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2024 DIGILAW 2532 (ALL)

Kumari Manisha v. State of U. P.

2024-12-17

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. 1. This writ petition is directed against an order of the Superintendent of Police, Maharajganj dated 2.7.2017, rejecting the petitioner's claim for compassionate appointment. 2. The petitioner, Kumari Manisha, is the daughter of the late Virendra Prasad, a Constable in the Government Railway Police. He died in harness on 26.8.2013, after an illness. The late Virendra Prasad had two wives. Smt. Dulari Devi, he had married first, born of whom were two sons, Umesh Kumar, Rakesh Kumar and four daughters, Km. Sarita, Km. Suman, Km. Punam and Km. Renu. He married a second time Smt. Saraswati Devi, of whom were born three daughters, to wit, Km. Manisha (the petitioner), Km. Isha and Km. Nisha. The petitioner says that the late Virendra Prasad had solemnized his marriage with Smt. Saraswati Devi, with the consent of his first wife as well as the other family members. Therefore, both wives are said to hold equal rights upon their husband's estate, retirement benefits and privileges. Both the wives and their children were living with the late Virendra Prasad, being on good terms until Virendra Prasad's demise. After Virendra Prasad's death, according to the petitioner, the family pension as well as other allowances were credited in the name of Smt. Dulari Devi. By consent of Smt. Saraswati Devi, the petitioner's mother, an agreement was penned, in terms whereof the pension and other allowances would be distributed equally between both wives of the deceased. The said agreement was inked on 1.3.2014. 3. The petitioner says that the deceased's elder son, Umesh Kumar, born of Smt. Dulari Devi, is 38 years old, well-settled in his business and lives in his parental house happily alongwith his family. The other son, born of Smt. Dulari Devi, Rakesh Kumar, is also well-settled in a Government service. He is a junior engineer. All daughters, born of the deceased's marriage with Smt. Dulari Devi, to wit, Smt. Sarita, Smt. Suman, Smt. Punam and Smt. Renu, are all well-settled in their matrimonial homes and living happily. The petitioner also says that there was a division of funds paid to Smt. Dulari Devi towards death-cum-retirement benefits between the two wives of Virendra Prasad, contrary to the contract agreed upon and reduced to writing on 1.3.2014. It is said that the post retiral funds were not equally divided nor was the monthly pension. The petitioner also says that there was a division of funds paid to Smt. Dulari Devi towards death-cum-retirement benefits between the two wives of Virendra Prasad, contrary to the contract agreed upon and reduced to writing on 1.3.2014. It is said that the post retiral funds were not equally divided nor was the monthly pension. This may not be much in issue because this cause is about the petitioner's right to compassionate appointment on account of her father's demise in harness. The only thing relevant that concerns the distribution of funds is that the deceased's family comprising his second wife and daughters did not receive any substantial benefit. According to the petitioner, as far as the death-cum-retirement benefits are concerned, all those were substantially retained by the deceased's first wife, Smt. Duari Devi, who was paid these funds by the respondents. 4. The petitioner says that she has no source of income and is very poor. She is suffering in life due to lack of education and livelihood, as are other members of the family. The petitioner made an application, seeking compassionate appointment under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short, 'the Rules of 1974') before the Superintendent of Police, Maharajganj on 25.9.2013. It is said, on the other hand, that the deceased's son Rakesh Kumar, who too has staked claim for compassionate appointment, is well-settled in life, as are his brother and the four sisters, all of whom are happily married. The petitioner pursued her claim with diligence, but nothing came out of it. She moved Writ-A No. 12217 of 2015 before this Court, which was disposed of with a direction to the Superintendent of Police, Maharajganj to consider and decide the petitioner's claim preferably within a period of four months from the date of production of a certified copy of the order passed in the aforesaid writ petition, after putting the other private respondents to notice. 5. It is in consequence of the aforesaid direction that the petitioner's claim for compassionate appointment came to be rejected by the impugned order dated 2.7.2017. 6. Aggrieved, this writ petition has been instituted. 7. A notice of motion was issued on 8.8.2017. In compliance, a counter-affidavit has been filed on behalf of respondent No. 2 on 6.11.2017 and another on behalf of respondent No. 3 on 18.4.2018. 6. Aggrieved, this writ petition has been instituted. 7. A notice of motion was issued on 8.8.2017. In compliance, a counter-affidavit has been filed on behalf of respondent No. 2 on 6.11.2017 and another on behalf of respondent No. 3 on 18.4.2018. Two rejoinders have also been filed. 8. Heard Mr. Sunil Kumar, learned Counsel for the petitioner, Mr. Jitendra Shanker Pandey, learned Counsel on behalf of respondent No. 3 and Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel on behalf of respondent Nos. 1 and 2. 9. A perusal of the impugned order shows that in essence the Superintendent of Police has held that the deceased's second marriage to Smt. Saraswati Devi, the petitioner's mother, was void under the Hindu Marriage Act, 1955, the deceased's first wife, Smt. Dulari Devi, being alive at that time. The Superintendent of Police, Maharajganj has relied upon the authorities of this Court in Ramesh Chandra Verma v. U.P. Power Corporation Ltd. and others, (2013) 3 UPLBEC 2198 and Ramesh Chand v. Executive Engineer and others, 2012 (1) ADJ 143 (DB). It is then remarked that the deceased's act in marrying a second time during the subsistence of a valid marriage and his spouse being alive, violates Rule 29 of the Uttar Pradesh Government Servants Conduct Rules, 1956, all of which would render the marriage void. Reliance has also been placed upon the decision of the Supreme Court in Rameshwari Devi v. State of Bihar and others, (2000) 2 SCC 431 and Rakesh Kumar Pandey v. State of U.P. 2006 SCC Online All 469. It is concluded in the order impugned that since the petitioner was born of the deceased's second marriage to Smt. Saraswati Devi during the lifetime of his first wife, Smt. Dulari Devi, the petitioner is not entitled to be considered for compassionate appointment. 10. Now, the reasoning in the impugned order primarily proceeds on principle that children born of a void marriage, though legitimate, have a right in the property of their parents, but that would not extend to compassionate appointment as that is not a right to property of the deceased parent, to wit, Virendra Prasad. 10. Now, the reasoning in the impugned order primarily proceeds on principle that children born of a void marriage, though legitimate, have a right in the property of their parents, but that would not extend to compassionate appointment as that is not a right to property of the deceased parent, to wit, Virendra Prasad. It is true that a limited right has been given to children born of void marriages and a marriage solemnized by a Hindu during the lifetime of his wife, without the marriage being annulled or dissolved in accordance with law, would be void. The limited right under Section 16(3) of the Hindu Marriage Act, 1955 is the right to inheritance of property belonging to the parents. If this reasoning were extended, a right to public employment, like compassionate appointment, may well be found not to extend to children of a void marriage, going by a narrow and literal interpretation of the Rules of 1974, in particular, the definition of 'family'. Nevertheless, tested on the anvil of Article 14 of the Constitution, their Lordships of the Supreme Court in Union of India and another v. V.R. Tripathi, (2019) 14 SCC 646 , found it difficult to uphold this classification between children as valid and held it to be violative of Article 14. Children, born whether of a void marriage, once legitimate, were held equally entitled to a consideration for compassionate appointment as children born of a valid marriage. The facts in V.R. Tripathi (supra) would show that the deceased was an employee of the Central Railways posted at Mumbai, who died in harness. He had contracted a second marriage during the subsistence of the first. A son born of the second marriage to the deceased employee had staked claim for compassionate appointment that was rejected by the Railways. This was done on the strength of a circular, which said that in cases of employees marrying a second time during the lifetime of the first wife, while retirement-cum-death benefits could be shared by both widows due to Court orders, or otherwise on the merits of a particular case, appointment on compassionate ground to the second widow or her children would not be considered unless the Railway Administration had permitted the second marriage in special circumstances, taking into account the personal law etc. The Central Administrative Tribunal, which was moved by the deceased employee's son, held in favour of his right to a consideration for compassionate appointment and the Railways' writ petition carried to the Bombay High Court was dismissed. Affirming the orders of the High Court, it was held in V.R. Tripathi: “15. In sub-section (1) of Section 16, the legislature has stipulated that a child born from a marriage which is null and void under Section 11 is legitimate, regardless of whether the birth has taken place before or after the commencement of amending Act 68 of 1976. Legitimacy of a child born from a marriage which is null and void, is a matter of public policy so as to protect a child born from such a marriage from suffering the consequences of illegitimacy. Hence, though the marriage may be null and void, a child who is born from the marriage is nonetheless treated as legitimate by sub-section (1) of Section 16. One of the grounds on which a marriage is null and void under Section 11 read with clause (i) of Section 5 is that the marriage has been contracted when one of the parties had a spouse living at the time of marriage. A second marriage contracted by a Hindu during the subsistence of the first marriage is, therefore, null and void. However, the legislature has stepped in by enacting Section 16(1) to protect the legitimacy of a child born from such a marriage. Sub-section (3) of Section 16, however, stipulates that such a child who is born from a marriage which is null and void, will have a right in the property only of the parents and none other than the parents. 16. The issue essentially is whether it is open to an employer, who is amenable to Part III of the Constitution to deny the benefit of compassionate appointment which is available to other legitimate children. Undoubtedly, while designing a policy of compassionate appointment, the State can prescribe the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. However, it is not open to the State, while making the scheme or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee. The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires. 17. Even if the narrow classification test is adopted, the circular of the Railway Board creates two categories between one class of legitimate children. Though the law has regarded a child born from a second marriage as legitimate, a child born from the first marriage of a deceased employee is alone made entitled to the benefit of compassionate appointment. The salutary purpose underlying the grant of compassionate appointment, which is to prevent destitution and penury in the family of a deceased employee requires that any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved. The learned Additional Solicitor General has urged that it is open to the State, as part of its policy of discouraging bigamy to restrict the benefit of compassionate appointment, only to the spouse and children of the first marriage and to deny it to the spouse of a subsequent marriage and the children. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination.” 11. The question once again arose in Mukesh Kumar and another v. Union of India and others, (2022) 14 SCC 161 , in the context of the Railway Board Circular, saying that compassionate appointment cannot be granted to children born of a second wife to a deceased employee. In Mukesh Kumar (supra), a three Judge Bench of the Supreme Court examined the issue holding that denial of opportunity to a consideration for compassionate appointment to a child born of a second marriage to a deceased employee contracted during the lifetime of the first wife was discriminatory. Mukesh Kumar too was a case where the deceased employee had married again during the lifetime of his first wife. In Mukesh Kumar, it was held: “7. This Court in Union of India v. V.R. Tripathi, (2019) 14 SCC 646 : (2020) 1 SCC (Civ) 768 : (2020) 2 SCC (L&S) 301 held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. This judgment in Union of India v. V.R. Tripathi, (2019) 14 SCC 646 : (2020) 1 SCC (Civ) 768 : (2020) 2 SCC (L&S) 301 has now been followed by a number of High Courts as well [See K. Santhosha v. Karnataka Power Transmission Corpn. Ltd., 2021 SCC Online Kar 12989 : (2022) 1 Kant LJ 154 (decided on 24.6.2021 by the High Court of Karnataka); Yuvraj Dajee Khadake v. Union of India, 2019 SCC Online Bom 299 (decided on 21.2.2019 by the High Court of Bombay); Union of India v. Rohit Chand, 2020 SCC Online Del 157 (decided on 24.1.2020 by the High Court of Delhi)]. 8. Apart from the discrimination ensuing from treating equals unequally, which is writ large as demonstrated in the judgment of this Court referred to above, there is also discrimination on the ground of descent, which is expressly prohibited under Article 16(2). In V. Sivamurthy v. State of A.P., (2008) 13 SCC 730 : (2009) 1 SCC (L&S) 335 : (SCC pp. 741-42, Para 18) “18. The principles relating to compassionate appointments may be summarised thus: (a) Compassionate appointment based only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.(b) Two well-recognised contingencies which are carved out as exceptions to the general rule are:(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner. Another contingency, though less recognised, is where landholders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project-affected persons. Another contingency, though less recognised, is where landholders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project-affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation.)(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.(d) Compassionate appointments are permissible only in the case of a dependent member of the family of the employee concerned, that is, spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts.”�*Ed. : Para 18 corrected vide Official Corrigendum No. F.3/Ed.B.J./92/2008 dated 10.11.2008.], this Court observed that appointments made only on the basis of descent is impermissible. However, compassionate appointments are a well-recognised exception to the general rule if they are carved out in the interest of justice to meet public policy considerations [Director General of Posts v. K. Chandrashekar Rao, (2013) 3 SCC 310 , para 18 : (2013) 1 SCC (L&S) 596. Further, constitutionality of compassionate appointments was upheld in State of Haryana v. Ankur Gupta, (2003) 7 SCC 704 , para 6 : 2003 SCC (L&S) 1165; Yogender Pal Singh v. Union of India, (1987) 1 SCC 631 , para 17.]. It lends justification only that far and no further. 9. While compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. In this regard, “descent”� must be understood to encompass the familial origins of a person [See, Gazula Dasaratha Rama Rao v. State of A.P., 1960 SCC Online SC 39 : (1961) 2 SCR 931 : AIR 1961 SC 564 ]. Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant's legitimacy as their child. Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant's legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognising only the right of legitimate descendant. Apart from the fact that strict scrutiny would reveal that the classification is suspect, as demonstrated by this Court in Union of India v. V.R. Tripathi, (2019) 14 SCC 646 : (2020) 1 SCC (Civ) 768 : (2020) 2 SCC (L&S) 301, it will instantly fall foul of the constitutional prohibition of discrimination on the ground of descent. Such a policy is violative of Article 16(2).” 12. This then being the position of the law, it is idle for the respondents to contend that the petitioner has no valid candidature to assert for compassionate appointment under the Rules of 1974. Therefore, in the present case, the Head of the Department or office faced with the rival claims of the petitioner and respondent No. 3 has to regard both claims as maintainable and then judge the suitability for appointment on merits in accordance with Rule 7 of the Rules of 1974. 13. In the result, this petition succeeds and is allowed. The impugned order dated 2.7.2017 passed by the Superintendent of Police, Maharajganj is hereby quashed. A mandamus is issued to the Superintendent of Police, Maharajganj, ordering him to consider both claims, that is to say, the petitioner's and that of respondent No. 3, to compassionate appointment in accordance with Rule 7 of the Rules of 1974, within eight weeks of receipt of a copy of this judgment. The interim order dated 5.7.2024 is hereby vacated. 14. There shall be no order as to costs. 15. Let a copy of this judgment be communicated to the Superintendent of Police, Maharajganj by the Registrar (Compliance).