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Madhya Pradesh High Court · body

2008 DIGILAW 1221 (MP)

Rahul Singh v. State of M. P.

2008-10-15

S.C.SHARMA

body2008
ORDER 1. The petitioner before this Court is a Child Constable working at 5th Battalion, Special Armed Force, Morena has filed this present writ petition through his guardian mother Munnidevi assailing the legality and validity of the order dated 6.11.2002 by which the compassionate appointment granted to the petitioner has been cancelled. 2. The contention of the petitioner is that the father of the petitioner was serving the Special Armed Force and died in harness while in service. The petitioner has submitted an application for grant of compassionate appointment and the competent authority by an order dated 29.8.2001 has granted compassionate appointment to the petitioner as Child Constable. It is also pertinent to note that petitioner while submitting an application for grant of compassionate appointment on 6.8.1997 has categorically informed the Deputy Inspector General SAF Gwalior tha the is son of Smt.Munnidevi who is second wife of the deceased Government servant namely Shri Rishav Dev Singh. An affidavit of Smt.Karnlesh first wife of Shri Rishav Dev Singh is also on record wherein she has stated that the petitioner's mother was married to late Shri Rishav Dev Singh and she does not have any objection in case compassionate appointment is granted to the petitioner. This fact was very much withint the knowledge of authorities and the Commandant, 5th Batalion SAF Morena has acknowledged this fact in his letter dated 6.8.1997 thereafter, the matter was again examined and on 29.8.1997 the petitioner was informed that his name has been kept in waiting list at serial No.32A and as per his turn, he will be granted compassionate appointment, thereafter, the petitioner was medically examined and finally an order has been passed granting him compassionate appointment on 29.8.2001 appointing the petitioner as Child Constable. The petitioner is aggrieved by the order dated 6.11.2002 by which the compassionate appointment granted to him has been withdrawn. The contention of the petitioner is that the aforesaid order has been passed in violation of the principle of natural justice and fair play and there is no dispute that he is son of deceased Government servant. 3. The respondent State has filed a detailed reply and it has been stated in the reply that the name of the petitioner does not find place in the service book of the deceased Government servant. 3. The respondent State has filed a detailed reply and it has been stated in the reply that the name of the petitioner does not find place in the service book of the deceased Government servant. Moreover, the mother of the petitioner is second wife of the deceased Government servant and therefore, the petitioner cannot be treated to be son of the deceased Government servant. The respondents have therefore, justified their action in cancelling the compassionate appointment granted to the petitioner.The respondents at the same time have admitted that this information regarding second wife was very much disclosed by the petitioner while submitting an application for grant of compassionate appointment. The respondents have further stated that Smt.Munnidevi, mother of the petitioner is not a legally wedded wife and the name of petitioner and his mother has not been entered in the service book of the deceased Government servant, therefore, the order of compassionate appointment has rightly been withdrawn. 4. In the present case succession certificate has also been brought on record wherein the Court of competent jurisdiction has directed the payment of dues of the deceased Government servant to the petitioner, petitioner's mother as well as first wife of deceased Government servant being the legal heirs. 5. Heard learned counsel for the parties at length and perused the record. 6. In the present case the petitioner was appointed by an order dated 29.8.2001 and services have been put to an end by an order dated 6.11.2002. This Court while issuing notice to the respondents has granted an interim order on 14.11.2002 and the petitioner is very much continuing in service till date. There is no other counter claim nor any person stating himself to be legal heir of the deceased Government servant has applied for compassionate appointment in the matter. It is also disputed that the petitioner is son of the deceased Government servant. The only controversy is that he is son of second wife. The first wife of the deceased Government servant has also submitted an affidavit to the department stating that she does not have any objection regarding appointment of the petitioner on compassionate ground and therefore, there appears to be no justification in throwing out the petitioner who is in fact looking after his mother as well as his step-mother as stated by the learned counsel for the petitioner. In the present case while issuing the impugned order the respondents have not granted any opportunity of hearing to the petitioner. The apex Court in the case of Gajanan L. Pernekar v. State of Goa and another [ (1999)8 SCC 378 ], has held that in case an order is passed recalling another administrative order, an opportunity of show cause to adversely affected person has to be given in the matter. The apex Court was dealing with a case of recall of absorption and it was held that opportunity of hearing should have been provided to the employees before recalling the order of absorption. 7. Similarly, the apex Court in the case of Shekhar Ghosh v. Union of India and another [ (2007) 1 SCC 331 ], has held that an opportunity of hearing has to be granted to an employee in those cases where civil consequences are involved. The apex Court has held in paragraphs 18,19,20,21 and 22 as under: "18. Curiously respondents in their counter affidavits filed before the Tribunal and the High Court did not raise any plea of rectification of any mistake. It was also not stated in the show cause notice issued to the appellant. Only a plea of mistake was taken for the first time before the Tribunal, but no plea was taken that it was entitled to rectify the same or his order impugned before it was capable of being rectified. Thus, it was not a case where an opportunity of hearing was given to appellant on the premise that a mistake had been committed by the authorities of the first respondent and the same was required to be rectified. 19. If a mistake is to be rectified the same should be done as expeditiously as possible. {See Board of Secondary Education, Assam v. Mohd. Sarjumma [ (2003)12 SCC 408 ]}. 20. We are not oblivious that in Ram Chandra Tripathi v. U.P. Public Service Tribunal IV and others [ (1994)5 SCC 180 ], an order passed by way of a mistake was permitted to be corrected as the same was done in violation of the order of injunction. In such a situation only, this Court held that an opportunity of being heard for correcting such mistake would not arise because there would not have been any occasion to take one view or the other. In such a situation only, this Court held that an opportunity of being heard for correcting such mistake would not arise because there would not have been any occasion to take one view or the other. in the matter on the basis of representation to be made by the affected employee. 21. It is also not a case where a mistake was apparent on the face of the records and, thus, compliance of the principles of natural justice would not have made any difference as was in the case of Smt. Ratna Sen nee Roy v. The State of West Bengal and others [1995(1) Cal. LT 462]. 22. Requirements to comply with the principles of natural justice would, therefore, vary from case to case. If upon giving an opportunity of hearing to an affected employee, it is possible to arrive at a different finding, the principles of natural justice must be complied with. We may notice that recently in Union of India and others v. Bikash Kuanar [ 2006(10) SCALE 86 ], a Division Bench of this Court opined: "It is now trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance of the principles of natural justice. It is only in a case where the mistake is apparent on the face of the records, a rectification thereof is permissible without giving any hearing to the aggrieved party." 8. The respondents have cancelled the petitioner's appointmenfas he is son of second wife and the deceased Government servant has married Smt. Munnidevi inspite of the fact that he was married earlier to Smt. Kamlesh (first wife). The question involved in the present writ petition is whether a child born out of second marriage by a Hindu is entitled for compassionate appointment or not. The General Administration Department of the State of Madhya Pradesh has issued executive instructions for grant of compassionate appointment to the State Government employee on 1.5.2000 and the aforesaid executive instruction was modified from time to time. Recently the State Government has issued fresh executive instructions dated 22nd January, 2007 and the earlier executive instructions as well as the executive instruction dated 22.1.2007 provides for grant of compassionate appointment to the following category of persons (translated by this Court). Recently the State Government has issued fresh executive instructions dated 22nd January, 2007 and the earlier executive instructions as well as the executive instruction dated 22.1.2007 provides for grant of compassionate appointment to the following category of persons (translated by this Court). (A) wife of the deceased Government servant or solely dependent husband. (B) son of a deceased Government servant, unmarried daughter, widowed daughter, divorced daughter who was fully depending upon a Government servant at the time of the death of a Government servant. (C) unmarried brother and sister of the deceased Government servant subject to recommendation of the parents of the deceased Government servant. (D) In case number of claimants are more, based upon the recommendations by husband/wife or other members of the family. From a bare perusal of the aforesaid executive instructions, it is evident hat a child of a Government servant is entitled for consideration for grant) for compassionate appointment. The apex Court in the case of Rameshwari Devi v. State of Bihar and others [ (2000)2 SCC 431 ], has held as under: "9. Now, when first order was cancelled by the State Government. and second passed depriving Yogmaya Devi and her children of any right in the pensionary benefits of Narain Lal, she filed writ petition in the High Court, which as noted above, was allowed by the learned Single Judge and later appeal filed by Rameshwari Devi against that was dismissed by the Division Bench of the High Court which is impugned. Learned Single Judge referred to section 16 of the Hindu Marriage Act, 1955 holding that even though the marriage of Narain Lal with Yogmaya Devi was void their children would be legitimate and thus would be entitled to claim share in the family pernsion and death-cum-retirement gratuity of Narain Lal but only till they attained majority. Learned Single Judge accordingly issued direction to the State Government to issue fresh sanction order for payment of arrears of family pension and death-cum-retirement gratuity to the minor children born from the wedlock between Yogmaya Devi and Narain Lal till they attain majority but nothing would be payable to Yogmaya Devi. 13. But then it is not necessary for us to consider if Narain Lal could have been charged of misconduct having contracted a second marriage when his first wife was living as no disciplinary proceedings were held against him during his lifetime. 13. But then it is not necessary for us to consider if Narain Lal could have been charged of misconduct having contracted a second marriage when his first wife was living as no disciplinary proceedings were held against him during his lifetime. In the present case, we are concerned only with the question as to who is entitled to the family pension and death-cum-retirement gratuity on the death of Narain Lal. When there are two claimants to the pensionary benefits of a deceased employee and there is no nomination wherever required State Government has to hold an inquiry as to the rightful claimant. Disbursement of pension cannot wait till a civil Court pronounces upon the respective rights of the parties. That would certainly be a long drawn affair. Doors of civil Courts are always open to any party after and even before a decision is reached by the State Government as to who is entitled to pensionary benefits. Of course, inquiry conducted by the State Government cannot be a sham affair and it could also not be arbitrary. Decision has to be taken in a bona fide reasonable and rational manner. In the present case an inquiry was held which cannot be termed as sham. Result of the inquiry was that Yogmaya Devi and Narain Lal lived as husband and wife since 1963. A presumption does arise, therefore, that marriage of Yogmaya Devi with Narain Lal was in accordance with Hindu rites and all ceremonies connected with a valid Hindu marriage were performed. This presumption Rameshwari Devi has been unable to rebut. Nevertheless, that, however, does not make the marriage between Yogmaya Devi and Narain Lal as legal. Of course, when there is a charge of bigamy under section 494, IPC strict proof of solemnisation of the second marriage with due observance of rituals and ceremonies has been insisted upon. 15. This presumption Rameshwari Devi has been unable to rebut. Nevertheless, that, however, does not make the marriage between Yogmaya Devi and Narain Lal as legal. Of course, when there is a charge of bigamy under section 494, IPC strict proof of solemnisation of the second marriage with due observance of rituals and ceremonies has been insisted upon. 15. Rameshwari Devi has raised two principal objections: (1) marriage between Yogmaya Devi and Narain Lal has not been proved, meaning thereby that there is no witness to the actual performance of the marriage in accordance with the religious ceremonies required for a valid Hindu marriage and (2) without a civil Court having pronounced upon the marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rites, it cannot be held that the children of Yogmaya Devi with her marriage with Narain Lal would be legitimate under section 16 of the Hindu Marriage Act. First objection we have discussed above and there is nothing said by Rameshwari Devi to rebut the presumption in favour of marriage duly performed between Yogmaya Devi and Narain Lal. On the second objection, it is correct that no civil Court has pronounced if there was a marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rites. That would, however, not debar the State Government from making an inquiry about the existence of such a marriage and act on that in order to grant pensionary and other benefits to the children of Yogmaya Devi. On this aspect we have already adverted to above. After the death of Narain Lal, inquiry was made by the State Government as to which of the wives of Narain Lal was his legal wife. This was on the basis of claims filed by Rameshwari Devi. Inquiry was quite detailed one and there are in fact two witnesses examined during the course of inquiry being (1) Sant Prasad Sharma, teacher, DAV High School, Danapur and (2) Sri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya Devi and Narain Lal having witnessed the same. That both Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also been testified during the course of inquiry by Chandra Shekhar Singh, retired District Judge, Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S.N. Sinha w/o Sri S.N. Sinha, ADM and others. That both Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also been testified during the course of inquiry by Chandra Shekhar Singh, retired District Judge, Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S.N. Sinha w/o Sri S.N. Sinha, ADM and others. Other documentary evidence were also collected which showed Yogmaya Devi and Narain Lal were living as husband and wife. Further, the sons of the marriage between Yogmaya Devi and Narain Lal were shown in records as sons of Narain Lal. In the present case it was held that children born out of second marriage, though the deceased Government servant is a Hindu contracted second marriage during subsistence of his first marriage, were legitimate though e marriage itself was void and therefore, the legitimate children were entitled for family pension. The apex Court relying upon the earlier judgment delivererd in the ase of Rameshwari Devi has decided the case of Vidhyadhari and others, Sukhrana Bai and others [ 2008(3) JLJ 196 = (2008)2 SCC 238 ], once gain holding that the children born out of such marriage will be entitled or terminal benefits arising out of the employment of the deceased Government servant. The apex Court in paragraph No.12, 13 and 14 has held as under: "12. However, unfortunately, the High Court stopped there only and did not consider the question as to whether in spite of this factual scenario Vidhyadhari could be rendered the succession certificate. The High Court almost presumed that succession certificate can be applied for only by the legally wedded wife to the exclusion of anybody else. The High Court completely ignored the admitted situation that this succession certificate was for the purposes of collecting the provident fund, life cover scheme, pension and amount of list insurance and amount of other dues in the nature of death benefits of Sheetaldeen. That Vidhadhari was a nominee is not disputed by anyone and is, therefore proved. Vidhyadhari had claimed that succession certificate mentioning therein the names of four children whose status as legitimate children of Sheetaldeen could not and cannot be disputed. 13. That Vidhadhari was a nominee is not disputed by anyone and is, therefore proved. Vidhyadhari had claimed that succession certificate mentioning therein the names of four children whose status as legitimate children of Sheetaldeen could not and cannot be disputed. 13. This Court in Rameshwari Devi case has held that even if a Government servant had contracted second marriage during the subsistence of his first marriage, children born out of such second marriage would still be legitimate though the second marriage itself would be void. The Court, therefore, went on to hold that such children would be entitled to the pension but not the second wife. It was, therefore, bound to be considered by the High Court as to whether Vidhyadhari being the nominee of Sheetaldeen could legitimately file an application for succession certificate and could be granted the same. The law is clear on this issue that a nominee like Vidhyadhari who was claiming the death benefits arising out of the employment can always file an application under section 372 of the Succession Act as there is nothing in that section to prevent such a nominee from claiming the certificate on the basis of nomination. The High Court should have realised that Vidhyadhari was not only a nominee but also was the mother of four children of Sheetaldeen who were the legal heirs of Sheetaldeen and whose names were also found in Form A which was the declaration of Sheetaldeen during his lifetime. In her application Vidhyadhari candidly pointed out the names of the four children as the legal heirs of Sheetaldeen. No doubt that she herself has claimed to be a legal heir which status she could not claim but besides that she had the status of a nominee of Sheetaldeen. She continued to stay with Sheetaldeen as his wife for long time and was a person of confidence for Sheetaldeen who had nominated her for his provident fund, life cover scheme, pension and amount of life insurance and amount of other dues. Under such circumstances she was always preferable even to the legally wedded wife like Sukhrana Bai who had never stayed with Sheetaldeen as his wife and who had gone to the extent of claiming the succession certificate to the exclusion of legal heirs of Sheetaldeen. Under such circumstances she was always preferable even to the legally wedded wife like Sukhrana Bai who had never stayed with Sheetaldeen as his wife and who had gone to the extent of claiming the succession certificate to the exclusion of legal heirs of Sheetaldeen. In the grant of succession certificate the Court has to use its discretion where the rival claims, as in this case, are made for the succession certificate for the properties of the deceased. The High Court should have taken into consideration these crucial circumstances. Merely because Sukhrana Bai was the legally wedded wife that by itself did not entitle her to a succession certificate in comparison to Vidhyadhari who although had stayed as the wife of Sheetaldeen, had borne his four children and had claimed a succession certificate on behalf of children also. In our opinion, the High Court was not justified in granting the claim of Sukhrana Bai to the exclusion not only of the nominee of Sheetaldeen but also to the exclusion of his legitimate legal heirs. 14. Therefore, though we agree with the High Court that Sukhrana Bai was the only legitimate wife yet, we would choose to grant the certificate in favour of Vidhyadhari who was his nominee and the mother of his four children. However, we must balance the equities as Sukhrana Bai is also one of the legal heirs and besides the four children she would have the equal share in Sheetaldeen's estate which would be 1/5th. To balance the equities we would, therefore, choose to grant succession certificate to Vidhyadhari but with a rider that she would protect the 1/5th share of Sukhrana Bai in Sheetaldeen's . properties and would hand over the same to her. As the nominee she would hold the 1/5th share of Sukhrana Bai in trust and would be responsible to pay the same to Sukhrana Bai. We direct that for this purpose she would give a security in the trial Court to the satisfaction of the trial Court." 9. properties and would hand over the same to her. As the nominee she would hold the 1/5th share of Sukhrana Bai in trust and would be responsible to pay the same to Sukhrana Bai. We direct that for this purpose she would give a security in the trial Court to the satisfaction of the trial Court." 9. Keeping in view law laid down by the apex Court in the aforesaid case and also scheme of grant of compassionate appointment which provides that children of a deceased Government servant shall be entitled for grant of compassionate appointment subject to conditions enumerated in the policy relating to grant of compassionate appointment there remains no doubt that children born out of second marriage even though the deceased employee is a Hindu and has contracted second marriage during subsistence of his first marriage shall be entitled for consideration for grant of compassionate appointment. In the present case it is not in dispute that the petitioner is son of a deceased Government servant though he was born out of second marriage during the subsistence of the first marriage and the first wife has also given an affidavit that she does not have any objection in case the petitioner is appointed on compassionate ground and therefore, there appears to be no justification on the part of the respondents in cancelling the appointment already granted to the petitioner by an impugned order dated 6.11.2002. Resultantly, the petition stands allowed and disposed of. 10. With the aforesaid observation, the present writ petition stands allowed and disposed of. No order as to costs. 11. Certified copy as per rules.