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Shivanshu Misra vs State Of U.P. Thru … on 5 April, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

[A.F.R]

[Reserved On 06.02.2018 ]

[Delivered on 05.04.2018 ]

Court No. – 19

1. Case :- SERVICE SINGLE No. – 3744 of 2016

Petitioner :- Shivanshu Misra

Respondent :- State Of U.P. Thru Prin.Secy.Panchayat Raj Civil Sectt.Ors.

Counsel for Petitioner :- Mahendra Pratap Singh,Sanjay Singh

Counsel for Respondent :- C.S.C.,A M Tripathi,Amarendra Kumar Bajpai,Arjun Singh Somvanshi

AND

2. Case :- SERVICE SINGLE No. – 1684 of 2015

Petitioner :- Dheeraj Mishra

Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Panchayti Raj Lko.Ors

Counsel for Petitioner :- Mohd. Babar Khan,Amarendra Kumar Bajpai,Anoop Kumar Vajpayee

Counsel for Respondent :- C.S.C.,Shreeprakash Singh

Hon’ble Vivek Chaudhary,J.

1. These are two writ petitions, one filed by Sri Shivanshu Misra and other, by Sri Dheeraj Mishra. Sri Shivanshu Misra has filed writ petition challenging the order dated 14.8.2015 and 14.9.2015 whereby his appointment made under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short Dying-in-Harness Rules) has been set aside by the O.P. No.2, Director, Panchayat Raj, U.P., Lucknow and his representation is also rejected by the O.P. No.2.

Writ Petition No.1684 (S/S) of 2015 is filed by Sri Dhiraj Mishra for considering his representation for appointment under the Dying-in-Harness Rules and also for quashing the order of appointment under Dying in Harness Rules earlier issued in favour of Sri Suivanshu Misra.

2. Facts of the case are that late Sri Chhatrapal Mishra was working as permanent Panchayat Inspector (Udyog) in Panchayat Raj department. He died in harness leaving behind following legal heirs:-

1. Smt. Shanti Dev aged about 44 years (wife)

2. Dhiraj Mishra, aged about 30 years (son)

3. Vinod Mishra, aged about 28 years (son)

4. Punit Kumar Mishra, aged about 28 years (son)

3. Sri Dhiraj Mishra moved an application for appointment under the 1974 Rules. Such an application for appointment under the Dying-in-Harness Rules was also moved by his mother Smt. Shanti Devi. The said matter was not decided. It appears that Sri Chhatrapal Mishra, while having his first wife alive, was also having a second wife namely, Smt. Sarita and Sri Shivanshu Misra is son of deceased employee from Smt. Sarita. It further appears that District Panchyayat Raj Adhikari by his order dated 6.1.2015 gave appointment under the Dying-in-Harness Rules to Sri Shivanshu Misra. Representations were made before the authorities against the said appointment and the Director Panchayat Raj by the impugned orders have cancelled the said appointment. While cancelling the said appointment, the Director Panchayat Raj has referred to the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 . The reason given for cancelling appointment is that, since the second marriage of late Chhatrapal Misra was illegal, hence Sri Shivanshu Misra could not have been appointed and it was Sri Dhiraj Mishra who was entitled to be appointed under the Dying-in-Harness Rules.

4. I have heard learned counsel for parties in both the writ petitions and have gone through the records with the assistance at length.

5. Learned counsel for Sri Shivanshu Misra has strongly placed reliance upon the judgment of Hon’ble Supreme Court in the case of Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma Ors. Vs. K. Devi Ors. (1996) 4 SCC 76, paragraphs 83 and 84 which read as under:-

“83. In view of the legal fiction contained in Section 16, the illegitimate Children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.

84. Obviously, appellants 2 to 6 were born prior to the date on which amendments were introduced in Section 16(1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislation prohibition on the second marriage, be treated as legitimate, and would, therefore, inherit the properties of their father, Raman Nair, under Section 16(3) of the Act.”

Reliance is further placed in the case of Bakulabi and another. Vs. Gangaram and another, (1988) 1 SCC 537, paragrpah-7 of the judgment which reads as under:-

“7. The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision. No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate. (See Pathumma and another v. Mahammad, [1986] 2 SCC 585). Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child. If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of s. 16(1) of the Hindu Marriage Act, 1955, which reads as follows:

“16(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 or 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.”

Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses (b) and (c) of s. 125(1) of the Code specifically referring to an illegitimate child. We, therefore, hold that the order of the Judicial Magistrate allowing the maintenance to the appellant No. 2 was correctly passed.”

Reliance has also been placed on the case of Rameshwari Devi. Vs. State of Bihar and others, AIR 2000 SC 735, para 14, 15 and 16 of which read as under:-

“14. 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. 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.

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 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. 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, 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.

16. Having considered all the facts of the case as presented before us we do not find any error in the impugned judgment of the Division Bench of the Patna High Court upholding the judgment of the learned single Judge referred to in the beginning of this judgment. The appeal, therefore, fails and is dismissed. However, there shall be no order as to costs.”

6. Thus, from the aforesaid law, it is clear that a child born from a second marriage has right to inherit from his father despite the marriage being illegal. The same would not impact the rights of the child to inherit from his father. The definition of family under the Dying-in-Harness Rules under Section 2 (c) is relevant which reads as under:-

“(c) “family” shall include the following relations of the deceased Government servant:

(i) Wife or husband:

(ii) Sons;

(iii) Unmarried and widowed daughters;

(iv) if the deceased was unmarried Government servant, brother, unmarried sister and widowed mother dependent on the deceased Government servant;”

7. The said definition came to be considered in the case of Anurag Chand. Vs. Director of Education(Basic) Chairman, Basic Shiksha Parishad, U.P. Allahabad Ors., 2004 (2) LBESR 736 (Ald) 1280. In the said case, the step mother had expired and the step son has applied for appointment under Dying-in-Harness Rules. This Court after referring the law on the issue, held as under:-

“5. The question that arises for consideration is, whether a uterine son could only be included in the definition clause of “family” or whether a step son could also be included.

6. In my view, the word “family” has to be liberally construed. In Smt. Kusum Devi v. State of U.P. and others, 2001(3) E.S.C. 1283 (All), it was held that a divorced daughter of the deceased would be covered under the definition of family and would be entitled to an appointment under the Dying in Harness Rules, 1974. In Smt. Urmila Devi v. U.P. Power Corporation, Lucknow and others, 2004(1) LBESR 234(All) : 2004(1) E.S.C.(AII) 180, it was held that a daughter-in-law of the deceased son would be also covered under the definition of family and would be entitled for appointment.

7. In my view, a stepson would be covered under the definition of word ‘family’ and would be entitled for appointment.”

8. A similar issue came up for consideration again in the case of Priti (Kumari) Vs. State of U.P. and others, (2005) 2 UPLBEC 1194, where again this Court held in para 6 and 7 as under:-

“6. The Rules of 1974, have been made as a welfare measure, to provide employment to the Dependants of the Government servant dying in the harness provided other conditions are fulfilled. The definition of word ‘family’ in Rule 2 (c) includes wife or husband, sons un-married and widowed daughters and if the deceased was unmarried Government servant, brother, un-married sister and widowed mother dependent on deceased the Government servant. The word ‘un-married or widowed daughter’ in the Rule 2 (c) (iii) cannot exclude daughters who are declared to be legitimate under Section 16 (1) of Hindu Marriage Act, 1955. Section 16 was substituted by Act No.68 of 1976. The protection given to the such children, who are not to be blamed for the illegitimacy of the second marriage, must be given a wide interpretation to the Rules of 1974, by way of a measure of Social Welfare. The first wife of the deceased Government Servant Smt. Ram Kumari Devi did not have any issue. Both the widows have given affidavits expressing no objection to the compassionate appointment, and that both of them have jointly obtained certificates for succession for the funds from the Court of civil Judge (SD) in Misc. Case No.75 of 2002, decided on 18.1.2003.

7. The writ petition is consequently allowed. The respondents are directed to decide the application for compassionate appointment afresh treating the petitioner to be eligible for such appointment. The required consideration shall be made within two months from the date of communication of this order.”

9. Again, a Division Bench considered this aspect in the case of Ramesh Chand. Vs. Executive Engineer, Electricity Distribution Division-II Ors., 2012 (2) ALJ 363. Para 22 to 27 thereof are relevant for the said purpose which read as under:-

“22. Section 11 of the Hindu Marriage Act read with Section 5 (i) declares second marriage during lifetime of first spouse to be invalid. However, Section 16 grants legitimacy to the children, who were earlier not considered to be legitimate:

sub-section (1) of Section 16 (Section 16 (1)) of the Hindu Marriage Act declares that the children born out of void marriages under Section 11 to be legitimate;

Sub-section (2) of Section 16 (Section 16 (2)) of the Hindu Marriage Act grants a similar legitimacy to the children born out of voidable marriage under Section 12 of the Hindu Marriage Act.

23. The logical conclusion to the grant of legitimacy to such children is that there is no difference between them and children born out of valid marriages: they have same rights as the children born out of valid marriages unless there is any specified exception.3

3. See. P. Eravath K. K. Amma v. K. Devi, 1996 All CJ 961: (AIR 1996 SC 1963); Rameshwari Devi v. State of Bihar (2000) 2 SCC 431: (2000 Lab IC 976); and Jinia Keotin v. Kumar Sitaram, JT 2002 (10) SC 510.

24. The Hindu Marriage Act provides one exception. It is mentioned in sub-section (3) of Section 16 (Section 16 (3) of the Hindu Marriage Act.

25. Section 16 (3) of the Hindu Marriage Act provides that nothing contained in Section 16 (1) and 16 (2) will construe as conferring any right upon such children to the property other than of their parents. Apart from Section 16 (3), there is no other restriction to the rights available to such children.

26. In our opinion:

Section 16 (3) is an exception rather than extent of the rights under Section 16 (1) and 16 (2) of the Hindu Marriage Act;

The appellant was the legitimate child under Section 16 (1) of the Hindu Marriage Act;

He was entitled to all rights as a son, who might have been born out of valid marriage except in regard to inheriting the property in question other than of his parent.

27. The natural consequences of the aforesaid conclusion is that the appellant would be covered within the definition of the word ‘family’ under Rule 2 (ga)4 of the Dying-in-Harness Rules and would be entitled to have his application considered on merit under Rule 55 of the Dying-in-Harness Rules.”

10. In view thereof, it cannot be said that Sri Shivanshu Misra is not entitled to be considered for appointment under Dying-in-Harness Rules. The order passed by the O.P. No.2 Director, Panchayat Raj, U.P., Lucknow cancelling his appointment to the said extent is not valid. However, Rule 7 of the Dying-in-Harness Rules is also relevant which reads as under:-

“7. Procedure when more than one member of the family seek employment.–

“If more than one member of the family of the deceased Government Servant seek employment under these rules, the Head of Office shall decide about the suitability of the persons for giving employment. The decision will be taken keeping in view also the overall interest of the welfare of the entire family, particularly the widow and the minor members thereof.”

11. Therefore, in the present case, when more than one family member has claimed for appointment, it was incumbent upon the appointing authority to refer the matter to the Head Office which could have decided the matter as per the provisions of the Dying-in-Harness Rules, more specifically Rule 7 of the said Rules.

12. A perusal of the appointment letter of Shivanshu Misra dated 6.1.2015 shows that while appointing him, the appointing authority District Panchayat Raj Adhikari did not consider the case of Sri Dhiraj Mishra. Hence there was a gross violation of Rule 7 of the Dying-in-Harness Rules. It was incumbent upon the Head Office to consider both the applications and look into the suitability of a member of the family who would look after the overall interest of the welfare of the entire family particularly, widow and minor members thereof.

13. Hence I find it a fit case to remand the matter requiring the Director, Panchayat Raj, Uttar Pradesh to consider the applications of both Sri Shivanshu Misra and Dhiraj Mishra and/or any other family member, who applies, afresh in accordance with the provisions of the Dying-in-Harness Rules, more specifically taking into account the provisions of Rule 7 of the aforesaid Rules. Such an exercise shall be done by the O.P. No.2, within a period of two months from the date a certified copy of this order is placed before him.

14. With the aforesaid observations and directions, the present writ petition is disposed of.

Order Date :- 5.4.2018

Rajneesh DR-PS)

(Vivek Chaudhary, J.)

 

 

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