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2015 DIGILAW 435 (UTT)

MADHUR NAWANI v. STATE OF UTTARAKHAND

2015-09-08

SERVESH KUMAR GUPTA

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JUDGMENT Hon’ble Servesh Kumar Gupta, J. Having heard learned Counsel for the parties, it transpires that the petitioner Mr. Madhur Nawani has come up before the Court seeking the issuance of a writ in the nature of certiorari quashing the impugned order dated 17.9.2012 passed by the District Judge, Dehradun on the report of the Three-Members Committee of the District Court. He has further sought a writ in the nature of mandamus directing the respondents to appoint the petitioner on compassionate ground keeping in view his eligibility. 2. The brief facts, as have been adverted during the course of arguments and in the averments, are that one Mr. Om Prakash Nawani, a Class III employee in the District Court, Dehradun, passed away on 3.4.2012. His son Madhur Nawani (Petitioner) moved an application dated 2.6.2012 for his appointment under the dying in harness rules. A Three-Members Committee of judicial officers led by the Fist Additional District Judge, Dehradun was constituted to consider the matter and make its recommendations. Such Committee, vide its report dated 27.8.2012, did not recommend the case of the petitioner for appointment and so the learned District Judge, Dehradun approved such negative report of that Committee and thus the appointment was denied to the petitioner. As regards the gratuity, GPF and other funds of the deceased, it was directed that his legal heirs may apply for the succession certificate before the competent court. This so happened because during the enquiry by the Committee, it was found that the first wife of petitioner’s father, namely, Smt. Madhu Nawani, died on 5.9.2011 and, at the time of death, petitioner’s father used to reside with petitioner’s mother Smt. Prem Lata Nawani, who is the second wife of the deceased. Petitioner claims himself to be born out of the wedlock of Smt. Prem Lata Nawani and Om Prakash Nawani decades before during the subsistence of first marriage of Om Prakash Nawani with Smt. Madhu Nawani. 3. It was submitted that when the petitioner’s application was not favourably considered, then he moved a representation to Hon’ble Chief Justice of this High Court on 22.10.2012 and thereafter moved another representation dated 2.2.2013, but such representations have not been taken into consideration, hence of no avail. 4. 3. It was submitted that when the petitioner’s application was not favourably considered, then he moved a representation to Hon’ble Chief Justice of this High Court on 22.10.2012 and thereafter moved another representation dated 2.2.2013, but such representations have not been taken into consideration, hence of no avail. 4. In the service record of the deceased Om Prakash Nawani, although the name of Smt. Madhu Nawani was mentioned, but when this son (petitioner) was born, then in the nomination column, the letter “R” was added after the word “Madhu” to make it “Madhur”, which is the name of petitioner; and for showing the relationship, the word “wife” was cut by drawing a line and another word “son” was written instead. So, this interpolation in the service record of the deceased, as found by the Committee, made his case more weak for such appointment. 5. This Court has been taken to the various papers showing that Smt. Prem Lata Nawani, the mother of the petitioner, was always having the status of the second wife of the deceased. It appears that the petitioner was basically the resident of Karnprayag, District Chamoli and the Family Register, issued by the competent officer under his signatures, displays the name of Smt. Prem Lata Nawani as the wife of Om Prakash Nawani and, at the same time, Madhur Nawani has been shown as the son of Om Prakash Nawani. The competent officer has also issued a certificate that the names of Smt. Prem Lata and Madhur Nawani have been inducted in the Family Register on the basis of an affidavit moved on 29.8.2003. The Voter List, which is part of Annexure No. 3 to the petition, also displays the name of Smt. Prem Lata Nawani as the wife of Om Prakash Nawani. The Voter ID Card, another part of Annexure No. 3, displays the name of petitioner’s father as Om Prakash Nawani. Permanent Residence Certificate, issued by the SDM, Karnprayag on 29.8.2003, certifies the identity of petitioner Madhur Nawani as the son of Om Prakash Nawani and this certificate is also a part of Annexure No. 3. 6. It has been stated by the petitioner that from the first wife of his father (Smt. Madhu Nawani), two step brothers are alive, who are Alok Nawani and Prakash Nawani. 6. It has been stated by the petitioner that from the first wife of his father (Smt. Madhu Nawani), two step brothers are alive, who are Alok Nawani and Prakash Nawani. Both have moved an affidavit to the District Judge, Dehradun expressing their “No Objection” if the petitioner is offered the appointment under the dying in harness rules after the death of their father. Copy of such affidavit has been enclosed as Annexure No. 5 to the petition. 7. Petitioner has also enclosed the copy of certificate of passing the High School Examination, wherein his date of birth is written as 18.11.1985 and it also indicates the name of his father as Om Prakash Nawani. In the counter affidavit filed by Shri Brijendra Singh (a judicial officer) on behalf of District Judge has repeatedly averred the claim of the petitioner on the assertion that he could not prove his identity as biological son of the deceased employee. The Court feels that in the presence of such number of documents filed on the record, it would be quite harsh (note less than adding insult to the injury) to the bereaved family to ask to produce some more concrete proof in this regard. It is rather humiliating to the family including petitioner passing through the gross hardship and utter distress. However, to rule out the prowling of imaginatory doubt, the learned District Judge may call the Mother of the petitioner Smt. Prem Lata Nawani (if he so desires) to move an affidavit depicting therein that the petitioner is the son out of her union with the deceased employee Shri Om Prakash Nawani. 8. With all these averments and documentary evidence, the petitioner has come up before this Court. 9. Mr. Siddhartha Sah, learned Counsel appearing for the respondents 2 and 3 has refuted the contention of the petitioner and argued that even if the petitioner is accepted as the son from the second wife of the deceased, then, too, he is the illegitimate child and the relevant rules 5 do not confer this privilege of appointment under the dying in harness to him. 10. 10. This Court is not inclined to accept such argument for the reason that over the times, it has been held by different Courts and even by the Hon’ble Apex Court that the second marriage during the subsistence of the first one may be void or void ab initio, but at the same time, the child produced out of such wedlock is not illegitimate and such child is entitled even for the pensionary benefits of the deceased. In this regard, in the case of Priti (Kumari) Vs. State of U.P. and others, reported in (2005) 2 UPLBEC 1194 , the Hon’ble Allahabad High Court, relying upon the judgment of Bakulabai and another Vs. Ganaram and another, (1998) 1 SCC 537 , has held that such illegitimate child is entitled to maintenance under Section 125 CrPC ignoring the fact of illegitimate marriage, and on this analogy, as a social welfare, the High Court directed the respondents to consider the application of the daughter-child for her appointment on compassionate ground under Rule 5(i). 11. Further, Karnataka High Court, in case of Sri J. Mahendra Vs. The Manager (Electrical) and The Assistant Executive Engineer (Electrical), 2014 (2) AKR 782, relied upon another judgment of Hon’ble Apex Court rendered in Rameshwari Devi Vs. State of Bihar and others, (2000) 2 SCC 431 , wherein it was stated that even if a Government Servant had contracted second marriage during the subsistence of his first marriage, the 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. 12. That apart, Section 16(1) of the Hindu Marriage Act, 1955, which was introduced by Act No. 68 of 1976, postulates as sunder: “16. The Court, therefore, went on to hold that such children would be entitled to the pension but not the second wife. 12. That apart, Section 16(1) of the Hindu Marriage Act, 1955, which was introduced by Act No. 68 of 1976, postulates as sunder: “16. Legitimacy of children of void and voidable marriages.—(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether on not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.” 13. Further the Hon’ble Supreme Court in a decision reported in JT 1996(4) SC 656 (Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others vs. K.Devi and others) while considering the scope of Section 16 of the Hindu Marriage Act, 1955, has observed at paragraph 68 and 80 as follows:- “68. Hindu Marriage Act, 1955 is a beneficent legislation and, therefore, it has to be interpreted in such a manner as advances the object of the legislation. The Act intends to bring about social reforms. Conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as bastards, is the prime object of Section 16. 80. Section 16 contains a legal fiction. It is by a rule of fictio juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable.” 14. So, it is hereby established that the petitioner Madhur Nawani is the son of Om Prakash Nawani from his second wife Smt. Prem Lata Nawani and thus for all purposes like claiming any right in the property, seeking the employment under the dying in harness rules, etc., the law confers him the status of a legitimate child. 15. So, it is hereby established that the petitioner Madhur Nawani is the son of Om Prakash Nawani from his second wife Smt. Prem Lata Nawani and thus for all purposes like claiming any right in the property, seeking the employment under the dying in harness rules, etc., the law confers him the status of a legitimate child. 15. As regards the interpolation in the service record indicated above, the blame cannot be attached either to the petitioner or even to his deceased father because it was just possible that when this son was born out of the second wedlock, then, on the application of deceased employee, the clerk, who was custodian of such record, might have had made this amendment as desired by the deceased employee in his application. So, brining the modification in the name and relationship in the service record is not relevant for the purpose of this writ petition. 16. In view of what has been stated above, the writ petition is allowed and the order dated 17.9.2012 passed by the District Judge, Dehradun as well as the report of the Three-Members Committee (Annexure 1) dated 27.8.2012 are hereby quashed. The writ of mandamus is issued and the District Judge, Dehradun is directed to favourably consider the application of Mr. Madhur Nawani under the rules and offer him appointment accordingly on the Class III post, subject to his having academic qualification, as quickly as possible but not later than 15 days from receiving the certified copy of this judgment. 18. Petition is, thus accordingly, allowed.