IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1305 of 2013
In
Civil Writ Jurisdiction Case No.9329 of 2012
1. The Bihar State Electricity Board
2. The Chairman Bihar State Electricity Board, Vidyut Bhawan, Patna.
3. The Secretary Bihar State Electricity Board, Vidyut Bhawan, Patna.
4. The Joint Secretary Bihar State Electricity Board, Vidyut Bhawan, Patna.
5. The General Manager- Cum- Chief Engineer Bihar State Electricity Board,
Vidyut Bhawan, Patna.
6. The Electrical Executive Engineer Electric Supply Division, Jhanjharpur,
Distt- Madhubani.
7. The Assistant Electrical Engineer Electric Supply Sub- Division, Phulparas,
Madhubani.
8. The Regional Information Officer Mithila Electric Suppy Area, Darbhanga.
… … Appellant/s
Versus
1. Chadra Shekhar Paswan S/O Late Mote Mal Pashwan Resident Of Village-
Raiyam West, Police Station- Bhairav Asthan, Distt- Madhubani.
2. The Joint Secretary, Personnel And Administration Reforms Department
Govt. Of Bihar, Patna.
… … Respondent/s
with
Letters Patent Appeal No. 1608 of 2014
In
Civil Writ Jurisdiction Case No.9329 of 2012
The State Of Bihar through Secretary, General and Administrative
Department, Government of Bihar, Patna.
… … Appellant/s
Versus
1. Chandra Shekhar Paswan S/O Late Motemal Paswan Resident of vill-
Raiyam West,P.S-Bhairav Asthan,Distt,-Madhubani
2. The Bihar State Electricity Board, through its Chairman,Vidyut Bhawan,
Patna
3. The Chairman, Bihar State Electricity Board,Vidyut Bhawan,Patna
4. The Secretary,Bihar State Electricity Board,Vidyut Bhawan, Patna
5. The Joint Secretary,Bihar State Electricity Board,Vidyut Bhawan,Patna
6. The General Manager-cum-Chief Engineer, Bihar State Electricity
Board,Vidyut Bhawan, Patna
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7. The Electrical Executive Engineer, Electric Supply Division, Jhanjharpur,
Distt.-Madhubani
8. The Assistant Electrical Engineer Electric Supply Sub -Division Phulparas,
Madhubani
9. The Regional Information officer, Mithila Electric Supply Area, Darbhanga
… … Respondent/s
with
Civil Writ Jurisdiction Case No. 11445 of 2010
Prakash Kumar Rai Minor S/O Late Ganesh Rai Under The Guardianship Of
Her Mother Nanhaki Devi, W/O Late Ganesh Rai R/O Vill.P.O.- Bhadwar,
P.S. Chandi, Distt.- Bhojpur
… … Petitioner/s
Versus
1. The State of Bihar
2. The Director General Of Police, Govt. Of Bihar, Patna
3. The Deputy Director General Of Police Personal, Govt. Of Bihar, Patna
4. The Deputy Director General Of Police Special Branch, Patna Bihar, Patna
5. The Inspector General Of Police, Bihar, Patna
6. The Deputy Inspector General Of Police Personal Bihar, Patna
7. The Superintendent Of Police Special Branch, Bihar, Patna
8. The Compassionate Appointment Committee, Police Department, Patna
Bihar
… … Respondent/s
Appearance :
(In Letters Patent Appeal No. 1305 of 2013)
For the Appellant/s : Mr.Anand Kumar Ojha, Adv.
For the Respondent/s : Mr. Ajey Kumar, Adv.
(In Letters Patent Appeal No. 1608 of 2014)
For the Appellant/s : Mr Chittranjan Sinha PAAG- 2
Mr. Shashi Shekhar Kr. Prasad, A.C. to PAAG-2
For the BSEB : Mr. Anand Kumar Ojha,Adv.
Mr. Ashok Kumar Karn, Adv.
For private Respondent : Mr. Ajey Kumar, Adv.
(In Civil Writ Jurisdiction Case No. 11445 of 2010)
For the Petitioner/s : Mr.Aditya Nr.Singh 1, Adv.
For the Respondent/s : Mr.Gp8
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE BIRENDRA KUMAR
and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
CAV JUDGMENT
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(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date : 18-04-2019
Since common question of law is involved in these
cases, this order shall dispose of all these cases.
2. Under Clause 10 of the Letters Patent, LPA No. 1305
of 2013 has been preferred by the erstwhile Bihar State Electricity
Board (for short ‘the Board’) against the order dated 13.08.2012
passed by the learned Single Judge in the writ petition bearing
CWJC No. 9329 of 2012.
3. Under Clause 10 of the Letters Patent, LPA No. 1608
of 2014 has been filed by the State of Bihar challenging the
aforestated order dated 13.08.2012 passed by the learned Single
Judge in CWJC No. 9329 of 2012 to the extent whereby circular
no.937 dated 23.06.2005 issued under the signature of the Joint
Secretary, Personnel and Administrative Reforms Department,
Government of Bihar by which a decision had been taken that if a
government servant marries while earlier marriage is subsisting
without the permission of the government, then such spouse and
the ward of such spouse would be disentitled for appointment on
compassionate ground.
4. Under Article 226 of the Constitution of India, CWJC
No. 11445 of 2010 has been filed by the petitioner, a minor, under
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the guardianship of his mother Nanhki Devi for directing the
respondents to appoint him on compassionate ground on the post
of Child Police (Bal Arakshi) since his father, namely, Ganesh Rai
died in harness on 23.02.2008. By way of an interlocutory
application, vide I.A. No. 1924 of 2011, he has prayed for adding
further relief challenging the aforesaid circular no. 937, dated
23.06.2005,
5. Facts giving rise to LPA No. 1305 of 2013 will serve
the purpose for deciding all these cases. One Mote Mal Paswan,
while working as a line man, Electric Supply Sub-Division,
Phulparas, Madhubani died on 12.01.2007 due to cardiac arrest.
He was initially married to one Jeevachi Devi, who gave birth to
two sons. During subsistence of the first marriage, he entered into
marriage with another lady Badamia Devi from whom he had four
sons and two daughters. Since one of his sons Chandra Shekhar
Paswan had passed Class-8 examination, all the heirs of Mote Mal
Paswan collectively took a decision that he should apply for
appointment on compassionate ground. In view of no objection
certificate granted by all the heirs, Chandra Shekhar Paswan
submitted his application for appointment on compassionate
ground. He was informed vide letter no. 1023 dated 22.07.2011
issued by the Board that the Central Compassionate Committee in
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its meeting dated 08.04.2011 rejected his candidature for
compassionate appointment in view of circular no. 937 dated
23.06.2005 issued by the Personnel and Administrative Reforms
Department, Government of Bihar, Patna by which a decision had
been taken that if a government servant gets married again during
the life time of spouse without prior permission of the government
then such spouse and off-spring of such spouse would be
disentitled for appointment on compassionate ground.
6. Being aggrieved by the aforestated order dated
22.07.2011 Chandra Shekhar Paswan filed a writ petition vide
CWJC No. 9329 of 2012 praying therein for setting aside the same
as also for directing the respondents to consider his case afresh
and appoint him without any further delay.
7. By way of an interlocutory application vide I.A. No.
4922 of 2012 in CWJC No. 9329 of 2012, he prayed for adding a
further relief challenging the aforestated circular no. 937 dated
23.06.2005. He filed another interlocutory application vide I.A.
No. 4610 of 2012 for adding the Joint Secretary Personnel and
Administrative Reforms Department, Government of Bihar, Patna,
as respondent no.9. Both the interlocutory applications were
allowed by the learned Single Judge vide order dated 08.08.2012.
8. After hearing the parties, vide order dated
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13.08.2012, the learned Single Judge allowed the writ petition
bearing CWJC No.9329 of 2012. The operative portion of the
order reads as under :-
“In the said circumstances, the impugned
circular/letter dated 23.06.2005 issued by the
Government is contrary to the directions
given by the High Court in the aforesaid
decision. No doubt, the second marriage of a
Government employee during the life time of
the earlier spouse is prohibited under the
rules and regulations of the concerned
department and the Board and a second
marriage of a Hindu male in the life time of
first wife is also prohibited under the personal
law and hence it is a settled law that such a
spouse will not be entitled to any claim or
benefits whatsoever accruing from service of
the deceased employee, but the equally
settled law is that the children from such
spouse shall be entitled to inheritance and
benefits, which accrues from his father even
if the marriage of the father and mother of
such children was not legal as aforesaid. In
this connection, reference may be made to a
decision of a Division Bench of this Court in
case of Purushottam Kumar alias
Purooshottam Kumar vrs. State of Bihar and
others, reported in 2005(3) P.L.J.R. 458.
Apart from the aforesaid propositions of
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law, it is not in dispute that the first wife of
the deceased employee, namely, Jeevachi
Devi died on 20.05.2006 and, thereafter, the
mother of the petitioner Badamia Devi was
the only wife of the deceased employee till
his death on 12.01.2007 and all the children
of the said deceased employee from both his
wives were together suffering hardship due to
the early demise of the bread -earner of the
family and hence they jointly approached the
authority concerned for appointment of the
petitioner on compassionate ground.
Considering the aforesaid facts and
circumstances, it is quite apparent that the
claim of the petitioner for compassionate
appointment is legal and justified and he has
been wrongly denied the benefit to which he
was legally entitled for five long years.
Accordingly, this writ petition is allowed,
the impugned circular/letter dated 23.06.2005
(Annexure 7) is hereby quashed and
consequently the impugned order of the
authority dated 22.07.2011 (Annexure 6) is
also quashed and the respondents are directed
to appoint the petitioner on compassionate
ground on the post, to which he is entitled,
expeditiously preferably within a period of
three months from the date of
receipt/production of this order.”
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9. Being aggrieved by the aforestated order dated
13.08.2012 passed by the learned Single Judge, the Board has
filed an intra-court appeal before the Division Bench vide LPA
No. 1305 of 2013.
10. The Division Bench vide order dated 09.12.2013
noticing conflicting judgments of this Court, referred the Letters
Patent to a larger Bench pursuant to which LPA No. 1305 of 2013
has been placed before us for consideration.
11. For the sake of clarity and convenience, we would
like to reproduce the relevant portion of the reference made by the
Division Bench in its order dated 09.12.2013 hereunder :-
“The respondent is stated to be the son
born to the deceased employee from the
second marriage solemnized by him during
subsistence of the first marriage. The
deceased did not take permission under Rule
23 of the Bihar Government Servant Conduct
Rules, 1976 before solemnizing the second
marriage during subsistence of the first. It
therefore constituted a misconduct. The claim
for compassionate appointment by the son
born from this second marriage has been
denied under a policy decision 23.6.2005
referring to Rule 23 that the personal law had
no relationship with the claim for
compassionate appointment.
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Learned Single judge opined that
the policy dated 23.6.2005 was contrary to a
Bench decision reported in 2004(4) PLJR 366
(Mustaque Ahmad Vs. State Of Bihar) which
primarily directed the State to form a policy
only.
Counsel for the Appellants
submitted that the claim could not have been
allowed in view of the policy dated 23.6.2005
as compassionate appointment was not a
matter of right. There is no finding that the
policy was arbitrary or irrational before
striking it down.
Counsel for the Respondent has
relied upon a Division Bench judgment
reported in 2005(3) PLJR 458 (Purushottam
Kumar @ Purooshattam Kumar Vs. State Of
Bihar).
Service jurisprudence mandates by a
plethora of precedence that compassionate
appointment is an exception to the general
rule for appointment in accordance with
Article 14 preceded by an advertisement and
open merit selection considering that all
employment under the State constitutes a
national wealth and there must be equal
opportunity for all. A compassionate
appointee escapes the rigors of selection
because of which a more genuine candidate
may have to be denied consideration because
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the post had been filled up. But,
compassionate appointment has been
considered as an exception to the same where
the particular facts and circumstances of a
case may reveal it to be a compelling
necessity. It has therefore been held
repeatedly that any such appointment has to
be strictly and only in accordance with the
policy decision of the State and no direction
for compassionate appointment can be given
de hors the policy. A policy decision can be
struck down only if it is arbitrary or irrational
based on no cogent justification or
classification.
Purushottam Kumar (supra) notices
Rule 23 of the Bihar Government Servant
Conduct Rules and holds that a marriage
solemnized by a government servant in
violation of the same constitutes a
misconduct. It then holds that in absence of
any objection during life time of the deceased
it was not relevant for decision of the
controversy. Invoking the personal law under
the Hindu Marriage Act it grants relief relying
on AIR 2000 SC 735 (Rameshwari Devi vs.
State of Bihar Ors) relating to pension
claim holding that child born from such
second marriage was not illegitimate.
In 2002 (2) PLJR 253 (Sanjeev
Kumar Yadav Vs. State of Bihar) the learned
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Single Judge was considering a similar claim
for compassionate appointment denied under
a like policy decision under Rule 23 vide
Government Circular No. 13293 dated
5.10.1991 holding that it would be anomalous
if the claim for compassionate appointment
could originate from the misconduct
committed in service by the deceased. This
has been followed in another Bench decision
reported in 2010 (3) BBCJ 258 (Sarjan Singh
vs. State of Bihar). Similar view has been
taken in 2004(1) PLJR 37 (Vinod Kumar vs.
State of Bihar). Purushottam Kumar (supra)
does not consider these pronouncements. In
(2008) 8 SCC 475 (State Bank of India vs.
Anju Jain), it was held that misconduct in
service can be valid justification to deny
compassionate appointment.
Judicial discipline, in our opinion,
requires that we do not attempt to distinguish
Purushottam Kumar (supra) on basis of para 5
of that judgment.
An important element in judicial
pronouncements is certainty of the legal
position where both the litigant and the State
authorities as also the lawyers are made aware
of the clear exposition of the law so that no
confusion prevails on any aspect for all
concerned.
We, therefore, consider it
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appropriate that the records be laid before
Hon’ble the Chief Justice for the desirability
of constituting a larger Bench to lay down the
correct law on the issue.
In the meantime operation of the
order under appeal shall remain stayed.”
12. At this juncture, it would be pertinent to note that
subsequently the State of Bihar also challenged the aforestated
order dated 13.08.2012 passed by the learned Single Judge in
CWJC No. 9329 of 2012 to the extent whereby the aforesaid
circular no. 937 dated 23.06.2005 was quashed in LPA No. 1608
of 2014. The said appeal came up for hearing before a Division
Bench on 02.02.2015. The Division Bench, vide its order dated
02.02.2015, admitted the appeal and directed the same to be heard
along with LPA No. 1305 of 2013.
13. In CWJC No. 11445 of 2010, vide order dated
23.11.2010, the learned Single Judge referred the writ petition to
the Division Bench doubting the correctness of the ratio laid down
in Purushottam Kumar @ Purooshattam Kumar Vs. State of
Bihar, since reported in 2005(3) PLJR 458 whereby after taking
into consideration rule 23 of the Bihar Government Servant
Conduct Rules, 1976 (for short ‘1976 Rules’), it was held that
though second marriage during lifetime of the first wife is void,
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the child of second marriage is legitimate and cannot be denied
consideration. Subsequently, the Division Bench, vide order, dated
01.04.2011, referred the writ petition to the Full Bench for
consideration of the decision in Purushottam Kumar (Supra). The
reference made by the Division Bench vide order dated
01.04.2011 reads as under:-
“In view of the law laid down by the Division
Bench in the case of Purushottam Kumar @
Purooshattam Kumar Vrs. The State of Bihar
Ors. (Supra), we are of the opinion that the
matter has to be considered by the Full Bench
on the question as to whether the children
borne out from the second wife of the
deceased employee on violation of Rule -23
of the Government Servant Conduct Rules,
1976 are also entitled for such claim of
compassionate appointment. Hence the matter
has to be referred to the Full Bench for re-
consideration of the aforesaid decision.
In that view of the matter, let this
matter be placed before Hon’ble the Chief
Justice for passing an appropriate order.”
14. In these factual backgrounds, these cases have been
placed before us.
15. As seen above, in LPA No. 1305 of 2013, the
Division Bench while referring the appeal to a larger Bench
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noticed the judgment passed by the Supreme Court in General
Manager, State Bank of India Vs. Anju Jain, since reported in
(2008) 8 SCC 475 wherein it was held that misconduct in service
can be held valid justification to deny compassionate appointment.
It also noticed that though rule 23 of the 1976 Rules, which puts
restrictions on a government servant to enter into or contract a
marriage with a person having a spouse living and violation of the
same constitutes misconduct, the learned Single Judge in CWJC
No. 9329 of 2012 allowed the writ petition relying on the Division
Bench judgment in Purushottam Kumar (Supra) whereas in
Purushottam Kumar (Supra) pronouncements made in Sanjeev
Kumar Yadav Vs. State of Bihar, since reported in 2002 (2) PLJR
253, Sarjan Singh vs. State of Bihar, since reported in 2010 (3)
BBCJ 258 and Vinod Kumar vs. State of Bihar, since reported in
2004(1) PLJR 37 holding that it would be anomalous if the claim
for compassionate appointment could originate from misconduct
committed in service by the deceased were not considered.
16. Thus, on the facts and in the circumstances noted
above, the seminal issues for consideration before us are as
under:-
(a) Whether the condition imposed by the circular no.
937 dated 23.06.2005 issued under the signature of
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the Joint Secretary, Personnel and Administrative
Reforms Department, Government of Bihar, Patna
which bars compassionate appointment to the
children born from the second marriage of deceased
employee is legal and justified?
(b) Whether the condition of prior approval of employer
before second marriage becomes sine qua non for
grant of compassionate appointment to the children
born of second marriage to the deceased employee?
(c) Whether the claim for compassionate appointment
can originate from the misconduct committed in
service by the deceased employee?
17. Mr. Anand Kumar Ojha, learned counsel appearing
for the appellants in LPA No. 1305 of 2013 has submitted that the
learned Single Judge while passing the impugned order dated
13.08.2012 in CWJC No. 9329 of 2012 has failed to appreciate
that the circular no. 937 dated 23.06.2005, which has been
adopted by the Board, prohibits children born out of second
marriage without prior permission of the government from
employment on compassionate ground. He has contended that the
learned Single Judge has failed to appreciate that the circular
dated 23.06.2005 was issued in compliance of the order passed in
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Mustaque Ahmad Vs. State of Bihar, since reported in 2004 (4)
PLJR 366. He has pleaded that the misconduct of the deceased
employee by opting for second marriage during the lifetime of the
first wife was bound to have its legal consequences in law. The
learned Single Judge, however, failed to appreciate that
compassionate appointment being not a fundamental and legal
right is open to rejection on the grounds valid and sustainable in
the eyes of law. He has submitted that the Full Bench of this Court
in Union of India through Secretary, Ministry of Railways and
Ors. Vs. Sanjay Kumar, since reported in 2018 (2) PLJR 107 has
denied compassionate appointment to the children born out of
second wife of the deceased employee relying upon a similar
circular of the Railway Board relating to appointment on
compassionate grounds. He has, however, conceded that the
Supreme Court in Union of India Vs. V.R. Tripathi, since
reported in 2019(1) Scale 302 has held contrary to the Full Bench
of this Court in Union of India Vs. Sanjay Kumar (Supra).
18. Mr. Chitranjan Sinha, learned senior counsel
appearing for the State of Bihar in LPA No. 1608 of 2014 has
submitted that the learned Single Judge while passing impugned
order has failed to consider that marrying second spouse in the
lifetime of earlier spouse without prior permission is regarded as
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misconduct by the government servant. To provide compassionate
appointment to such second spouse or such children will be
against the spirit of rule 23 (1) and 23 (2) of the 1976 Rules. He
has contended that past conduct of such employee is of much
relevance. In this regard, he has placed reliance on the decision of
the Supreme Court in State Bank of India Vs. Anju Jain (Supra).
He has pleaded that the learned Single Judge failed to appreciate
that the law of inheritance is general rule whereas compassionate
appointment is only for the government servant, which cannot be
equated with inheritance rule. According to him, circular no. 937
dated 23.06.2005 cannot be said to be violative of any direction of
this Court. He has pleaded that the recent decision of the Supreme
Court in Union of India Vs. V.R. Tripathi (Supra) has also given
liberty to the employer to consider other requirements. The past
conduct of an employee is of paramount consideration. He has
placed reliance in this regard on the decision of the Full Bench of
this Court in Union of India Vs. Sanjay Kumar (Supra).
19. Mr. Ajey Kumar, learned counsel appearing for the
respondent Chandra Shekhar Paswan has submitted that there is
no illegality in the impugned order passed by the learned Single
Judge in CWJC No. 9329 of 2012. He has contended that the
learned Single Judge while passing the order under challenge has
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placed reliance on a Division Bench judgment of this Court in
Purushottam Kumar (Supra) wherein it was held that child of
second marriage is entitled for compassionate appointment. The
Division Bench, in Purushottan Kumar (Supra) had based its
decision on the decision of the Supreme Court in Rameshwari
Devi Vs. State of Bihar, since reported in AIR 2000 SC 735. He
has contended that the Division Bench, while referring the matter
to a Larger Bench, has referred the case of Sanjeev Kumar Yadav
(Supra), which was with regard to misconduct when bigamy was
committed. The facts of the judgments in Sarjan Singh (Supra)
and Vinod Kumar (Supra) were not identical to the facts of the
case in CWJC No. 9329 of 2012.
20. He has submitted that in Sanjeev Kumar Yadav
(Supra), the issue was with regard to misconduct when bigamy
was committed. In Sarjan Singh (Supra), the appellant (the
applicant for compassionate appointment) himself had entered
into two marriages. Similarly, in Vinod Kumar (Supra), the
misconduct was by contracting second marriage by the applicant,
who was seeking compassionate appointment. He has pleaded that
in the State Bank of India vs. Anju Jain (Supra), the case was
with respect to proved misconduct of bigamy. Thus, he has
pleaded that all the decisions referred by the Division Bench in its
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order of reference have no bearing on the facts of the instant case.
He has further contended that the Full Bench judgment of this
Court in Union of India Vs. Sanjay Kumar (Supra) has denied the
right to compassionate appointment to the second wife/ off-spring
of second wife placing reliance on the Railway Board’s Circular
No. 01 of 1992 dated 24.01.1992, which had already been quashed
by the Calcutta High Court in Namita Goldar and Anr. Vs. Union
of India and Anr. reported in 2010 (1) Cal.L.J 464. It was no
more in existence as the Railway Board has never challenged the
order of the High Court at Calcutta in Namita Goldar (Supra). As
such, it had attained finality. The said judgment in the case of
Namita Goldar (Supra) was not brought to the notice of the Full
Bench either by the Union of India or by the respondents. Thus,
the decision of the Full Bench was in ignorance of the relevant
case as also in ignorance of the fact that the circular, in question,
itself was not in existence. Hence, the said decision of the Full
Bench is of no consequence. Lastly, he has argued that the issues
involved in the present case are no more res integra. Recently, the
Supreme Court, in the Union of the India Vs. V.R. Tripathi
(Supra) has clearly held that the children born out of void
marriage are legitimate and compassionate appointment cannot be
denied to them.
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21. Having heard learned counsel for the parties and
carefully perused the materials on record, first of all, let us
examine the background in which circular no.937 dated
23.06.2005 was issued by the State Government.
22. Prior to the issuance of the aforestated circular no.
937 dated 23.06.2005 the Government of Bihar had come out with
a policy decision, as contained in Memo No. 13293 dated
05.10.1991, providing employment in Class-III and Class-IV posts
in case of death of government servant during service period. The
said memo laid down the categories/persons entitled to
appointment on compassionate ground and other procedure for the
same. According to the circular dated 05.10.1991, only dependents
were to be given appointment on compassionate ground. The
dependents were defined as widow of the deceased employee, son,
unmarried daughter and widow of pre-deceased son. The order of
preference stipulated in the circular was widow of the deceased,
son, unmarried daughter and the widow of pre-deceased son.
23. In Mustaque Ahmad (Supra), a Muslim employee
marrying second time during the life time of the first wife died in
harness. The son from the first wife, namely, Mustaque Ahmad
made an application for his appointment on compassionate ground
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but, before anything could be done, the second wife Mosamat
Jahanara Begum made a written complaint that since she along
with her children have been ousted from the house, said Mustaque
Ahmad is not entitled to appointment on compassionate ground. In
view of the dispute raised, the District Compassionate
Appointment Committee directed the District Education Officer to
make an inquiry and submit his report. After the inquiry, report
was submitted and considered whereafter, the District Magistrate,
Muzaffarpur had sought clarification from the Secretary,
Personnel and Administrative Reforms Department asking the
authority as to whether second wife and her children would be
entitled to appointment on compassionate ground. It was under
this circumstance, the writ petition was filed by Mustaque Ahmad
and, after hearing the parties, this Court disposed of the writ
petition on the following terms:-
“Instead of entering into the controversy or
considering the entitlement of the parties, I
dispose of the writ application with a direction
to the Secretary, Personnel Administrative
Reforms Department to issue proper directions
in a matter like this. The directions should not
be issued only to the District Magistrate,
Muzaffarpur but should be issued to all
concerned in form of a policy decision because
such matters are seeing the light of the day
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marries second time during the life time of the
first wife, on one side the Government says
that the Government servant is not entitled to
marry second time while claimants say that
under the personal law such a person is entitled
to marry and in any case his wards or
dependents cannot be refused the appointment
on compassionate ground. Let necessary policy
be framed and orders be issued within a period
of four months from the date of submission of
this order.”
24. In the background of the directions given in
Mustaque Ahmad (Supra), circular No. 937 dated 23.06.2005 was
issued under the signature of the Joint Secretary, Personnel and
Administrative Reforms Department, Government of Bihar, Patna,
which reads as under:-
“fo’k; % f}rh; iRuh ,oa mlls mRiUu larku dh
vuqdEik ds vk/kkj ij fu;qfDr gsrq vuqekU;rk ds laca/k
esaA
mi;ZqDr fo’k; ds laca/k esa funs”kkuqlkj dguk gS fd
vk;s fnu e`r ljdkjh lasod dh f}rh; iRuh vkSj mlls
mRiUu larku dh vuqdUik ds vk/kkj ij fu;qfDr gsrq
fopkj dh vuqekU;rk ds laca/k esa dkfeZd ,oa iz”kklfud
lq/kkj foHkkx ls ekxZn”kZu dh ek¡x dh tkrh jgh gSA bl
fo’k; ij lh0MCyw0ts0lh0 la[;k 6201@03 esa fnukad
2772004 dks ekuuh; iVuk mPp U;k;ky; }kjk
ikfjr vkns”k esa Hkh ;g funZs”k fn;k x;k gS fd bl
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
23/54fo’k; ij uhfr fu.kZ; ds :i esa ,d vuqns”k fuxZr fd;k
tk;A
2- mYys[kuh; gS fd fgUnw fookg vf/kfu;e] 1955
ds vUrxZr ,d iRuh ds thfor jgrs gq, fookg djuk
voS/k gS] ijUrq eqfLye ilZuy ykW bldh btktr nsrk
gSA bl laca/k esa fcgkj ljdkjh lsod vkpkj fu;ekoyh]
1976 ds fu;e 23 esa izko/kku fd;k gqvk gS fd ,slk
dksbZ ljdkjh lsod ftldk ifr ;k iRuh thfor gks]
fdlh O;fDr ds lkFk fookg ;k fookg ds fy, djkj
ugha djsxk ( ijUrq ljdkj fdlh ljdkjh lsod dks
nwljk fookg djus dh vuqKk ns ldsxh] ;fn ,slk fookg
,sls ljdkjh lsod vkSj ,sls fookg ds f}rh; i{kdkj ij
ykxw ilZuy ykW dss v/khu oS/k gks vkSj ,slk djus ds
fy, vU; vk/kkj gSA
3- mi;ZqDr fu;e esa Li’V gS fd dksbZ ljdkjh
lsod] pkgs mls ilZuy ykW ds vuqlkj ,slk djus dh
vuqekU;rk gks ;k u gks] fcuk ljdkj dh iwoZ vuqKk ds]
ifr ;k iRuh ds thfor jgrs fookg ;k fookg ds fy,
djkj ugha dj ldrk gSA ,slh ifjfLFkfr esa ;fn og
fcuk ljdkjh lsod dh lsokdky esa e`R;q ds i”pkr~
vuqdEik ds vk/kkj ij fu;qfDr gsrq fopkj ds YkkHk dh
vuqekU;rk ugh gks ldrh gSA
4- ;fn ljdkj dh iwoZ vuqKk ysdj ,slk f}rh; fookg
fd;k x;k gks rks oSlh ifjfLFkfr esa vuqdEik vk/kkfjr
fu;qfDr lEcU/kh Kkikad 13293] fnukad 05101991
dh dafMdk ¼1½¼?k½ esa n”kkZ;h x;h izkFkfedrk ds vuqlkj
vuqdEik vk/kkfjr fu;qfDr gsrq fopkj ds ykHk dh
vuqekU;rk gks ldsxhA ijUrq ,slh fu;qfDr ds vk/kkj ij
f}rh; fookg dks fof/klEer ,oa oS/k izHkko fn;s tkus dk
nkok ekU; ugha gksxkA ;fn mi;qZDr :i esa ,d ls
vf/kd fookg oS/k gks rks ,sls lHkh thfor ifRu;ksa dk
vuqdEik ds vk/kkj ij fu;qfDr gsrq fopkjkFkZ vkfJrksa dh
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
24/54Js.kh esa izFke LFkku gksxk] fdUrq mlesa Hkh izFke iRuh dh
gh izFke LFkku gksxkA vU; ifRu;ksa dh fu;qfDr gsrq
fopkj rHkh fd;k tk ldsxk tc izFke@ojh; iRuh bl
gsrq vukifŸk ,oa “kiFki nsA ijUrq ,slh vukifŸk ,oa
“kiFki dh lR;rk dh tk¡p ds fy, ckn gh vxzrj
dkjZokbZ dh tk ldsxhA vU; vkfJrksa dh fu;qfDr gsrq
fopkj mudh izkFkfedrk ds vuqlkj lHkh thfor oS/k
ifRu;ksa dh vukifŸk@”kiFki ds vk/kkj ij gks
ldsxkA
5- d`i;k mi;ZqDr vuqns”k ls vius v/khuLFk
inkf/kdkfj;ksa@deZpkfj;ksa dks voxr djk nsaA”
25. A reading of the aforesaid circular would make it
manifest that by the said circular compassionate appointment
cannot be granted to the children born from the second marriage
of a deceased employee except where the marriage was permitted
by the Government taking into account personal law etc.
26. The said circular had been issued by the State
Government keeping in mind rule 23 of the 1976 Rules, which
puts restriction upon marriage by the government servant having
spouse living during life time.
27. Rule 23 of 1976 Rules reads as under:-
“Restrictions regarding marriage:- (1) No
Government servant shall enter into, or
contract, a marriage with a person having a
spouse living and
(2) No Government servant, having a spouse
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
25/54living shall enter into, or contract a marriage
with any person:
Provided that Government may
permit a Government servant to enter into or
contract, any such marriage as is referred to
in clause(1) or clause(2) if it is satisfied that:-
(a) such marriage is permissible under the
personal law applicable to such Government
servant and the other party to the marriage;
and
(b) there are other grounds for so doing.
(3) A Government servant who has married or
marries a person other than of Indian
Nationality shall forthwith intimate the fact
to the Government.”
28. Having noticed the relevant circular and rule 23 of
the 1976 Rules, let us now consider the facts of the cases noticed
by the Division Bench while passing its reference order in LPA
No. 1305 of 2013.
29. In Vinod Kumar (Supra), the claim of the appellant,
son of a Class-IV employee, who died in harness, for
compassionate appointment was rejected by the government on
the ground that he had married twice and under government
regulations he would immediately come within the misconduct
under 1976 Rules. He challenged the said decisions by way of
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
26/54
filing a writ petition. The learned Single Judge dismissed the writ
petition where after he filed an appeal before the Division Bench.
The Division Bench dismissed the appeal finding no illegality in
the decision of the government or of the learned Single Judge.
30. In Purushottam Kumar (Supra), the question, which
fell for consideration before the Division Bench was whether a
son of the second wife, whose marriage is void in terms of Section
5 read with Section 11 of the Hindu Marriage Act is entitled to
compassionate appointment in terms of the State Government
Memo No. 13293 dated 05.10.1991. In that case, the appellant’s
case was rejected by the District Compassionate Committee on the
ground that the deceased employee had two wives and as the
second marriage was performed while the first marriage was
subsisting, the claim of the appellant, the son of the second wife,
cannot be considered for compassionate appointment. The
appellant preferred writ petition challenging the said decision,
which was dismissed by the learned Single Judge vide order dated
28.02.2005 whereafter an appeal was filed before the Division
Bench. The Division Bench, after considering the provisions of
law prescribed in Sections 5, 11 and 16 of the Hindu Marriage
Act, 1955, rule 23 of the 1976 Rules as also the government
policy decision contained in Memo No. 13293 dated 05.10.1991
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
27/54
and the ratio laid down by the Supreme Court in Rameshwari
Devi (Supra), set aside the order passed by the learned Single
Judge and the decision of the Compassionate Appointment
Committee and remitted the matter to the authorities concerned to
consider the question of appointment of the appellant on
compassionate ground.
31. While passing the order, the Division Bench, in
Purushottam Kumar (Supra), came to the conclusion that since
policy of the State Government refers to son and son of the second
wife is also legitimate, he would be entitled to be appointed on
compassionate ground and his claim cannot be rejected on the
ground of being off-spring of void marriage.
32. In General Manager, S.B.I. Ors. Vs. Anju Jain
(Supra), the respondent husband was an employee of the appellant
bank. In 1996, he was found guilty of embezzlement for which
major punishment of reduction of his basic pay by two stages and
stoppage of five annual increments with cumulative effect was
imposed on him. He died on 25.01.2000. Thereafter, in March,
2000, the respondent made a request for compassionate
appointment. The request was rejected by the appellant bank on
the ground that punishment had been imposed on the respondent’s
husband on account of serious misconduct. Subsequently, another
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
28/54
representation by the respondent was also rejected on 16.07.2001.
Upon challenge, the learned Single Judge of the High Court of
Allahabad allowed the petition filed by the respondents and
directed the State Government to provide her appointment on
compassionate ground from the date of death of her husband. In
intra-court appeal, the Division Bench of the High Court of
Allahabad, confirmed the order passed by the learned Single
Judge and dismissed the appeal. Upon challenge, the Supreme
Court set aside the order passed by the learned Single Judge,
which was confirmed by the Division Bench of the High Court
and allowed the appeal filed by the bank. While passing the order,
the Supreme Court observed :-
“In our opinion, therefore, if disciplinary
proceedings have been initiated against an
employee and the charges levelled against
such employee are proved and he is punished,
it is indeed a relevant consideration for not
extending the benefit to dependent of such
employee on the ground that he was punished.
To us, it cannot be said that it is a case of
double jeopardy or a dual punishment.
Compassionate appointment is really a
concession in favour of dependents of
deceased employee. If during his carrier, he
had committed illegalities and the misconduct
is proved and he is punished, obviously his
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
29/54dependents cannot claim right to the
employment. With respect, the learned Single
Judge was wholly wrong in observing that
such an action would be violative of
principles of natural justice.
To us, the observation of the learned
Single Judge that “no past acts of misconduct
of the employee who dies in harness can be
taken into account while considering the case
of a family member for employment on
compassionate ground” is not in consonance
with law. Past conduct of an employee is
undoubtedly an important consideration. We
are also of the view that the State Bank was
right in rejecting the prayer of the wife of the
deceased employee vide its letter dated
January 29, 2001 observing therein that
“unblemished service record is implicit”.
33. In Sanjiv Kumar Yadav (Supra), the father of the
petitioner, an Assistant Teacher, in a government girls’ primary
school, died in harness on 6.2.1997. Following his death, the
petitioner made an application for appointment on compassionate
ground. His request for appointment was considered by the
District Compassionate Committee, Sitamarhi in its meeting held
on 8-9-1997 and having regard to the fact that the petitioner had
two wives, it was decided to seek guidance in the matter from the
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
30/54
department of Administrative and Personnel Reforms. The Deputy
Secretary of the Department vide his letter dated 10.7.1998 gave
the direction that the petitioner’s appointment would not be valid
because of his two marriages. At that stage, the mother of the
petitioner, the widow of the deceased government employee made
a detailed application protesting against the decision not to give
appointment to her son on the ground of bigamy. She explained
that the first wife of the petitioner was not being able to bear a
child and it was she who had forced and persuaded him to take a
second wife. After the second marriage, however, the first wife of
the petitioner bore a child. On the basis of the application received
from the mother of the petitioner, the District Compassionate
Committee requested the Deputy Secretary in the government to
reconsider the matter, in reply to which the District
Compassionate Committee was directed to take a decision on the
question of petitioner’s appointment on compassionate grounds in
the light of the departmental memo No. 13293 dated 5.10.1991.
Finally, the case of the petitioner was turned down on the ground
of his having two wives. The petitioner challenged the decision of
the District Compassionate Committee taken in its meeting dated
18.07.2000 by way of filing a writ petition. The writ petition was
dismissed taking into consideration that commission of bigamy is
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
31/54
a misconduct by a government employee. That being the position,
it was held that the impugned decision was unexceptionable
because it would appear quite anomalous to induct into
government employment someone, who even before his
appointment is in a position, which is a misconduct for a
government employee.
34. In Sarjan Singh (Supra), the petitioner had preferred
writ petition seeking a direction upon the respondent authorities
for his appointment on compassionate ground. His father was a
Class IV employee, who had died on 17.01.2005. Thereafter, he
had filed his application for appointment on compassionate
ground. On 27.04.2005, his claim was rejected by the District
Compassionate Committee, Muzaffarpur on 05.10.2007, on the
ground that he had two wives. This Court, in view of the settled
legal position in the case of Sanjiv Kumar Yadav (Supra),
dismissed the writ petition.
35. As seen above, the cases of Sanjiv Kumar Yadav
(Supra), Vinod Kumar (Supra) and Sarjan Singh (Supra) are
identical in one aspect. They had approached this Court seeking a
direction upon the respondent authorities for their appointment on
compassionate ground upon death of their respective fathers, who
had died in harness. Their respective claims for appointment on
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
32/54
compassionate ground were negated by the State Government on
the ground that they all were bigamous husband and had no regard
for the law and that the public policy being strongly opposed to
bigamy, the Courts should take a view discouraging the practice of
bigamy. Compassionate appointment is not a reservation and the
employer can refuse compassionate appointment if it is against the
public policy or law of the land.
36. In the case of General Manager, State Bank of
India Vs. Anju Singh (Supra), the claim for compassionate
appointment to the wife of the deceased employee had been
rejected by the bank on the ground that punishment had been
imposed on the respondent’s husband on account of serious
misconduct while he was still in service. The decision taken by the
bank was set aside by the High Court. On appeal, the Supreme
Court set aside the order of the High Court taking into
consideration the fact that the disciplinary proceeding had been
initiated against the employee and the charges leveled against him
was proved and he was punished. It is in this background the
Supreme Court observed that if during his career the employee
had committed illegalities and his misconduct is proved and he is
punished, the dependents cannot claim right to compassionate
employment.
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
33/54
37. In the present case, the issues are quite different and
distinguishable. It is not the case of the Board that the father of the
respondent Chandra Shekhar Paswan was ever charged or
proceeded against for any misconduct while in service. It is also
not the case of the appellant that the respondent Chandra Shekhar
Paswan is guilty of commission of bigamy or otherwise ineligible
for appointment on account of public policy or breach of law. His
application for appointment on compassionate ground was
rejected by the Board on the ground that he being the son from the
second wife of the deceased employee, whose marriage was void,
cannot be appointed on compassionate ground. Hence, the ratio
laid down in the cases of General Manager, State Bank of India
Vs. Anju Jain (Supra), Sanjiv Kumar Yadav (Supra), Vinod
Kumar (Supra) and Sarjan Singh (Supra) are not applicable to the
facts of the present case.
38. Let us now consider the applicability of the ratio laid
down in Union of India Vs. Sanjay Kumar (Supra) upon which
the State has placed reliance in order to assail the judgment of the
learned single Judge in CWJC No. 9329 of 2017. In the said case,
the petitioner had invoked the writ jurisdiction claiming
appointment on compassionate grounds after death of his father on
18th March, 1991. The application for appointment on
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
34/54
compassionate grounds was filed on 7th April, 1992 after he had
attained majority. The learned Single Judge had allowed the writ
application for the reason that his application could not be rejected
simply on the ground that he is son from the second wife of the
deceased. In appeal, the Union of India through Ministry of
Railways relied upon an order of a Division Bench to contend that
the compassionate appointment can be sought and granted only in
terms of the policies framed from time to time. Since the policy of
the Railways specifically excluded compassionate appointment to
the second widow and her children, the writ-applicant would not
be entitled to compassionate appointment even if he is treated to
be legitimate child for the purposes of Hindu Marriage Act, 1955.
Moreover, the Division Bench, hearing the writ petition, doubting
the correctness of the earlier Division Bench judgment relied upon
by the appellant Union of India wherein it was held that the
children born out of the second wife without permissions of the
Railway authorities are not entitled to seek compassionate
appointment in terms of the circular issued by the Railways,
referred the matter to the Full Bench. The Full Bench, after
hearing the parties, ruled as under:-
“We have heard learned counsel for the
parties and find that right to seek
compassionate appointment emanates from
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
35/54the policy of the employer. In the absence of
policy of compassionate appointment, there is
no inherent right with the family members of
the deceased to seek compassionate
appointment. If the policy of compassionate
appointment does not permit the second wife
and/or her children for appointment on
compassionate grounds, this Court on the
basis of right of inheritance will not confer the
right to seek compassionate appointment….”
39. Since the judgment of the Full Bench of this Court in
Union of India Vs. Sanjay Kumar (Supra) was with reference to
the Railway Board’s circular dated 02.01.1992, it is apposite to
reproduce the said circular hereunder :-
“The General Manager (P)
C.Rly. And others
Sub:- Appointment on compassionate
grounds cases of
second widow and her wards.
It is clarified that in the case of
railway employees dying in harness etc.
leaving more than one widow along with
children born to the 2nd wife, while
settlement dues may be shared by both the
widows due to Court orders or otherwise on
merits of each case, appointments on
compassionate grounds to the second
widow and her children are not to be
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
36/54
considered unless the administration has
permitted the second marriage, in special
circumstances, taking into account the
persons law etc.
2. The fact that the second
marriage is not permissible is invariably
clarified in the terms and conditions
advised to the offer of initial appointment.
3. This may be kept in view and
the case for compassionate appointment to
the second widow or her wards need not be
forwarded to Railway Board.
4. Kindly acknowledge receipt.
Sd/-
(P.L.N. Sharma)
Deputy Director, Estt. (N)
Railway Board”
40. The legality of the aforesaid circular of the Railway
Board was questioned in Namita Goldar (Supra) before the
Calcutta High Court in which the deceased employee had married
for the second time during the life time of his first wife as there
was no issue with the first wife. The employee had died in harness
leaving behind two widows and four children. The first wife had
died after the death of the deceased employee and the family
pension and other benefits were disbursed to the second wife and
her children. The compassionate appointment was claimed by the
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
37/54
eldest son of the second wife as the first wife was issueless.
Following the decision in Rameshwari Devi (Supra), the Calcutta
High Court allowed the claim observing as under:-
“In view of the decision of the Apex
Court in the case of Rameshwari Devi
(supra), the children of the second wife
cannot be treated as illegitimate and referring
to section 16 of the Hindu Marriage Act
specifically held that children of a void
marriage are legitimate.
In view of the law as settled by the
Supreme Court no distinction can be made
amongst the children of the first and second
wife of a deceased employee. In the present
case, however, first wife was issueless and
died shortly after the death of the employee
concerned.
Therefore, the eldest son of the second
wife, namely the petitioner No. 2 herein is
entitled to claim appointment of
compassionate ground on account of the
sudden death of the employee concerned.
The learned Tribunal, in our opinion, has
rightly held that the claim of the petitioner
No. 2 herein for compassionate appointment
cannot be turned down on the ground it was
done although the learned Tribunal did not
issue any mandatory direction on the
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
38/54
respondents authorities for granting
compassionate appointment to the said son of
the second wife, namely the petitioner No. 2
herein and directed the General Manager,
Eastern Railway to refer the matter to the
Railway Board for taking decision. We are,
however, of the opinion that the circular
issued by the Railway Board on 2nd January,
1992 preventing the children of the second
wife from being considered for appointments
on compassionate ground cannot be sustained
in the eye of law in view of the specific
provision of the Hindu Marriage Act, 1955
and pursuant to the decision of the Hon’ble
Supreme Court in the case of Rameshwari
Devi (supra).
In the aforesaid circumstances, the
aforesaid circular issued by the Railway
Board on 2nd January, 1992 stands quashed
to the extent it prevents the children of the
second wife from being considered for
appointments on compassionate ground.”
41. Since the Calcutta High Court, in Namita Goldar
(Supra) had set aside the Railway Board’s circular dated
02.01.1992 to the extent the same prevented the children of the
second wife from being considered for appointment on
compassionate ground, the same had lost its existence to that
extent. The concerned Railway Board had never challenged the
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
39/54
order of the Calcutta High Court passed in the case of Namita
Goldar (Supra) before the Apex Court. Thus, it had attained
finality. It was desirable from the appellant Union of India, East
Central Railway and others to have brought this fact to the notice
of the Full Bench of this Court in Union of India Vs. Sanjay
Kumar (Supra). Unfortunately, neither the appellant nor the
respondent apprised the Full Bench of this Court, the judgment of
the Division Bench of the Calcutta High Court in the case of
Namita Goldar (Supra) in which Railway Board’s Circular, dated
02.01.1992, was quashed to the extent it prevented the second
wife or her children to compassionate appointment. In absence of
the material fact having been brought to the notice of this Court,
the Full Bench of this Court held that if the policy of the Railway
Board of compassionate appointment does not permit the second
wife and/or her children for appointment on compassionate
ground, on the basis of right of inheritance, right to
compassionate appointment cannot be conferred. The said finding
of the Full Bench is based on the circular of the Railway Board,
which was not in existence. It had become lifeless circular after
the same was held ultra vires by the Calcutta High Court in
Namita Goldar (Supra).
42. At this stage, it would be apposite to refer to the
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
40/54
Division Bench decision of the Delhi High Court in Union of
India Vs. Pankaj Kumar Sharma [W.P.(C) 9008 of 2014]
wherein challenge was made to the decision of the Central
Administrative Tribunal whereby the Tribunal had quashed the
petitioner’s communication dated 09.05.2012 rejecting the
respondent’s application for compassionate appointment and
directed the petitioner to consider his case for grant of
compassionate appointment under the scheme. A Division Bench
of Delhi High Court dismissed the writ petition vide its judgment
dated 19.12.2014 holding as under :-
“The decision in Namita Goldar (supra)
squarely applies in the facts of the present
case. The Calcutta High Court has held
that the circular of the Railways – relied
upon by the petitioner in the present case
as well, cannot be sustained in the light of
the provisions of the Hindu Marriage Act,
1956. That decision, apparently, has
attained finality and binds the petitioner.
The petitioner is precluded from re-
agitating the same issue again and again.”
43. It further held :
“Once the law declares children born out of a
void or illegitimate marriage to be legitimate,
no policy or circular of the State can seek to
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
41/54create a distinction or discriminate on the
basis of the status of the wedlock (i.e. valid or
invalid), out of which a child is born. To
permit the same would be to bring in
distinction and discrimination through the
backdoor, and nullify the effect of Section 16
of the Hindu Marriage Act.”
44. Again the Madras High Court considered an identical
issue in Union of India Vs. M. Karumbayee (WP. No. 36981 of
2015) in which it had held that the children born out of void
marriages are legitimate. That case related to appointment on
compassionate ground in Southern Railway of a deceased
employee’s son born to his second wife as he did not have any
issue from his first wife. The claim was rejected by the Southern
Railway Board on the ground that the children born to the second
wife were not recognized and the second wife was not entitled to
any benefits as per Railway Board’s circular dated 02.01.1992.
Upon challenge, the Central Administrative Tribunal, Madras
Bench allowed the original application on the basis of judgment
rendered by the Division Bench of Calcutta High Court in the case
of Namita Goldar (Supra), which followed the decision of the
Supreme Court in the case of Rameshwari Devi (Supra), which
specifically held that second marriage during subsistence of first
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
42/54
marriage is illegitimate but the children born out of second wife
are legitimate and are entitled to the estate of the father. The
Central Administrative Tribunal, therefore, held that no distinction
can be made amongst the children of the first and the second wife
of a deceased employee. The Central Administrative Tribunal,
thus, quashed the 1992 circular issued by the Railway Board to the
extent it prevented the children of the second wife from being
considered for appointment on compassionate ground.
45. Upon challenge, in the writ petition filed by the
Union of India against the order of the Central Administrative
Tribunal, the Division Bench of the Madras High Court held as
under :-
“We have given our anxious
consideration to the materials placed on
record and the pleadings of the parties.
We do not find any infirmity in the
order passed by the learned Tribunal as the
same was on the basis of the Division
Bench judgment of the Kolkatta High
Court, which had followed the decision of
the Hon’ble Supreme Court. We also do
not have any quarrel with the proposition
of law laid down by the Kolkatta High
Court as the children born out of second
marriage, cannot be treated as illegitimate
in the eye of law.
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
43/54
In such view of the matter, the Writ
Petition is dismissed as devoid of merits
and substance. No costs.”
46. Being aggrieved by the order passed by the Madras
High Court in the case of Union of India Vs. M. Karumbayee
(Supra), the Union of India and others preferred Special Leave
Petition before the Supreme Court, vide Diary No. 27352 of 2017,
but the same was dismissed vide order dated 18.09.2017.
47. Recently in Union of India Vs. V.R.Tripathi (Supra),
the Supreme Court has ruled as under :-
“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.”
48. It was a case in which the father of the
respondent was employed as a Technician, Grade-I in
Central Railways at Mumbai. He died in harness on 28
November 2009. He had contracted a second marriage
during the subsistence of his first marriage. The respondent
was the son born from the second marriage of the employee,
which was contracted in 1987. The respondent had applied
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for compassionate appointment on the death of his father.
His application was rejected on 6 March 2012 by the
Railway authorities. Aggrieved by the denial of
compassionate appointment, the respondent had moved an
Original Application before the Central Administrative
Tribunal. The Tribunal having held in favour of the
respondent and upon the dismissal of a petition seeking
review, the Union of India and the Railway authorities
instituted writ proceedings before the Bombay High Court.
In support of the writ petition, the appellants relied upon the
circular of the Board dated 02.01.1992 whereby the second
widow and her children were not to be considered for
compassionate appointment unless the administration had
permitted the second marriage, in special circumstances,
taking into account personal law etc.
49. After hearing the parties, the Bombay High Court
had found no reason to differ with the view of the Central
Administrative Tribunal. Hence, the appellants assailed the
judgment of the High Court before the Supreme Court.
50. Having heard the parties, the Supreme Court, in
Union of India Vs. V.R.Tripathi (Supra), while dealing with the
circular issued by the Railway Board, observed as under :-
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“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. 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.”
(emphasis supplied)
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51. While holding that the circular of the Railway Board
creates two categories between one class of legitimate children,
The Supreme Court observed:-
“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.”
52. In answer to the argument advanced on behalf of the
appellants that it is open to the State, as part of its policy of
discouraging bigamy to restrict compassionate appointment, only
to the spouse and children of the first marriage and to deny spouse
of the second marriage and the children, the Supreme Court
observed:-
“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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
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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.”
(emphasis supplied)
53. The Supreme Court also noticed the Division Bench
judgment of Calcutta High Court in Namita Goldar (Supra)
whereby circular of the Railway Board dated 02.01.1992 to the
extent that it prevented the children of second wife from being
considered for appointment on compassionate ground was
quashed. Its attention was also drawn to the judgment of the
Division Bench of the Madras High Court in Union of India Vs.
M Karumbayee (Supra), which had followed Namita Goldar
(Supra). The Supreme Court noticed that Special Leave Petition
filed against the judgment of the Division Bench was dismissed by
the Supreme Court on 18.09.2017.
54. Having noticed the aforesaid judgments, the Supreme
Court observed:-
“Finally, it would be necessary to dwell on
the submission which was urged on behalf of
the respondent that once the circular dated 2
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Bench of the Calcutta High Court in Namita
Goldar (supra) and which was accepted and
has been implemented, it was not thereafter
open to the railway authorities to rely upon the
same circular which has all India force and
effect. There is merit in the submission. Hence,
we find it improper on the part of the Railway
Board to issue a fresh circular on 3 April 2013,
reiterating the terms of the earlier circular
dated 2 January, 1992 even after the decision in
Namita Goldar (supra), which attained
finality.”
55. Apparently, the judgment passed in Union of India
Vs. V.R. Tripathi (Supra) by the Supreme Court is contrary to the
Full Bench of this Court in Union of India Vs. Sanjay Kumar
(Supra) as it has acknowledged the right to the child of the second
marriage and has also held that 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. It has
acknowledged the right to compassionate appointment to the child
of second marriage under Section 16(1) and 16(3) of the Hindu
Marriage Act. The principle laid down by the Supreme Court
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supersedes those taken by the Full Bench of this Court in Union
of India Vs. Sanjay Kumar (Supra). The said principle having
enunciated by the highest Court of the land has a binding force.
The authoritative pronouncement of apex court on the point of
compassionate appointment in V.R.Tripathi (Supra) eclipses the
decision of the Full Bench of this Court in Union of India Vs.
Sanjay Kumar (Supra), which was even based on misconstruction
of Railway Board’s circular dated 02.01.1992 as the said circular
was not in existence after Namita Goldar’s case.
56. In the light of the authoritative pronouncement of the
Supreme Court in Union of India Vs. V.R. Tripathi (Supra), we
find that the condition imposed by the circular no. 937 dated
23.06.2005 issued under the signature of Joint Secretary Personnel
and Administrative Reforms Department, Government of Bihar,
Patna, which inter alia bars compassionate appointment to the
children born from second marriage of the deceased employee
cannot be held to be legal and justified. 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, the State cannot exclude such a child by issuing
circular or letter from seeking the benefit of compassionate
appointment. Such a condition of exclusion is arbitrary and ultra
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vires.
57. We are also of the opinion that in view of the ratio
laid down by the Supreme Court in Union of India Vs.
V.R.Tripathi (Supra), an employer, who is amenable to Part III of
the Constitution cannot deny the benefit of compassionate
appointment, which is available to the other legitimate children.
The State cannot lay down a condition while making the scheme
or rules inconsistent with Article 14 of the Constitution. In view of
Section 16 of the Hindu Marriage Act, 1955, which regards a child
born from a marriage entered into while the earlier marriage is
subsisting to be legitimate, the condition of prior approval of the
employer before the second marriage of the deceased employee
cannot be sine qua non to the children born out of second
marriage. Such a condition of exclusion would be arbitrary and
ultra vires as it would bring out unconstitutional discrimination
between legitimate children, who form one class.
58. In view of rule 23 of the 1976 Rules as also the
decisions of this Court and the decision of the Supreme Court
discussed above, we are of the opinion that if the second marriage
was performed by the government servant while in service, the
same would amount to misconduct committed in service. In case,
an employee is proceeded against for such misconduct while in
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service and misconduct is proved, the government may be free to
take any action against such employee. In case of punishment
awarded to the government employee, the same may be a relevant
consideration for denying the prayer for compassionate
appointment of dependents of the deceased employee. However, if
no disciplinary proceeding is initiated for any misconduct against
an employee while in service, after his death, his dependents
cannot be denied compassionate appointment on the ground that
while in service the employee had been guilty of misconduct. In
other words, the claim for compassionate appointment to the
dependents of the deceased employee can be denied only if the
employee had committed illegalities and misconduct is proved and
he is punished during his service career.
59. Having held so, when we look to the order dated
13.08.2012 passed by the learned Single Judge in CWJC No. 9329
of 2012, we find that while allowing the writ petition the learned
Single Judge has quashed the circular no. 937 dated 23.06.2005
issued under the signature of the Joint Secretary, Personnel and
Administrative Reforms Department, Government of Bihar, Patna
and directed the respondents to appoint the petitioner on
compassionate ground on the post to which he is entitled.
60. We are of the opinion that the aforesaid circular dated
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23.06.2005 should not have been quashed in its entirety. We are
also of the opinion that no direction could have been given by the
learned Single Judge to the respondents to appoint the petitioner
on compassionate ground on the post to which he is entitled. The
learned Single Judge ought to have quashed the circular to the
extent it prevented the children of the second wife from being
considered for appointment on compassionate ground. Similarly,
instead of issuing direction to the respondents to appoint the
petitioner on compassionate ground, the learned Single Judge
ought to have directed the respondents to consider the case of the
petitioner for appointment on compassionate ground as it is well
settled position in law that appointment on compassionate ground
is not a source of recruitment. It is exception to the general rule.
The purpose of compassionate appointment is to prevent
destitution and penury in the family of a deceased employee. The
person seeking appointment on compassionate ground under a
scheme has a right to be considered for appointment, which needs
to be decided on the facts of each individual case keeping in mind
as to whether the applicant needs all stipulations of the scheme
including financial need and other requirements.
61. In view of the discussions made above, LPA Nos.
1305 of 2013 and 1608 of 2014 are dismissed. However, we
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modify the order dated 13.08.2012 passed by the learned Single
Judge in CWJC No. 9329 of 2012 as under :
The impugned circular no. 937 dated
23.06.2005 issued by the Personnel and
Administrative Reforms Department, Government of
Bihar, Patna stands quashed to the extent it prevents
the children of the second wife from being
considered for appointment on compassionate
ground. The respondents in LPA no. 1305 of 2013 are
directed to consider the claim of the respondent-writ
petitioner Chandra Shekhar Paswan for appointment
on compassionate ground and issue appropriate
orders as early as possible preferably within three
months from the date of receipt/production of a copy
of the order.
62. Since the impugned circular no. 937 dated
23.06.2005 issued by the Government of Bihar, Patna has been
quashed to the extent it prevented the children of the second wife
from being considered for appointment on compassionate ground,
we dispose of CWJC No. 11445 of 2010 with a direction to the
respondents to consider the claim of the petitioner for appointment
on compassionate ground on merit and pass appropriate orders in
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accordance with law as early as possible preferably within three
months from the date of receipt/production of a copy of the order.
(Ashwani Kumar Singh, J.)
Birendra Kumar,J : I agree.
( Birendra Kumar, J.)
Anil Kumar Upadhyay, J : I agree.
( Anil Kumar Upadhyay, J)
pradeep/-
AFR/NAFR AFR
CAV DATE 12.03.2019
Uploading Date 19-04-2019
Transmission Date
