SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

The State Of Bihar And Ors vs Chandra Shekhar Paswan And Ors on 18 April, 2019

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
2/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
3/54

(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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
4/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
5/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
6/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
7/54

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.”

Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
8/54

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.

Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
9/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
10/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
11/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
12/54

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,
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
13/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
14/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
15/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
16/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
17/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
18/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
19/54

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.

Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
20/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
21/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
22/54

many times. In case of a Mohammadan, who
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 [email protected] 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
23/54

fo’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
24/54

Js.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 [email protected]; 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 vukifŸ[email protected]”kiFki ds vk/kkj ij gks
ldsxkA
5- d`i;k mi;ZqDr vuqns”k ls vius v/khuLFk
inkf/kdkfj;[email protected];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
25/54

living 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
29/54

dependents 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
35/54

the 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
41/54

create 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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
44/54

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 :-
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
45/54

“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)
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
46/54

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
47/54

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.”

(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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
48/54

January 1992 was struck down by the Division
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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
49/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
50/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
51/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
52/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
53/54

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
Patna High Court L.P.A No.1305 of 2013 dt.18-04-2019
54/54

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

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation