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2018 DIGILAW 2466 (ALL)

Anand Tiwari v. Union Of India

2018-12-05

YASHWANT VARMA

body2018
JUDGMENT : Yashwant Varma, J. Heard Sri A.C. Tiwari, learned counsel for the petitioner and Sri Kunwar Rakesh Kumar for the Union respondents as well a Sri Sanjeev Kumar Mishra, learned counsel appearing for the respondent No. 5. This petition assails an order dated 3 February 2016 in terms of which the claim of the petitioner for appointment on compassionate grounds has been negatived. The respondents take the position that the petitioner is the son of the second wife of the deceased Government servant and that since the second marriage was contracted without the requisite permission of the Department, no relief can be accorded to him. Pursuant to the last order passed on this petition, counter affidavits have been filed by the respondents including the fifth respondent herein. The fifth respondent, it become relevant to note, is the first wife of the deceased government servant. As per disclosures made in paragraphs 5 and 7 of this affidavit, she has spoken of the matter having been compromised between the surviving family members of the deceased employee and that she has no objection to the appointment of the petitioner on compassionate grounds. In the counter affidavit filed by the Union respondents, the objection principally taken is with reference to an order passed by the Ministry of Railways dated 2 January 1992 which states that appointment on compassionate grounds to the second widow and her children are not to be considered unless the administration has permitted the second marriage in special circumstances. Sri Tiwari, learned counsel for the petitioner has drawn the attention of the Court to the judgment rendered by a Division Bench of this Court in Union of India & others Vs. Amit Kashyap & others to submit that the said decision takes note of the judgment of the Calcutta High Court which has struck down the Circular dated 2 January 1992 as being arbitrary and ultra vires. In view thereof, Sri Tiwari submits that the objection taken would not sustain. However this Court does not deem it appropriate to record any independent findings since, the Circular if it has been quashed on the ground of constitutional invalidity it would cease to exist all together. The Court is further constrained to record that it is handicapped in proceeding on this line further in the absence of the judgment of the Calcutta High Court being produced. The Court is further constrained to record that it is handicapped in proceeding on this line further in the absence of the judgment of the Calcutta High Court being produced. However it is also relevant to note that the respondents herein admit that the Calcutta High Court has struck down the Circular in question and that the said decision has attained finality. This Court does not deem it necessary to dwell on this aspect any further since the claim of the petitioner merits acceptance on a more fundamental ground. The primary question which appears to arise for determination is whether merely because the deceased Government servant married a second time without the permission of the Department, the same would result in the petitioner being denuded of the right to be considered for appointment on compassionate grounds. In the considered view of this Court, the decision taken by the respondents is clearly rendered unsustainable since even though a second marriage may be void in terms of Section 5 of the Hindu Marriage Act, the child borne out of such a void marriage is not illegitimate. This is clearly provided under Section 16 of the Act. Dealing with an identical controversy, the Supreme Court in Rameshwari Devi Vs. State of Bihar and others made the following pertinent observations: "It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which is governed by the relevant rules, It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment. 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 rights, 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 rights. 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. 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, DAY 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, Rtd. 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." From the above, it is evident that the petitioner cannot be viewed as an illegitimate child of the deceased Government servant. The validity or otherwise of the second marriage entered into by the deceased Government servant cannot result in the petitioner being deprived of his right of consideration. The Court additionally notes that the Scheme under which compassionate appointment is sought refers to a "suitable ward" of the deceased Government servant who dies in harness. Viewed on its plain language, it is evident that the petitioner would clearly fall within the expression of a "suitable ward" as normally understood and therefore, also the stand taken by the respondents cannot be countenanced. Accordingly and for all the aforesaid reasons this writ petition is allowed. The impugned order dated 3 February 2016 is quashed. The matter shall stand remitted to the concerned authority for taking a decision afresh bearing in mind the observations made herein above. This entire exercise be completed by the respondents with expedition and preferably within a period of two months from the date of production of a certified copy of this order.