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Yuvraj Dajee Khadake vs The Union Of India on 21 February, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1564 OF 2017

Yuvraj Dajee Khadake
s/o. Late Shri Dajee Jawoo of Thane,
Indian Inhabitant,
residing at Latifwadi (Sawarwadi)
Post Vihigaon, Tal. Shahapur, Dist. Thane,
Maharashtra 421 602. … Petitioner
Versus
The Union of India,
Through The Divisional Railway
Manager’s Office, 5th Floor,
Annex Building, Chhatrapati Shivaji
Terminus (CST), Mumbai – 400 001. … Respondent

Mr. A.K. Saxena a/w Mr. Ganesh Dahale for the Petitioner.
Mr. Chetan Chandulal Agrawal for the Respondent.

CORAM : A.S. OKA
SANDEEP K. SHINDE, JJ.

DATE ON WHICH SUBMISSIONS WERE LASTLY HEARD: 6th FEBRUARY 2019
DATE ON WHICH JUDGMENT IS PRONOUNCED : 21st FEBRUARY 2019

JUDGMENT (PER A.S. OKA, J.):-

1 The petitioner’s father was in the employment of the Central
Railway. He died in harness on 12 th August 2003. The petitioner made an
application for grant of employment on compassionate ground. By the
impugned communication dated 6th December 2016, the respondent
rejected the said application on the ground that the marriage between the
petitioner’s mother and the petitioner’s father was solemnized during the
subsistence of first marriage of the petitioner’s father. The question which
arises in this petition is whether the petitioner could have been denied

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compassionate appointment notwithstanding the provisions of section 16 of
the Hindu Marriage Act, 1955 (for short “the said Act of 1955”).

2 The learned counsel appearing for the petitioner pressed into
service a decision of a Division Bench of this Court in the case of Union of
India and Anr. Vs. V.R. Tripathi1. He submits that this judgment holds that
even if a son or a daughter of an employee is born from a second marriage
which is not valid, in view of section 16 of the said Act of 1955,
compassionate appointment cannot be denied to the son or the daughter.
Reliance was placed on a decision of Madras High Court in the case of H.
Anwar Basha V. Registrar General (Incharge) and Anr. 2 Our attention is also
invited to the decision of the Apex Court in the case of Rameshwari Devi Vs.
State of Bihar and Ors.3 The learned counsel appearing for the respondent
urged that appointment on compassionate ground is governed by a policy.
He relied upon the circular of the Railway Board dated 21 st March 2018
which specifically lays down that a son or a daughter of an employee who
can be treated as legitimate under section 16 of the said Act of 1955 is not
entitled to seek compassionate appointment. He submitted that when the
decision of this Court in the case of Union of India and Anr. Vs. V.R. Tripathi
(supra) was rendered, the aforesaid circular of the Railway Board was not in
existence. He invited our attention to the decision of another Division Bench
at Nagpur in the case of Union of India and another vs. Pradeep Uttam Gid 4.
He urged that this decision takes a contrary view. He would, therefore,
submit that no interference is called for.

3 We have considered the submissions. It is well settled that
compassionate appointment is not a normal source of appointment and is
an exception to the general rule. Entitlement to receive compassionate

1. Judgment and order dated 1st April 2016 in Writ Petition No.910 of 2015

2. (2008) LAB. I.C. 3370

3. (2000)2 SCC 431

4. Judgment and order dated 31st July 2015 in Writ Petition No.3374 of 2014
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appointment has to be judged on the basis of rules, regulations or executive
instructions which govern the same. In the case of SBI vs Raj Kumar5, the
Apex Court held that:

“12. Obviously, therefore, there can be no immediate or
automatic appointment merely on an application. Several
circumstances having a bearing on eligibility, and financial
condition, up to the date of consideration may have to be
taken into account. As none of the applicants under the
scheme has a vested right, the scheme that is in force
when the application is actually considered, and not
the scheme that was in force earlier when the
application was made, will be applicable.”

(emphasis added)

4 Hence, an application for the grant of compassionate
appointment is governed by the policy or the scheme which is in force on
the date of consideration of the application. There was a circular issued by
the Railway Board dated 2nd January 1992 which provided that where an
employee who dies in harness had contracted a second marriage during the
subsistence of the first marriage without obtaining permission of the
Railways, the second wife or the children from the second wife will not be
entitled to get compassionate appointment. In the case of Namita Goldar
and Anr. Vs. Union of India and Ors. 6, the Calcutta High Court struck down
the said circular dated 2nd January 1992 as it was illegal. The said decision
of the Calcutta High Court delivered on 10 th February 2010 has attained
finality.

5 The issue is whether a son of Railway employee who died in
harness and who was born to second wife of the deceased employee was
entitled to compassionate appointment especially when the marriage of his
mother with the deceased employee was not valid. In paragraph 10 of the

5. (2010) 11 SCC 661

6. 2010 LAB I.C. 1465
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aforesaid decision in the case of Union of India and another vs V.R.Tripathi
(supra) this Court recorded the following finding :-

“10] Therefore, at least on and from 10 February 2010, there
is no rule, regulation or executive instruction, which
bars the children of a second wife from being
considered for compassionate appointment, provided of
course, such children, comply with other rules,
regulations and executive instructions in the matter of
compassionate appointment. There is material on record,
as noted by the Calcutta High Court, that the railways have
granted compassionate appointment to the son of second
wife. In such circumstances, the Union of India (Railways)
was not justified in rejecting the respondent’s claim to even
be considered for compassionate appointment, once again,
by relying upon the railway board’s circular dated 2
January 1992.”

(emphasis added)

In paragraph 14, the Division Bench held thus :-

“14. Mr. Suresh Kumar’s third contention with regard to the so
called “illegitimacy” of the respondent, also does not
deserve any acceptance. Section 5 (i) read with Section 11
of the H. M. Act, no doubt provides that a marriage
solemnized between two Hindus, during subsistence of
previous marriage shall be null and void and may, on a
petition presented by either party thereto against the other
party, be so declared by a decree of nullity. However,
notwithstanding all this, Section 16 of the H. M. Act, in
terms provides that the children of such void marriage
shall, nevertheless, be legitimate. Section 16 of the H.M. Act
reads thus:

Section 16 – Legitimacy of children of void and a voidable
marriages :

1. Notwithstanding that marriage is null and void under section
11, any child of such marriage who would have been legitimate
if the marriage had been valid, shall be legitimate, whether
such child is born before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 (68 of 1976), and
whether or not a decree of nullity is granted in respect of that

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marriage under this Act and whether or not the marriage is
held to be void otherwise than on petition under this Act.

2. Where a decree of nullity is granted in respect of a voidable
marriage under section 12, any child begotten or conceived
before the decree is made, who would have been the legitimate
child of the parties to the marriage if at the date of the decree it
had been dissolved instead of being annulled, shall be deemed
to be their legitimate child notwithstanding the decree of
nullity,

3. Nothing contained in sub-section (1) or sub-section (2) shall be
construed as conferring upon any child of a marriage which is
null and void or which is annulled by a decree of nullity under
section 12, any rights in or to the property of any person, other
than the parents, in any case where, but for the passing of this
Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the
legitimate child of his parents.”

(emphasis added)

In paragraph 15 to 17, the Division Bench held thus:

“15] From the aforesaid, it is quite clear that
notwithstanding that a marriage is null and void under
section 11, any child of such marriage who would have
been legitimate, if the marriage had been valid, shall be
legitimate, whether such child is born before or after
the commencement of the Marriage Laws (Amendment)
Act, 1976 and whether or not a decree of nullity is
granted in respect of that marriage under the H. M. Act
and whether or not the marriage is held to be void
otherwise than on a petition under the H. M. Act. Thus
the very provisions contained in Section 16 of the H. M.
Act are sufficient to reject Mr. Suresh Kumar’s
contention with regard to so called “illegitimacy” of the
respondent.

16] In Rameshwari Devi (supra), the dispute concerned
payment of family of pension and deathcumretirement
gratuity to the two wifes of Narain Lal, who died in 1987
while posted as Managing Director, Rural Development
Authority of the State of Bihar. The first wife Rameshwari
Devi had contended that the second wife Yogmaya Devi
and her children were not entitled to share the family
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pension and deathcumretirement gratuity as the marriage
between Narain Lal and Yogmaya Devi was against the
provisions of law as contained in Sections 5 and 11 of the
H. M. Act and was therefore, a void marriage. The Hon’ble
Supreme Court rejected the contention raised on behalf of
State of Bihar that Narain Lal had indulged in a misconduct
by marrying second time by observing that the State had
never charged Narain Lal with such misconduct whilst he
was in service and no disciplinary proceedings were ever
held against him during his lifetime (para 13 of the
judgment and order). The Hon’ble Supreme Court, even
after accepting Rameswhari Devi’s contention that the
marriage between Narain Lal and Yogmaya Devi was
void, nevertheless, ruled that the children of second
marriage were legitimate children, in view of the legal
provisions contained in Section 16 of the H. M. Act and
therefore, they could never be denied the share in
family pension and deathcumretirement gratuity. In
paragraphs 13 and 14, the Hon’ble Supreme Court has
observed thus: “13. But then it is not necessary for us to
consider if Narain Lal could have been charged of
misconduct having contracted a second marriage when his
first wife dying intestate devolves firstly on heirs in clause
(1) which include the widow and son. Among the widow
and son, they all get shares (see Sections 8, 10 and the
Schedule to the Hindu Succession Act, 1956). Yogmaya
Devi cannot be described as a widow of Narain Lal, her
marriage with Narain Lal being void. The sons of the
marriage between Narain Lal and Yogmaya Devi being the
legitimate sons of Narain Lal would be entitled to the
property of Narain Lal in equal shares along with that of
Rameshwari Devi and the son born from the marriage of
Rameshwari Devi with Narain Lal . That is, however, the
legal position when a Hindu male dies intestate. Here,
however, we are concerned with the family pension and
deathcumretirement gratuity payments which are governed
by the relevant rules. It is not disputed before us that if the
legal position as aforesaid is correct, there is no error with
the directions issued by the learned Single Judge in the
judgment which is upheld by the Division Bench in LPA by
the impugned judgment.”

17] The provisions contained in Section 16 of the H.M.Act,
as interpreted by the Hon’ble Supreme Court in
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Rameshwari Devi (surpa), therefore, afford a complete
answer to Mr. Suresh Kumar’s contention with regard to
the so called “illegitimacy” of the respondent. Such
contention, therefore, deserves rejection and is hereby
rejected.”

(emphasis added)

The Division Bench proceeded to confirm the direction of the
Central Administrative Tribunal to consider the case of the respondent
before this Court for grant of compassionate appointment.

6 In the case of Union of India and another vs. Pradeep Uttam
Gid (supra), A Division Bench of this Court has taken a view that a daughter
or a son of second wife cannot claim compassionate appointment. Even the
decision of the Calcutta High Court setting aside the circular dated 2 nd
January 1992 was brought to the notice of the Division Bench. Thus, it is
possible to argue that the subsequent decision of a coordinate Division
Bench in the case of Union of India and Anr. Vs. V.R. Tripathi (supra) takes a
contrary view. But this need not detain us as the controversy has been laid
to rest by the judgment and order dated 11 th December 2018 passed by the
Apex Court in Civil Appeal No.12015 of 2018. This appeal was preferred by
the Union of India for challenging the aforesaid decision dated 1 st April
2016 in the case of Union of India and Anr. Vs. V.R. Tripathi (supra). We
have perused the said decision. An argument was canvassed by the Union of
India before the Apex Court that in view of sub-section (3) of section 16 of
the said Act of 1955, an illegitimate child can have claim only in respect of
the property of the parents and no other claim. The Apex Court considered
various earlier decisions on the aspect in paragrah 12. The Apex Court
noted that the real issue to be decided was whether the condition imposed
by the circular of Indian Railway Board under which compassionate
appointment cannot be granted to the children born from a second marriage
of deceased employee (except where second marriage was permitted by the
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administration) is consistent with Article 14 of the Constitution of India.
Thereafter, the Apex Court in paragraph 13 proceeded to consider the
provisions of section 16 of the said Act of 1955. Paragraphs 14 and 15 are
the findings rendered by the Apex Court which read thus :-

“14. 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.

15. Even if the narrow classification test is adopted, the circular
of the Railway Board creates two categories between one
class of legitimate children. Though the law has regarded a
child born from a second marriage as legitimate, a child
born from the first marriage of a deceased employee is
alone made entitled to the benefit of compassionate
appointment. The salutary purpose underlying the grant of
compassionate appointment, which is to prevent destitution
and penury in the family of a deceased employee requires
that any stipulation or condition which is imposed must
have or bear a reasonable nexus to the object which is
sought to be achieved. The learned Additional Solicitor
General has urged that it is open to the State, as part of its
policy of discouraging bigamy to restrict the benefit of
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compassionate appointment, only to the spouse and
children of the first marriage and to deny it to the spouse of
a subsequent marriage and the children. We are here
concerned with the exclusion of children born from a
second marriage. By excluding a class of beneficiaries who
have been deemed legitimate by the operation of law, the
condition imposed is disproportionate to the object sought
to be achieved. Having regard to the purpose and object
of a scheme of compassionate appointment, once the
law has treated such children as legitimate, it would be
impermissible to exclude them from being considered
for compassionate appointment. Children do not choose
their parents. 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.”

(emphasis added)

7 Even in paragraph 16, the Apex Court observed that if the
children born to the second wife of the deceased employee dying in harness
are excluded from the policy of compassionate appointment, it would be
offensive to and defeat whole object of ensuring dignity of family of the
deceased employee who has died in harness and it brings about the
unconstitutional discrimination. Accordingly, the appeal preferred by the
Union of India was dismissed by the Apex Court.

8 After the said decision in the case of Union of India Vs.
V.R.Tripathi (supra) was rendered by the Division Bench of this Court on 1 st
April 2016, there is a circular dated 21st March 2018 issued by the Railway
Board. Paragraphs 4 and 5 of the said circular read thus :

“4. The matter has been examined and in supersession of this
Ministry’s letter dated 02.01.1992 issued under RBE
No.01/1992 and No.E(NG)II/2012/RC-1/21 dated
03.04.2013, it has been decided that the first right of being
considered for compassionate grounds appointment is
vested, in cases of death of Railway servants while in
service, with the legally wedded surviving widow provided
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she has not remarried at the time of making request for
appointments on compassionate grounds. It is clarified that
in cases of those Railway Servants who are governed by the
Hindu Marriage Act, 1955, there can only be one legally
wedded wife/widow, as second marriage, while spouse is
living, is void/voidable in view of the Section 5(1) read
with Section 11 of the Act. In this respect, Railway Board’s
letter No.E(DA) 92 GS 1-1 dated 10.04.1992 connects.

5. If aforementioned legally wedded surviving widow does not
want herself to be considered for compassionate grounds
appointment, she can nominate, for CG appointment, a
“bread winner” for the family from amongst the following :

(a) In cases of those Railway Servants who are
governed by the Hindu Marriage Act, 1955 : Son
(including adopted son); or daughter (including
widowed/ adopted/ married/ divorced daughter).
However, if such Railway Servant has left
sons/daughters, who have been treated as
legitimate or deemed to be legitimate, under
Section 16 of Hindu Marriage Act, 1955, neither
widow can nominate them as bread winner for CG
appointment nor such sons/daughters can claim CG
appointment.

(b) In cases of those Railway Servants who are
governed by their respective Personal Laws :- Son
(including adopted son); or daughter (including
widowed/ adopted/ married/ divorced daughter).
However, if such Railway Servant has left
sons/daughters through second/subsequent legally
valid marriages, i.e. other than through first wife
and deceased Railway Servant have failed to obtain
requisite permission for such second/subsequent
marriage as required under section 21 (relating to
restrictions regarding marriage) of the Railway
Services (Conduct) Rules, 1966, neither first
widow/second/subsequent widow can nominate
such sons/daughters as bread winner for CG
appointment nor such sons/daughters can claim CG
appointment. Moreover, such second/subsequent
widow also would not have any right to seek
compassionate grounds appointment.”

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9 We may note that in paragraph 20 of the aforesaid decision in
the case of Union of India Vs. V.R. Tripathi (supra), the Apex Court referred
to the fact that Railway Board issued another circular dated 13 th April 2011
in terms of the earlier circular dated 2 nd January 1992. The Apex Court
observed that this action was improper. Therefore, there is a serious
question mark against the action of Railway Board of issuing circular dated
21st March 2018 excluding the children of the second wife of deceased
employees from compassionate appointment. This circular is completely
contrary to the law laid down by the Apex Court in the aforesaid judgment
dated 11th December 2018 and violates Article 14 of the Constitution of
India. In any case, on the date of consideration of the application made by
the petitioner, the said circular was not in existence. When the application
was made by the petitioner and his mother requesting for grant of
compassionate appointment to the petitioner was considered on 6 th
December 2016, he was entitled to compassionate appointment being son of
the deceased Railway employee in terms of the aforesaid decision of this
Court and Apex Court in the case of V.R.Tripathi. In any event, the decision
on the application made by the petitioner will be governed by the decision
of the Apex Court in the case of Union of India Vs. V.R. Tripathi (supra) as it
confirms the decision of this Court which was operating when the
application made by the petitioner was considered.

10 Accordingly, we pass the following order :-

ORDER

(i) The impugned order dated 6th December 2016 (Exhibit – C)
is hereby set aside;

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(ii) We direct the respondent to consider the case of the
petitioner afresh for grant of compassionate appointment in
the light of what is held in this judgment. Appropriate
decision shall be taken within a period of two months from
today;

(iii) Rule is made absolute on above terms.

(SANDEEP K. SHINDE, J) (A.S. OKA, J)

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