairman Bihar State Electricity Board, Vidyut Bhawan, Patna.
3. The Secretary Bihar State Electricity Board, Vidyut Bhawan, Patna.
4. The Joint Secretary Bihar State Electricity Board, Vidyut Bhawan, Patna.
5. The General Manager- Cum- Chief Engineer Bihar State Electricity Board,
Vidyut Bhawan, Patna.
6. The Electrical Executive Engineer Electric Supply Division, Jhanjharpur,
Distt- Madhubani.
7. The Assistant Electrical Engineer Electric Supply Sub- Division, Phulparas,
Madhubani.
8. The Regional Information Officer Mithila Electric Suppy Area, Darbhanga.
... ... Appellant/s
Versus
1. Chadra Shekhar Paswan S/O Late Mote Mal Pashwan Resident Of Village-
Raiyam West, Police Station- Bhairav Asthan, Distt- Madhubani.
2. The Joint Secretary, Personnel And Administration Reforms Department
Govt. Of Bihar, Patna.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 1608 of 2014
In
Civil Writ Jurisdiction Case No.9329 of 2012
======================================================
The State Of Bihar through Secretary, General and Administrative
Department, Government of Bihar, Patna.
... ... Appellant/s
Versus
1. Chandra Shekhar Paswan S/O Late Motemal Paswan Resident of vill-
Raiyam West,P.S-Bhairav Asthan,Distt,-Madhubani
2. The Bihar State Electricity Board, through its Chairman,Vidyut Bhawan,
Patna
3. The Chairman, Bihar State Electricity Board,Vidyut Bhawan,Patna
4. The Secretary,Bihar State Electricity Board,Vidyut Bhawan, Patna
5. The Joint Secretary,Bihar State Electricity Board,Vidyut Bhawan,Patna
6. The General Manager-cum-Chief Engineer, Bihar State Electricity
Board,Vidyut Bhawan, Patna
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
2/54
7. The Electrical Executive Engineer, Electric Supply Division, Jhanjharpur,
Distt.-Madhubani
8. The Assistant Electrical Engineer Electric Supply Sub -Division Phulparas,
Madhubani
9. The Regional Information officer, Mithila Electric Supply Area, Darbhanga
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 11445 of 2010
======================================================
Prakash Kumar Rai Minor S/O Late Ganesh Rai Under The Guardianship Of
Her Mother Nanhaki Devi, W/O Late Ganesh Rai R/O Vill.P.O.- Bhadwar,
P.S. Chandi, Distt.- Bhojpur
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Director General Of Police, Govt. Of Bihar, Patna
3. The Deputy Director General Of Police Personal, Govt. Of Bihar, Patna
4. The Deputy Director General Of Police Special Branch, Patna Bihar, Patna
5. The Inspector General Of Police, Bihar, Patna
6. The Deputy Inspector General Of Police Personal Bihar, Patna
7. The Superintendent Of Police Special Branch, Bihar, Patna
8. The Compassionate Appointment Committee, Police Department, Patna
Bihar
... ... Respondent/s
======================================================
Appearance :
(In Letters Patent Appeal No. 1305 of 2013)
For the Appellant/s : Mr.Anand Kumar Ojha, Adv.
For the Respondent/s : Mr. Ajey Kumar, Adv.
(In Letters Patent Appeal No. 1608 of 2014)
For the Appellant/s : Mr Chittranjan Sinha PAAG- 2
Mr. Shashi Shekhar Kr. Prasad, A.C. to PAAG-2
For the BSEB : Mr. Anand Kumar Ojha,Adv.
Mr. Ashok Kumar Karn, Adv.
For private Respondent : Mr. Ajey Kumar, Adv.
(In Civil Writ Jurisdiction Case No. 11445 of 2010)
For the Petitioner/s : Mr.Aditya Nr.Singh 1, Adv.
For the Respondent/s : Mr.Gp8
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE BIRENDRA KUMAR
and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
CAV JUDGMENT
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
3/54
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date : 18-04-2019
Since common question of law is involved in these
cases, this order shall dispose of all these cases.
2. Under Clause 10 of the Letters Patent, LPA No. 1305
of 2013 has been preferred by the erstwhile Bihar State Electricity
Board (for short 'the Board') against the order dated 13.08.2012
passed by the learned Single Judge in the writ petition bearing
CWJC No. 9329 of 2012.
3. Under Clause 10 of the Letters Patent, LPA No. 1608
of 2014 has been filed by the State of Bihar challenging the
aforestated order dated 13.08.2012 passed by the learned Single
Judge in CWJC No. 9329 of 2012 to the extent whereby circular
no.937 dated 23.06.2005 issued under the signature of the Joint
Secretary, Personnel and Administrative Reforms Department,
Government of Bihar by which a decision had been taken that if a
government servant marries while earlier marriage is subsisting
without the permission of the government, then such spouse and
the ward of such spouse would be disentitled for appointment on
compassionate ground.
4. Under Article 226 of the Constitution of India, CWJC
No. 11445 of 2010 has been filed by the petitioner, a minor, under
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
4/54
the guardianship of his mother Nanhki Devi for directing the
respondents to appoint him on compassionate ground on the post
of Child Police (Bal Arakshi) since his father, namely, Ganesh Rai
died in harness on 23.02.2008. By way of an interlocutory
application, vide I.A. No. 1924 of 2011, he has prayed for adding
further relief challenging the aforesaid circular no. 937, dated
23.06.2005,
5. Facts giving rise to LPA No. 1305 of 2013 will serve the purpose for deciding all these cases. One Mote Mal Paswan, while working as a line man, Electric Supply Sub-Division, Phulparas, Madhubani died on 12.01.2007 due to cardiac arrest. He was initially married to one Jeevachi Devi, who gave birth to two sons. During subsistence of the first marriage, he entered into marriage with another lady Badamia Devi from whom he had four sons and two daughters. Since one of his sons Chandra Shekhar Paswan had passed Class-8 examination, all the heirs of Mote Mal Paswan collectively took a decision that he should apply for appointment on compassionate ground. In view of no objection certificate granted by all the heirs, Chandra Shekhar Paswan submitted his application for appointment on compassionate ground. He was informed vide letter no. 1023 dated 22.07.2011 issued by the Board that the Central Compassionate Committee in Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 5/54 its meeting dated 08.04.2011 rejected his candidature for compassionate appointment in view of circular no. 937 dated 23.06.2005 issued by the Personnel and Administrative Reforms Department, Government of Bihar, Patna by which a decision had been taken that if a government servant gets married again during the life time of spouse without prior permission of the government then such spouse and off-spring of such spouse would be disentitled for appointment on compassionate ground.
6. Being aggrieved by the aforestated order dated 22.07.2011 Chandra Shekhar Paswan filed a writ petition vide CWJC No. 9329 of 2012 praying therein for setting aside the same as also for directing the respondents to consider his case afresh and appoint him without any further delay.
7. By way of an interlocutory application vide I.A. No. 4922 of 2012 in CWJC No. 9329 of 2012, he prayed for adding a further relief challenging the aforestated circular no. 937 dated 23.06.2005. He filed another interlocutory application vide I.A. No. 4610 of 2012 for adding the Joint Secretary Personnel and Administrative Reforms Department, Government of Bihar, Patna, as respondent no.9. Both the interlocutory applications were allowed by the learned Single Judge vide order dated 08.08.2012.
8. After hearing the parties, vide order dated Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 6/54 13.08.2012, the learned Single Judge allowed the writ petition bearing CWJC No.9329 of 2012. The operative portion of the order reads as under :-
"In the said circumstances, the impugned circular/letter dated 23.06.2005 issued by the Government is contrary to the directions given by the High Court in the aforesaid decision. No doubt, the second marriage of a Government employee during the life time of the earlier spouse is prohibited under the rules and regulations of the concerned department and the Board and a second marriage of a Hindu male in the life time of first wife is also prohibited under the personal law and hence it is a settled law that such a spouse will not be entitled to any claim or benefits whatsoever accruing from service of the deceased employee, but the equally settled law is that the children from such spouse shall be entitled to inheritance and benefits, which accrues from his father even if the marriage of the father and mother of such children was not legal as aforesaid. In this connection, reference may be made to a decision of a Division Bench of this Court in case of Purushottam Kumar alias Purooshottam Kumar vrs. State of Bihar and others, reported in 2005(3) P.L.J.R. 458. Apart from the aforesaid propositions of Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 7/54 law, it is not in dispute that the first wife of the deceased employee, namely, Jeevachi Devi died on 20.05.2006 and, thereafter, the mother of the petitioner Badamia Devi was the only wife of the deceased employee till his death on 12.01.2007 and all the children of the said deceased employee from both his wives were together suffering hardship due to the early demise of the bread -earner of the family and hence they jointly approached the authority concerned for appointment of the petitioner on compassionate ground. Considering the aforesaid facts and circumstances, it is quite apparent that the claim of the petitioner for compassionate appointment is legal and justified and he has been wrongly denied the benefit to which he was legally entitled for five long years. Accordingly, this writ petition is allowed, the impugned circular/letter dated 23.06.2005 (Annexure 7) is hereby quashed and consequently the impugned order of the authority dated 22.07.2011 (Annexure 6) is also quashed and the respondents are directed to appoint the petitioner on compassionate ground on the post, to which he is entitled, expeditiously preferably within a period of three months from the date of receipt/production of this order."
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 8/54
9. Being aggrieved by the aforestated order dated 13.08.2012 passed by the learned Single Judge, the Board has filed an intra-court appeal before the Division Bench vide LPA No. 1305 of 2013.
10. The Division Bench vide order dated 09.12.2013 noticing conflicting judgments of this Court, referred the Letters Patent to a larger Bench pursuant to which LPA No. 1305 of 2013 has been placed before us for consideration.
11. For the sake of clarity and convenience, we would like to reproduce the relevant portion of the reference made by the Division Bench in its order dated 09.12.2013 hereunder :-
"The respondent is stated to be the son born to the deceased employee from the second marriage solemnized by him during subsistence of the first marriage. The deceased did not take permission under Rule 23 of the Bihar Government Servant Conduct Rules, 1976 before solemnizing the second marriage during subsistence of the first. It therefore constituted a misconduct. The claim for compassionate appointment by the son born from this second marriage has been denied under a policy decision 23.6.2005 referring to Rule 23 that the personal law had no relationship with the claim for compassionate appointment.
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 9/54 Learned Single judge opined that the policy dated 23.6.2005 was contrary to a Bench decision reported in 2004(4) PLJR 366 (Mustaque Ahmad Vs. State Of Bihar) which primarily directed the State to form a policy only.
Counsel for the Appellants submitted that the claim could not have been allowed in view of the policy dated 23.6.2005 as compassionate appointment was not a matter of right. There is no finding that the policy was arbitrary or irrational before striking it down.
Counsel for the Respondent has relied upon a Division Bench judgment reported in 2005(3) PLJR 458 (Purushottam Kumar @ Purooshattam Kumar Vs. State Of Bihar).
Service jurisprudence mandates by a plethora of precedence that compassionate appointment is an exception to the general rule for appointment in accordance with Article 14 preceded by an advertisement and open merit selection considering that all employment under the State constitutes a national wealth and there must be equal opportunity for all. A compassionate appointee escapes the rigors of selection because of which a more genuine candidate may have to be denied consideration because Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 10/54 the post had been filled up. But, compassionate appointment has been considered as an exception to the same where the particular facts and circumstances of a case may reveal it to be a compelling necessity. It has therefore been held repeatedly that any such appointment has to be strictly and only in accordance with the policy decision of the State and no direction for compassionate appointment can be given de hors the policy. A policy decision can be struck down only if it is arbitrary or irrational based on no cogent justification or classification.
Purushottam Kumar (supra) notices Rule 23 of the Bihar Government Servant Conduct Rules and holds that a marriage solemnized by a government servant in violation of the same constitutes a misconduct. It then holds that in absence of any objection during life time of the deceased it was not relevant for decision of the controversy. Invoking the personal law under the Hindu Marriage Act it grants relief relying on AIR 2000 SC 735 (Rameshwari Devi vs. State of Bihar & Ors) relating to pension claim holding that child born from such second marriage was not illegitimate.
In 2002 (2) PLJR 253 (Sanjeev Kumar Yadav Vs. State of Bihar) the learned Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 11/54 Single Judge was considering a similar claim for compassionate appointment denied under a like policy decision under Rule 23 vide Government Circular No. 13293 dated 5.10.1991 holding that it would be anomalous if the claim for compassionate appointment could originate from the misconduct committed in service by the deceased. This has been followed in another Bench decision reported in 2010 (3) BBCJ 258 (Sarjan Singh vs. State of Bihar). Similar view has been taken in 2004(1) PLJR 37 (Vinod Kumar vs. State of Bihar). Purushottam Kumar (supra) does not consider these pronouncements. In (2008) 8 SCC 475 (State Bank of India vs. Anju Jain), it was held that misconduct in service can be valid justification to deny compassionate appointment.
Judicial discipline, in our opinion, requires that we do not attempt to distinguish Purushottam Kumar (supra) on basis of para 5 of that judgment.
An important element in judicial pronouncements is certainty of the legal position where both the litigant and the State authorities as also the lawyers are made aware of the clear exposition of the law so that no confusion prevails on any aspect for all concerned.
We, therefore, consider it Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 12/54 appropriate that the records be laid before Hon'ble the Chief Justice for the desirability of constituting a larger Bench to lay down the correct law on the issue.
In the meantime operation of the order under appeal shall remain stayed."
12. At this juncture, it would be pertinent to note that subsequently the State of Bihar also challenged the aforestated order dated 13.08.2012 passed by the learned Single Judge in CWJC No. 9329 of 2012 to the extent whereby the aforesaid circular no. 937 dated 23.06.2005 was quashed in LPA No. 1608 of 2014. The said appeal came up for hearing before a Division Bench on 02.02.2015. The Division Bench, vide its order dated 02.02.2015, admitted the appeal and directed the same to be heard along with LPA No. 1305 of 2013.
13. In CWJC No. 11445 of 2010, vide order dated 23.11.2010, the learned Single Judge referred the writ petition to the Division Bench doubting the correctness of the ratio laid down in Purushottam Kumar @ Purooshattam Kumar Vs. State of Bihar, since reported in 2005(3) PLJR 458 whereby after taking into consideration rule 23 of the Bihar Government Servant Conduct Rules, 1976 (for short '1976 Rules'), it was held that though second marriage during lifetime of the first wife is void, Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 13/54 the child of second marriage is legitimate and cannot be denied consideration. Subsequently, the Division Bench, vide order, dated 01.04.2011, referred the writ petition to the Full Bench for consideration of the decision in Purushottam Kumar (Supra). The reference made by the Division Bench vide order dated 01.04.2011 reads as under:-
"In view of the law laid down by the Division Bench in the case of Purushottam Kumar @ Purooshattam Kumar Vrs. The State of Bihar & Ors. (Supra), we are of the opinion that the matter has to be considered by the Full Bench on the question as to whether the children borne out from the second wife of the deceased employee on violation of Rule -23 of the Government Servant Conduct Rules, 1976 are also entitled for such claim of compassionate appointment. Hence the matter has to be referred to the Full Bench for re- consideration of the aforesaid decision.
In that view of the matter, let this matter be placed before Hon'ble the Chief Justice for passing an appropriate order."
14. In these factual backgrounds, these cases have been placed before us.
15. As seen above, in LPA No. 1305 of 2013, the Division Bench while referring the appeal to a larger Bench Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 14/54 noticed the judgment passed by the Supreme Court in General Manager, State Bank of India Vs. Anju Jain, since reported in (2008) 8 SCC 475 wherein it was held that misconduct in service can be held valid justification to deny compassionate appointment. It also noticed that though rule 23 of the 1976 Rules, which puts restrictions on a government servant to enter into or contract a marriage with a person having a spouse living and violation of the same constitutes misconduct, the learned Single Judge in CWJC No. 9329 of 2012 allowed the writ petition relying on the Division Bench judgment in Purushottam Kumar (Supra) whereas in Purushottam Kumar (Supra) pronouncements made in Sanjeev Kumar Yadav Vs. State of Bihar, since reported in 2002 (2) PLJR 253, Sarjan Singh vs. State of Bihar, since reported in 2010 (3) BBCJ 258 and Vinod Kumar vs. State of Bihar, since reported in 2004(1) PLJR 37 holding that it would be anomalous if the claim for compassionate appointment could originate from misconduct committed in service by the deceased were not considered.
16. Thus, on the facts and in the circumstances noted above, the seminal issues for consideration before us are as under:-
(a) Whether the condition imposed by the circular no.
937 dated 23.06.2005 issued under the signature of Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 15/54 the Joint Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna which bars compassionate appointment to the children born from the second marriage of deceased employee is legal and justified?
(b) Whether the condition of prior approval of employer before second marriage becomes sine qua non for grant of compassionate appointment to the children born of second marriage to the deceased employee?
(c) Whether the claim for compassionate appointment can originate from the misconduct committed in service by the deceased employee?
17. Mr. Anand Kumar Ojha, learned counsel appearing for the appellants in LPA No. 1305 of 2013 has submitted that the learned Single Judge while passing the impugned order dated 13.08.2012 in CWJC No. 9329 of 2012 has failed to appreciate that the circular no. 937 dated 23.06.2005, which has been adopted by the Board, prohibits children born out of second marriage without prior permission of the government from employment on compassionate ground. He has contended that the learned Single Judge has failed to appreciate that the circular dated 23.06.2005 was issued in compliance of the order passed in Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 16/54 Mustaque Ahmad Vs. State of Bihar, since reported in 2004 (4) PLJR 366. He has pleaded that the misconduct of the deceased employee by opting for second marriage during the lifetime of the first wife was bound to have its legal consequences in law. The learned Single Judge, however, failed to appreciate that compassionate appointment being not a fundamental and legal right is open to rejection on the grounds valid and sustainable in the eyes of law. He has submitted that the Full Bench of this Court in Union of India through Secretary, Ministry of Railways and Ors. Vs. Sanjay Kumar, since reported in 2018 (2) PLJR 107 has denied compassionate appointment to the children born out of second wife of the deceased employee relying upon a similar circular of the Railway Board relating to appointment on compassionate grounds. He has, however, conceded that the Supreme Court in Union of India Vs. V.R. Tripathi, since reported in 2019(1) Scale 302 has held contrary to the Full Bench of this Court in Union of India Vs. Sanjay Kumar (Supra).
18. Mr. Chitranjan Sinha, learned senior counsel appearing for the State of Bihar in LPA No. 1608 of 2014 has submitted that the learned Single Judge while passing impugned order has failed to consider that marrying second spouse in the lifetime of earlier spouse without prior permission is regarded as Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 17/54 misconduct by the government servant. To provide compassionate appointment to such second spouse or such children will be against the spirit of rule 23 (1) and 23 (2) of the 1976 Rules. He has contended that past conduct of such employee is of much relevance. In this regard, he has placed reliance on the decision of the Supreme Court in State Bank of India Vs. Anju Jain (Supra). He has pleaded that the learned Single Judge failed to appreciate that the law of inheritance is general rule whereas compassionate appointment is only for the government servant, which cannot be equated with inheritance rule. According to him, circular no. 937 dated 23.06.2005 cannot be said to be violative of any direction of this Court. He has pleaded that the recent decision of the Supreme Court in Union of India Vs. V.R. Tripathi (Supra) has also given liberty to the employer to consider other requirements. The past conduct of an employee is of paramount consideration. He has placed reliance in this regard on the decision of the Full Bench of this Court in Union of India Vs. Sanjay Kumar (Supra).
19. Mr. Ajey Kumar, learned counsel appearing for the respondent Chandra Shekhar Paswan has submitted that there is no illegality in the impugned order passed by the learned Single Judge in CWJC No. 9329 of 2012. He has contended that the learned Single Judge while passing the order under challenge has Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 18/54 placed reliance on a Division Bench judgment of this Court in Purushottam Kumar (Supra) wherein it was held that child of second marriage is entitled for compassionate appointment. The Division Bench, in Purushottan Kumar (Supra) had based its decision on the decision of the Supreme Court in Rameshwari Devi Vs. State of Bihar, since reported in AIR 2000 SC 735. He has contended that the Division Bench, while referring the matter to a Larger Bench, has referred the case of Sanjeev Kumar Yadav (Supra), which was with regard to misconduct when bigamy was committed. The facts of the judgments in Sarjan Singh (Supra) and Vinod Kumar (Supra) were not identical to the facts of the case in CWJC No. 9329 of 2012.
20. He has submitted that in Sanjeev Kumar Yadav (Supra), the issue was with regard to misconduct when bigamy was committed. In Sarjan Singh (Supra), the appellant (the applicant for compassionate appointment) himself had entered into two marriages. Similarly, in Vinod Kumar (Supra), the misconduct was by contracting second marriage by the applicant, who was seeking compassionate appointment. He has pleaded that in the State Bank of India vs. Anju Jain (Supra), the case was with respect to proved misconduct of bigamy. Thus, he has pleaded that all the decisions referred by the Division Bench in its Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 19/54 order of reference have no bearing on the facts of the instant case. He has further contended that the Full Bench judgment of this Court in Union of India Vs. Sanjay Kumar (Supra) has denied the right to compassionate appointment to the second wife/ off-spring of second wife placing reliance on the Railway Board's Circular No. 01 of 1992 dated 24.01.1992, which had already been quashed by the Calcutta High Court in Namita Goldar and Anr. Vs. Union of India and Anr. reported in 2010 (1) Cal.L.J 464. It was no more in existence as the Railway Board has never challenged the order of the High Court at Calcutta in Namita Goldar (Supra). As such, it had attained finality. The said judgment in the case of Namita Goldar (Supra) was not brought to the notice of the Full Bench either by the Union of India or by the respondents. Thus, the decision of the Full Bench was in ignorance of the relevant case as also in ignorance of the fact that the circular, in question, itself was not in existence. Hence, the said decision of the Full Bench is of no consequence. Lastly, he has argued that the issues involved in the present case are no more res integra. Recently, the Supreme Court, in the Union of the India Vs. V.R. Tripathi (Supra) has clearly held that the children born out of void marriage are legitimate and compassionate appointment cannot be denied to them.
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 20/54
21. Having heard learned counsel for the parties and carefully perused the materials on record, first of all, let us examine the background in which circular no.937 dated 23.06.2005 was issued by the State Government.
22. Prior to the issuance of the aforestated circular no. 937 dated 23.06.2005 the Government of Bihar had come out with a policy decision, as contained in Memo No. 13293 dated 05.10.1991, providing employment in Class-III and Class-IV posts in case of death of government servant during service period. The said memo laid down the categories/persons entitled to appointment on compassionate ground and other procedure for the same. According to the circular dated 05.10.1991, only dependents were to be given appointment on compassionate ground. The dependents were defined as widow of the deceased employee, son, unmarried daughter and widow of pre-deceased son. The order of preference stipulated in the circular was widow of the deceased, son, unmarried daughter and the widow of pre-deceased son.
23. In Mustaque Ahmad (Supra), a Muslim employee marrying second time during the life time of the first wife died in harness. The son from the first wife, namely, Mustaque Ahmad made an application for his appointment on compassionate ground Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 21/54 but, before anything could be done, the second wife Mosamat Jahanara Begum made a written complaint that since she along with her children have been ousted from the house, said Mustaque Ahmad is not entitled to appointment on compassionate ground. In view of the dispute raised, the District Compassionate Appointment Committee directed the District Education Officer to make an inquiry and submit his report. After the inquiry, report was submitted and considered whereafter, the District Magistrate, Muzaffarpur had sought clarification from the Secretary, Personnel and Administrative Reforms Department asking the authority as to whether second wife and her children would be entitled to appointment on compassionate ground. It was under
this circumstance, the writ petition was filed by Mustaque Ahmad and, after hearing the parties, this Court disposed of the writ petition on the following terms:-
"Instead of entering into the controversy or considering the entitlement of the parties, I dispose of the writ application with a direction to the Secretary, Personnel & Administrative Reforms Department to issue proper directions in a matter like this. The directions should not be issued only to the District Magistrate, Muzaffarpur but should be issued to all concerned in form of a policy decision because such matters are seeing the light of the day Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 22/54 many times. In case of a Mohammadan, who marries second time during the life time of the first wife, on one side the Government says that the Government servant is not entitled to marry second time while claimants say that under the personal law such a person is entitled to marry and in any case his wards or dependents cannot be refused the appointment on compassionate ground. Let necessary policy be framed and orders be issued within a period of four months from the date of submission of this order."
24. In the background of the directions given in Mustaque Ahmad (Supra), circular No. 937 dated 23.06.2005 was issued under the signature of the Joint Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna, which reads as under:-
"fo'k; % f}rh; iRuh ,oa mlls mRiUu larku dh vuqdEik ds vk/kkj ij fu;qfDr gsrq vuqekU;rk ds laca/k esaA mi;ZqDr fo'k; ds laca/k esa funs"kkuqlkj dguk gS fd vk;s fnu e`r ljdkjh lasod dh f}rh; iRuh vkSj mlls mRiUu larku dh vuqdUik ds vk/kkj ij fu;qfDr gsrq fopkj dh vuqekU;rk ds laca/k esa dkfeZd ,oa iz"kklfud lq/kkj foHkkx ls ekxZn"kZu dh ek¡x dh tkrh jgh gSA bl fo'k; ij lh0MCyw0ts0lh0 la[;k 6201@03 esa fnukad 27&7&2004 dks ekuuh; iVuk mPp U;k;ky; }kjk ikfjr vkns"k esa Hkh ;g funZs"k fn;k x;k gS fd bl Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 23/54 fo'k; ij uhfr fu.kZ; ds :i esa ,d vuqns"k fuxZr fd;k tk;A 2- mYys[kuh; gS fd fgUnw fookg vf/kfu;e] 1955 ds vUrxZr ,d iRuh ds thfor jgrs gq, fookg djuk voS/k gS] ijUrq eqfLye ilZuy ykW bldh btktr nsrk gSA bl laca/k esa fcgkj ljdkjh lsod vkpkj fu;ekoyh] 1976 ds fu;e 23 esa izko/kku fd;k gqvk gS fd ,slk dksbZ ljdkjh lsod ftldk ifr ;k iRuh thfor gks] fdlh O;fDr ds lkFk fookg ;k fookg ds fy, djkj ugha djsxk ( ijUrq ljdkj fdlh ljdkjh lsod dks nwljk fookg djus dh vuqKk ns ldsxh] ;fn ,slk fookg ,sls ljdkjh lsod vkSj ,sls fookg ds f}rh; i{kdkj ij ykxw ilZuy ykW dss v/khu oS/k gks vkSj ,slk djus ds fy, vU; vk/kkj gSA 3- mi;ZqDr fu;e esa Li'V gS fd dksbZ ljdkjh lsod] pkgs mls ilZuy ykW ds vuqlkj ,slk djus dh vuqekU;rk gks ;k u gks] fcuk ljdkj dh iwoZ vuqKk ds] ifr ;k iRuh ds thfor jgrs fookg ;k fookg ds fy, djkj ugha dj ldrk gSA ,slh ifjfLFkfr esa ;fn og fcuk ljdkjh lsod dh lsokdky esa e`R;q ds i"pkr~ vuqdEik ds vk/kkj ij fu;qfDr gsrq fopkj ds YkkHk dh vuqekU;rk ugh gks ldrh gSA 4- ;fn ljdkj dh iwoZ vuqKk ysdj ,slk f}rh; fookg fd;k x;k gks rks oSlh ifjfLFkfr esa vuqdEik vk/kkfjr fu;qfDr lEcU/kh Kkikad 13293] fnukad 05&10&1991 dh dafMdk ¼1½¼?k½ esa n"kkZ;h x;h izkFkfedrk ds vuqlkj vuqdEik vk/kkfjr fu;qfDr gsrq fopkj ds ykHk dh vuqekU;rk gks ldsxhA ijUrq ,slh fu;qfDr ds vk/kkj ij f}rh; fookg dks fof/klEer ,oa oS/k izHkko fn;s tkus dk nkok ekU; ugha gksxkA ;fn mi;qZDr :i esa ,d ls vf/kd fookg oS/k gks rks ,sls lHkh thfor ifRu;ksa dk vuqdEik ds vk/kkj ij fu;qfDr gsrq fopkjkFkZ vkfJrksa dh Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 24/54 Js.kh esa izFke LFkku gksxk] fdUrq mlesa Hkh izFke iRuh dh gh izFke LFkku gksxkA vU; ifRu;ksa dh fu;qfDr gsrq fopkj rHkh fd;k tk ldsxk tc izFke@ojh; iRuh bl gsrq vukifŸk ,oa "kiFk&i= nsA ijUrq ,slh vukifŸk ,oa "kiFk&i= dh lR;rk dh tk¡p ds fy, ckn gh vxzrj dkjZokbZ dh tk ldsxhA vU; vkfJrksa dh fu;qfDr gsrq fopkj mudh izkFkfedrk ds vuqlkj lHkh thfor oS/k ifRu;ksa dh vukifŸk@"kiFk&i= ds vk/kkj ij gks ldsxkA 5- d`i;k mi;ZqDr vuqns"k ls vius v/khuLFk inkf/kdkfj;ksa@deZpkfj;ksa dks voxr djk nsaA"
25. A reading of the aforesaid circular would make it manifest that by the said circular compassionate appointment cannot be granted to the children born from the second marriage of a deceased employee except where the marriage was permitted by the Government taking into account personal law etc.
26. The said circular had been issued by the State Government keeping in mind rule 23 of the 1976 Rules, which puts restriction upon marriage by the government servant having spouse living during life time.
27. Rule 23 of 1976 Rules reads as under:-
"Restrictions regarding marriage:- (1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living and (2) No Government servant, having a spouse Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 25/54 living shall enter into, or contract a marriage with any person:
Provided that Government may permit a Government servant to enter into or contract, any such marriage as is referred to in clause(1) or clause(2) if it is satisfied that:-
(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and
(b) there are other grounds for so doing. (3) A Government servant who has married or marries a person other than of Indian Nationality shall forthwith intimate the fact to the Government."
28. Having noticed the relevant circular and rule 23 of the 1976 Rules, let us now consider the facts of the cases noticed by the Division Bench while passing its reference order in LPA No. 1305 of 2013.
29. In Vinod Kumar (Supra), the claim of the appellant, son of a Class-IV employee, who died in harness, for compassionate appointment was rejected by the government on the ground that he had married twice and under government regulations he would immediately come within the misconduct under 1976 Rules. He challenged the said decisions by way of Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 26/54 filing a writ petition. The learned Single Judge dismissed the writ petition where after he filed an appeal before the Division Bench. The Division Bench dismissed the appeal finding no illegality in the decision of the government or of the learned Single Judge.
30. In Purushottam Kumar (Supra), the question, which fell for consideration before the Division Bench was whether a son of the second wife, whose marriage is void in terms of Section 5 read with Section 11 of the Hindu Marriage Act is entitled to compassionate appointment in terms of the State Government Memo No. 13293 dated 05.10.1991. In that case, the appellant's case was rejected by the District Compassionate Committee on the ground that the deceased employee had two wives and as the second marriage was performed while the first marriage was subsisting, the claim of the appellant, the son of the second wife, cannot be considered for compassionate appointment. The appellant preferred writ petition challenging the said decision, which was dismissed by the learned Single Judge vide order dated 28.02.2005 whereafter an appeal was filed before the Division Bench. The Division Bench, after considering the provisions of law prescribed in Sections 5, 11 and 16 of the Hindu Marriage Act, 1955, rule 23 of the 1976 Rules as also the government policy decision contained in Memo No. 13293 dated 05.10.1991 Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 27/54 and the ratio laid down by the Supreme Court in Rameshwari Devi (Supra), set aside the order passed by the learned Single Judge and the decision of the Compassionate Appointment Committee and remitted the matter to the authorities concerned to consider the question of appointment of the appellant on compassionate ground.
31. While passing the order, the Division Bench, in Purushottam Kumar (Supra), came to the conclusion that since policy of the State Government refers to son and son of the second wife is also legitimate, he would be entitled to be appointed on compassionate ground and his claim cannot be rejected on the ground of being off-spring of void marriage.
32. In General Manager, S.B.I. & Ors. Vs. Anju Jain (Supra), the respondent husband was an employee of the appellant bank. In 1996, he was found guilty of embezzlement for which major punishment of reduction of his basic pay by two stages and stoppage of five annual increments with cumulative effect was imposed on him. He died on 25.01.2000. Thereafter, in March, 2000, the respondent made a request for compassionate appointment. The request was rejected by the appellant bank on the ground that punishment had been imposed on the respondent's husband on account of serious misconduct. Subsequently, another Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 28/54 representation by the respondent was also rejected on 16.07.2001. Upon challenge, the learned Single Judge of the High Court of Allahabad allowed the petition filed by the respondents and directed the State Government to provide her appointment on compassionate ground from the date of death of her husband. In intra-court appeal, the Division Bench of the High Court of Allahabad, confirmed the order passed by the learned Single Judge and dismissed the appeal. Upon challenge, the Supreme Court set aside the order passed by the learned Single Judge, which was confirmed by the Division Bench of the High Court and allowed the appeal filed by the bank. While passing the order, the Supreme Court observed :-
"In our opinion, therefore, if disciplinary proceedings have been initiated against an employee and the charges levelled against such employee are proved and he is punished, it is indeed a relevant consideration for not extending the benefit to dependent of such employee on the ground that he was punished. To us, it cannot be said that it is a case of double jeopardy or a dual punishment.
Compassionate appointment is really a concession in favour of dependents of deceased employee. If during his carrier, he had committed illegalities and the misconduct is proved and he is punished, obviously his Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 29/54 dependents cannot claim right to the employment. With respect, the learned Single Judge was wholly wrong in observing that such an action would be violative of principles of natural justice.
To us, the observation of the learned Single Judge that "no past acts of misconduct of the employee who dies in harness can be taken into account while considering the case of a family member for employment on compassionate ground" is not in consonance with law. Past conduct of an employee is undoubtedly an important consideration. We are also of the view that the State Bank was right in rejecting the prayer of the wife of the deceased employee vide its letter dated January 29, 2001 observing therein that "unblemished service record is implicit".
33. In Sanjiv Kumar Yadav (Supra), the father of the petitioner, an Assistant Teacher, in a government girls' primary school, died in harness on 6.2.1997. Following his death, the petitioner made an application for appointment on compassionate ground. His request for appointment was considered by the District Compassionate Committee, Sitamarhi in its meeting held on 8-9-1997 and having regard to the fact that the petitioner had two wives, it was decided to seek guidance in the matter from the Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 30/54 department of Administrative and Personnel Reforms. The Deputy Secretary of the Department vide his letter dated 10.7.1998 gave the direction that the petitioner's appointment would not be valid because of his two marriages. At that stage, the mother of the petitioner, the widow of the deceased government employee made a detailed application protesting against the decision not to give appointment to her son on the ground of bigamy. She explained that the first wife of the petitioner was not being able to bear a child and it was she who had forced and persuaded him to take a second wife. After the second marriage, however, the first wife of the petitioner bore a child. On the basis of the application received from the mother of the petitioner, the District Compassionate Committee requested the Deputy Secretary in the government to reconsider the matter, in reply to which the District Compassionate Committee was directed to take a decision on the question of petitioner's appointment on compassionate grounds in the light of the departmental memo No. 13293 dated 5.10.1991. Finally, the case of the petitioner was turned down on the ground of his having two wives. The petitioner challenged the decision of the District Compassionate Committee taken in its meeting dated 18.07.2000 by way of filing a writ petition. The writ petition was dismissed taking into consideration that commission of bigamy is Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 31/54 a misconduct by a government employee. That being the position, it was held that the impugned decision was unexceptionable because it would appear quite anomalous to induct into government employment someone, who even before his appointment is in a position, which is a misconduct for a government employee.
34. In Sarjan Singh (Supra), the petitioner had preferred writ petition seeking a direction upon the respondent authorities for his appointment on compassionate ground. His father was a Class IV employee, who had died on 17.01.2005. Thereafter, he had filed his application for appointment on compassionate ground. On 27.04.2005, his claim was rejected by the District Compassionate Committee, Muzaffarpur on 05.10.2007, on the ground that he had two wives. This Court, in view of the settled legal position in the case of Sanjiv Kumar Yadav (Supra), dismissed the writ petition.
35. As seen above, the cases of Sanjiv Kumar Yadav (Supra), Vinod Kumar (Supra) and Sarjan Singh (Supra) are identical in one aspect. They had approached this Court seeking a direction upon the respondent authorities for their appointment on compassionate ground upon death of their respective fathers, who had died in harness. Their respective claims for appointment on Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 32/54 compassionate ground were negated by the State Government on the ground that they all were bigamous husband and had no regard for the law and that the public policy being strongly opposed to bigamy, the Courts should take a view discouraging the practice of bigamy. Compassionate appointment is not a reservation and the employer can refuse compassionate appointment if it is against the public policy or law of the land.
36. In the case of General Manager, State Bank of India Vs. Anju Singh (Supra), the claim for compassionate appointment to the wife of the deceased employee had been rejected by the bank on the ground that punishment had been imposed on the respondent's husband on account of serious misconduct while he was still in service. The decision taken by the bank was set aside by the High Court. On appeal, the Supreme Court set aside the order of the High Court taking into consideration the fact that the disciplinary proceeding had been initiated against the employee and the charges leveled against him was proved and he was punished. It is in this background the Supreme Court observed that if during his career the employee had committed illegalities and his misconduct is proved and he is punished, the dependents cannot claim right to compassionate employment.
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 33/54
37. In the present case, the issues are quite different and distinguishable. It is not the case of the Board that the father of the respondent Chandra Shekhar Paswan was ever charged or proceeded against for any misconduct while in service. It is also not the case of the appellant that the respondent Chandra Shekhar Paswan is guilty of commission of bigamy or otherwise ineligible for appointment on account of public policy or breach of law. His application for appointment on compassionate ground was rejected by the Board on the ground that he being the son from the second wife of the deceased employee, whose marriage was void, cannot be appointed on compassionate ground. Hence, the ratio laid down in the cases of General Manager, State Bank of India Vs. Anju Jain (Supra), Sanjiv Kumar Yadav (Supra), Vinod Kumar (Supra) and Sarjan Singh (Supra) are not applicable to the facts of the present case.
38. Let us now consider the applicability of the ratio laid down in Union of India Vs. Sanjay Kumar (Supra) upon which the State has placed reliance in order to assail the judgment of the learned single Judge in CWJC No. 9329 of 2017. In the said case, the petitioner had invoked the writ jurisdiction claiming appointment on compassionate grounds after death of his father on 18th March, 1991. The application for appointment on Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 34/54 compassionate grounds was filed on 7th April, 1992 after he had attained majority. The learned Single Judge had allowed the writ application for the reason that his application could not be rejected simply on the ground that he is son from the second wife of the deceased. In appeal, the Union of India through Ministry of Railways relied upon an order of a Division Bench to contend that the compassionate appointment can be sought and granted only in terms of the policies framed from time to time. Since the policy of the Railways specifically excluded compassionate appointment to the second widow and her children, the writ-applicant would not be entitled to compassionate appointment even if he is treated to be legitimate child for the purposes of Hindu Marriage Act, 1955. Moreover, the Division Bench, hearing the writ petition, doubting the correctness of the earlier Division Bench judgment relied upon by the appellant Union of India wherein it was held that the children born out of the second wife without permissions of the Railway authorities are not entitled to seek compassionate appointment in terms of the circular issued by the Railways, referred the matter to the Full Bench. The Full Bench, after hearing the parties, ruled as under:-
"We have heard learned counsel for the parties and find that right to seek compassionate appointment emanates from Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 35/54 the policy of the employer. In the absence of policy of compassionate appointment, there is no inherent right with the family members of the deceased to seek compassionate appointment. If the policy of compassionate appointment does not permit the second wife and/or her children for appointment on compassionate grounds, this Court on the basis of right of inheritance will not confer the right to seek compassionate appointment...."
39. Since the judgment of the Full Bench of this Court in Union of India Vs. Sanjay Kumar (Supra) was with reference to the Railway Board's circular dated 02.01.1992, it is apposite to reproduce the said circular hereunder :-
"The General Manager (P) C.Rly. And others Sub:- Appointment on compassionate grounds cases of second widow and her wards.
It is clarified that in the case of railway employees dying in harness etc. leaving 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 Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 36/54 considered unless the administration has permitted the second marriage, in special circumstances, taking into account the persons law etc.
2. The fact that the second marriage is not permissible is invariably clarified in the terms and conditions advised to the offer of initial appointment.
3. This may be kept in view and the case for compassionate appointment to the second widow or her wards need not be forwarded to Railway Board.
4. Kindly acknowledge receipt.
Sd/-
(P.L.N. Sharma) Deputy Director, Estt. (N) Railway Board"
40. The legality of the aforesaid circular of the Railway Board was questioned in Namita Goldar (Supra) before the Calcutta High Court in which the deceased employee had married for the second time during the life time of his first wife as there was no issue with the first wife. The employee had died in harness leaving behind two widows and four children. The first wife had died after the death of the deceased employee and the family pension and other benefits were disbursed to the second wife and her children. The compassionate appointment was claimed by the Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 37/54 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 observing as under:-
"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.
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.
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.
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 Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 38/54 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).
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 appointments on compassionate ground."
41. Since the Calcutta High Court, in Namita Goldar (Supra) had set aside the Railway Board's circular dated 02.01.1992 to the extent the same prevented the children of the second wife from being considered for appointment on compassionate ground, the same had lost its existence to that extent. The concerned Railway Board had never challenged the Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 39/54 order of the Calcutta High Court passed in the case of Namita Goldar (Supra) before the Apex Court. Thus, it had attained finality. It was desirable from the appellant Union of India, East Central Railway and others to have brought this fact to the notice of the Full Bench of this Court in Union of India Vs. Sanjay Kumar (Supra). Unfortunately, neither the appellant nor the respondent apprised the Full Bench of this Court, the judgment of the Division Bench of the Calcutta High Court in the case of Namita Goldar (Supra) in which Railway Board's Circular, dated 02.01.1992, was quashed to the extent it prevented the second wife or her children to compassionate appointment. In absence of the material fact having been brought to the notice of this Court, the Full Bench of this Court held that if the policy of the Railway Board of compassionate appointment does not permit the second wife and/or her children for appointment on compassionate ground, on the basis of right of inheritance, right to compassionate appointment cannot be conferred. The said finding of the Full Bench is based on the circular of the Railway Board, which was not in existence. It had become lifeless circular after the same was held ultra vires by the Calcutta High Court in Namita Goldar (Supra).
42. At this stage, it would be apposite to refer to the Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 40/54 Division Bench decision of the Delhi High Court in Union of India Vs. Pankaj Kumar Sharma [W.P.(C) 9008 of 2014] wherein challenge was made to the decision of the Central Administrative Tribunal whereby the Tribunal had quashed the petitioner's communication dated 09.05.2012 rejecting the respondent's application for compassionate appointment and directed the petitioner to consider his case for grant of compassionate appointment under the scheme. A Division Bench of Delhi High Court dismissed the writ petition vide its judgment dated 19.12.2014 holding as under :-
"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."
43. It further held :
"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 Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 41/54 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."
44. Again the Madras High Court considered an identical issue in Union of India Vs. M. Karumbayee (WP. No. 36981 of 2015) in which it had held that the children born out of void marriages are legitimate. That case related to appointment on compassionate ground in Southern Railway of a deceased employee's son born to his second wife as he did not have any issue from his first wife. The claim was rejected by the Southern Railway Board on the ground that the children born to the second wife were not recognized and the second wife was not entitled to any benefits as per Railway Board's circular dated 02.01.1992. Upon challenge, the Central Administrative Tribunal, Madras Bench allowed the original application on the basis of judgment rendered by the Division Bench of Calcutta High Court in the case of Namita Goldar (Supra), which followed the decision of the Supreme Court in the case of Rameshwari Devi (Supra), which specifically held that second marriage during subsistence of first Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 42/54 marriage is illegitimate but the children born out of second wife are legitimate and are entitled to the estate of the father. The Central Administrative Tribunal, therefore, held that no distinction can be made amongst the children of the first and the second wife of a deceased employee. The Central Administrative Tribunal, thus, quashed the 1992 circular issued by the Railway Board to the extent it prevented the children of the second wife from being considered for appointment on compassionate ground.
45. Upon challenge, in the writ petition filed by the Union of India against the order of the Central Administrative Tribunal, the Division Bench of the Madras High Court held as under :-
"We have given our anxious consideration to the materials placed on record and the pleadings of the parties.
We do not find any infirmity in the order passed by the learned Tribunal as the same was on the basis of the Division Bench judgment of the Kolkatta High Court, which had followed the decision of the Hon'ble Supreme Court. We also do not have any quarrel with the proposition of law laid down by the Kolkatta High Court as the children born out of second marriage, cannot be treated as illegitimate in the eye of law.
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 43/54 In such view of the matter, the Writ Petition is dismissed as devoid of merits and substance. No costs."
46. Being aggrieved by the order passed by the Madras High Court in the case of Union of India Vs. M. Karumbayee (Supra), the Union of India and others preferred Special Leave Petition before the Supreme Court, vide Diary No. 27352 of 2017, but the same was dismissed vide order dated 18.09.2017.
47. Recently in Union of India Vs. V.R.Tripathi (Supra), the Supreme Court has ruled as under :-
"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."
48. It was a case in which the father of the respondent was employed as a Technician, Grade-I in Central Railways at Mumbai. He died in harness on 28 November 2009. He had contracted a second marriage during the subsistence of his first marriage. The respondent was the son born from the second marriage of the employee, which was contracted in 1987. The respondent had applied Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 44/54 for compassionate appointment on the death of his father. His application was rejected on 6 March 2012 by the Railway authorities. Aggrieved by the denial of compassionate appointment, the respondent had moved an Original Application before the Central Administrative Tribunal. The Tribunal having held in favour of the respondent and upon the dismissal of a petition seeking review, the Union of India and the Railway authorities instituted writ proceedings before the Bombay High Court. In support of the writ petition, the appellants relied upon the circular of the Board dated 02.01.1992 whereby the second widow and her children were not to be considered for compassionate appointment unless the administration had permitted the second marriage, in special circumstances, taking into account personal law etc.
49. After hearing the parties, the Bombay High Court had found no reason to differ with the view of the Central Administrative Tribunal. Hence, the appellants assailed the judgment of the High Court before the Supreme Court.
50. Having heard the parties, the Supreme Court, in Union of India Vs. V.R.Tripathi (Supra), while dealing with the circular issued by the Railway Board, observed as under :-
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 45/54 "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."
(emphasis supplied) Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 46/54
51. While holding that the circular of the Railway Board creates two categories between one class of legitimate children, The Supreme Court observed:-
"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."
52. In answer to the argument advanced on behalf of the appellants that it is open to the State, as part of its policy of discouraging bigamy to restrict compassionate appointment, only to the spouse and children of the first marriage and to deny spouse of the second marriage and the children, the Supreme Court observed:-
"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 Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 47/54 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."
(emphasis supplied)
53. The Supreme Court also noticed the Division Bench judgment of Calcutta High Court in Namita Goldar (Supra) whereby circular of the Railway Board dated 02.01.1992 to the extent that it prevented the children of second wife from being considered for appointment on compassionate ground was quashed. Its attention was also drawn to the judgment of the Division Bench of the Madras High Court in Union of India Vs. M Karumbayee (Supra), which had followed Namita Goldar (Supra). The Supreme Court noticed that Special Leave Petition filed against the judgment of the Division Bench was dismissed by the Supreme Court on 18.09.2017.
54. Having noticed the aforesaid judgments, the Supreme Court observed:-
"Finally, it would be necessary to dwell on the submission which was urged on behalf of the respondent that once the circular dated 2 Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 48/54 January 1992 was struck down by the Division Bench of the Calcutta High Court in Namita Goldar (supra) and which was accepted and has been implemented, it was not thereafter open to the railway authorities to rely upon the same circular which has all India force and effect. There is merit in the submission. Hence, we find it improper on the part of the Railway Board to issue a fresh circular on 3 April 2013, reiterating the terms of the earlier circular dated 2 January, 1992 even after the decision in Namita Goldar (supra), which attained finality."
55. Apparently, the judgment passed in Union of India Vs. V.R. Tripathi (Supra) by the Supreme Court is contrary to the Full Bench of this Court in Union of India Vs. Sanjay Kumar (Supra) as it has acknowledged the right to the child of the second marriage and has also held that 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. It has acknowledged the right to compassionate appointment to the child of second marriage under Section 16(1) and 16(3) of the Hindu Marriage Act. The principle laid down by the Supreme Court Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 49/54 supersedes those taken by the Full Bench of this Court in Union of India Vs. Sanjay Kumar (Supra). The said principle having enunciated by the highest Court of the land has a binding force. The authoritative pronouncement of apex court on the point of compassionate appointment in V.R.Tripathi (Supra) eclipses the decision of the Full Bench of this Court in Union of India Vs. Sanjay Kumar (Supra), which was even based on misconstruction of Railway Board's circular dated 02.01.1992 as the said circular was not in existence after Namita Goldar's case.
56. In the light of the authoritative pronouncement of the Supreme Court in Union of India Vs. V.R. Tripathi (Supra), we find that the condition imposed by the circular no. 937 dated 23.06.2005 issued under the signature of Joint Secretary Personnel and Administrative Reforms Department, Government of Bihar, Patna, which inter alia bars compassionate appointment to the children born from second marriage of the deceased employee cannot be held to be legal and justified. 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, the State cannot exclude such a child by issuing circular or letter from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 50/54 vires.
57. We are also of the opinion that in view of the ratio laid down by the Supreme Court in Union of India Vs. V.R.Tripathi (Supra), an employer, who is amenable to Part III of the Constitution cannot deny the benefit of compassionate appointment, which is available to the other legitimate children. The State cannot lay down a condition while making the scheme or rules inconsistent with Article 14 of the Constitution. In view of Section 16 of the Hindu Marriage Act, 1955, which regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, the condition of prior approval of the employer before the second marriage of the deceased employee cannot be sine qua non to the children born out of second marriage. Such a condition of exclusion would be arbitrary and ultra vires as it would bring out unconstitutional discrimination between legitimate children, who form one class.
58. In view of rule 23 of the 1976 Rules as also the decisions of this Court and the decision of the Supreme Court discussed above, we are of the opinion that if the second marriage was performed by the government servant while in service, the same would amount to misconduct committed in service. In case, an employee is proceeded against for such misconduct while in Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 51/54 service and misconduct is proved, the government may be free to take any action against such employee. In case of punishment awarded to the government employee, the same may be a relevant consideration for denying the prayer for compassionate appointment of dependents of the deceased employee. However, if no disciplinary proceeding is initiated for any misconduct against an employee while in service, after his death, his dependents cannot be denied compassionate appointment on the ground that while in service the employee had been guilty of misconduct. In other words, the claim for compassionate appointment to the dependents of the deceased employee can be denied only if the employee had committed illegalities and misconduct is proved and he is punished during his service career.
59. Having held so, when we look to the order dated 13.08.2012 passed by the learned Single Judge in CWJC No. 9329 of 2012, we find that while allowing the writ petition the learned Single Judge has quashed the circular no. 937 dated 23.06.2005 issued under the signature of the Joint Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna and directed the respondents to appoint the petitioner on compassionate ground on the post to which he is entitled.
60. We are of the opinion that the aforesaid circular dated Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 52/54 23.06.2005 should not have been quashed in its entirety. We are also of the opinion that no direction could have been given by the learned Single Judge to the respondents to appoint the petitioner on compassionate ground on the post to which he is entitled. The learned Single Judge ought to have quashed the circular to the extent it prevented the children of the second wife from being considered for appointment on compassionate ground. Similarly, instead of issuing direction to the respondents to appoint the petitioner on compassionate ground, the learned Single Judge ought to have directed the respondents to consider the case of the petitioner for appointment on compassionate ground as it is well settled position in law that appointment on compassionate ground is not a source of recruitment. It is exception to the general rule. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The person seeking appointment on compassionate ground under a scheme has a right to be considered for appointment, which needs to be decided on the facts of each individual case keeping in mind as to whether the applicant needs all stipulations of the scheme including financial need and other requirements.
61. In view of the discussions made above, LPA Nos. 1305 of 2013 and 1608 of 2014 are dismissed. However, we Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 53/54 modify the order dated 13.08.2012 passed by the learned Single Judge in CWJC No. 9329 of 2012 as under :
The impugned circular no. 937 dated
23.06.2005 issued by the Personnel and
Administrative Reforms Department, Government of Bihar, Patna stands quashed to the extent it prevents the children of the second wife from being considered for appointment on compassionate ground. The respondents in LPA no. 1305 of 2013 are directed to consider the claim of the respondent-writ petitioner Chandra Shekhar Paswan for appointment on compassionate ground and issue appropriate orders as early as possible preferably within three months from the date of receipt/production of a copy of the order.
62. Since the impugned circular no. 937 dated 23.06.2005 issued by the Government of Bihar, Patna has been quashed to the extent it prevented the children of the second wife from being considered for appointment on compassionate ground, we dispose of CWJC No. 11445 of 2010 with a direction to the respondents to consider the claim of the petitioner for appointment on compassionate ground on merit and pass appropriate orders in Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019 54/54 accordance with law as early as possible preferably within three months from the date of receipt/production of a copy of the order.
(Ashwani Kumar Singh, J.)
Birendra Kumar,J : I agree.
( Birendra Kumar, J.)
Anil Kumar Upadhyay, J : I agree.
( Anil Kumar Upadhyay, J)
pradeep/-
AFR/NAFR AFR
CAV DATE 12.03.2019
Uploading Date 19-04-2019
Transmission Date