Ram Kumar Shukla vs State Of U.P. Thru Prin.Secy.Home ...
2017 Latest Caselaw 992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 7
 

 
Case :- SERVICE SINGLE No. - 10873 of 2017
 

 
Petitioner :- Ram Kumar Shukla
 
Respondent :- State Of U.P. Thru Prin.Secy.Home Deptt.Civil Sectt.Lko.&Ors
 
Counsel for Petitioner :- Raj Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Heard.

This is a writ petition under Article 226 of the Constitution of India challenging an order dated 12.1.2017 passed by the Commandant 35th Battalion, P.A.C., Lucknow, rejecting the claim of the petitioner to compassionate appointment relying upon a judgment of a Single Judge Bench of this Court dated 11.10.2013 rendered in Writ Petition No.107365 of 2003, Ramesh Chandra v. Power Corporation Ltd., on the ground that in view of the said judgment Agreement between two alleged widows of the deceased cannot be the basis for granting compassionate appointment. The impugned order also refers to some other decision dated 5.4.2006 rendered in the case of Rakesh Kumar Pandey v. State of U.P., details thereof are not referred. The impugned order also refers to Rule 29 of U.P. Government Servants Conduct Rules 1956 (hereinafter referred as 'Act 1956') which, according to the Commandant, says that second marriage during subsistence of first one renders the subsequent one invalid.

Validity of the impugned order is to be seen from the reasons mentioned therein, therefore, on the basis of the facts which are mentioned therein itself the writ petition can be disposed of considering the legal position, as such there is no need to call for a counter affidavit. 

It is not in dispute that the petitioner is the son from the second marriage of the deceased employee late Munna Ram Shukla and Raj Kumari (his mother).

The petitioner has filed a supplementary affidavit today, which is taken on record, stating that no children were born out of the wedlock of late Munnal Ram Shukla with his first wife namely Malkin Shukla.

The contention of the learned counsel for the petitioner is that whatever may be the fate of the second marriage and its validity, as far as the children born out of the said marriage are concerned, they are legitimate children, therefore, the petitioner falls within the definition of 'Family' as contained in Rule 2(c) and the term 'sons' used in Clause (ii) thereof will include the son(s) born out of a second marriage. He relied upon the provisions of section 16 of the Hindu Marriage Act 1955 (hereinafter referred as 'Act 1955') in this regard.

It is not in dispute that the deceased as also his alleged wives were/are Hindus. The legal position is very well settled that a second marriage during subsistence of the first one is void under section 11 of the Act 1955 which applies to Hindus as is defined therein and bigamy is an offence under the Criminal Law as also section 17 of the Act 1955 and is also a misconduct under Rule 29 of the U.P. Government Servants Conduct Rules 1956.

Voidable marriages have been dealt with in Section 12 of the Act 1955. Section 16 of the Act 1955 deals with legitimacy of children of the void and voidable marriages, which reads as under:

"16. Legitimacy of children of void and 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 marriage under this Act and whether or not the marriage is held to be void otherwise than on a 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."

Section 16 of the Act while engrafting a Rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable, chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of parents only [2003(1) SCC 730, Jinia Keotin and Ors. vs. Kumar Sitaram Manjhi and Ors.]

Viewed in the light of the aforesaid provision the order impugned herein and the reasoning given therein cannot be sustained. Reliance placed upon Rule 29 is absolutely misplaced as the said Rule makes the second marriage during the subsistence of the first a misconduct on the part of the employee, but this does not mean that the children born of the said wedlock would not be entitled to the benefits which a legitimate child would get. This aspect of the matter has now been very well settled by the Supreme Court in its recent decision reported in 2000 (2) SCC 431, Rameshwari Devi v. State of Bihar & ors. Issue in the said case was of inheritance, but the law with regard to the legitimacy of child born of a void marriage was enunciated therein in the light of the provisions contained in the Act 1955. The Supreme Court held that even though the marriage of the husband with the second wife was void, their children would be legitimate and, thus, would be entitled to claim share in the family property and death-cum-retirement gratuity of the husband Narain Lal, but only till they attain majority.

In another decision reported in 1996 (4) SCC 76, Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and ors. vs. K. Devi and ors., the Supreme Court had the occasion to consider the issue of legitimacy of a child in the backdrop of various statutory provisions and the law prevailing in this country as also elsewhere which referred to the defect in section 16 as it existed prior to its amendment in 1976 as also the Joint Committee of the Parliament which was constituted to look into provisions of the Hindu Marriage Act in this regard which indicated in its report that in no case should children be regarded as illegitimate and consequently it followed the provisions  contained in section 26 of the Special Marriage Act 1954 to provide that children born of void or voidable marriages shall be treated to be legitimate unlike the English Law which holds the child of voidable marriages alone to be legitimate, but not that of a void marriage. The Supreme Court observed that Hindu Marriage Act 1955 is a beneficent legislation and therefore it has to be interpreted in such a manner as advances the object of the legislation. The Act intends to bring about social reforms. Conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as 'bastard' is the prime object of section 16.

The Supreme Court held that even if a government servant contracted second marriage during the subsistence of his first marriage, children born out of such second marriage would still be legitimate, though the second marriage itself would be void. The Court, therefore, went on to hold that such children would be entitled to the pension, but not the second wife. This decision was referred by the Supreme Court in the case of Vidyadhari & ors. V. Sukhrana Bai & ors., reported in (2008) 2 SCC 238.

In view of the aforesaid legal position as enunciated by the Supreme Court with regard to legitimacy of children, the judgment of the Single Judge Bench of this Court dated 15.10.2003 rendered in Civil Miscellaneous Writ Petition No.107365 of 2003, Ramesh Chandra v. U.P. Power Corporation Ltd. & ord., holding to the contrary does not come in the way and cannot be pressed into service, as the decision of the Supreme Court takes precedence in view of Articles 141 and 144 of the Constitution of India, thus, the reliance placed upon the said judgment ignoring the dictum of the Supreme Court is misplaced.

It is not out of place that that the question of compassionate appointment of a child born out of a second marriage in the circumstances aforesaid, fell for consideration before the Jharkhand High Court also in L.P.A. No.245 of 2006, Ram Janam Paswan v. State of Jharkhand Deputy Commissioner and the Division Bench of the said Court relying upon another judgment of the Patna High Court reported in 1998 1 PLJR 769, Bharat Coking Coal Ltd. and Ors. vs. Ujjawal Kumar Ray and Ors., wherein it had been held that even though a legally adopted son is entitled to get appointment on compassionate ground, but he must fulfill the criteria laid down for such appointment, similarly an illegitimate child of a deceased employee is also entitled to get appointment on compassionate ground subject to, however, fulfillment of criteria laid down by the authority concerned.

The use of the word 'illegitimate child' in the said judgment in the view of this court is not appropriate, as the law itself confers legitimacy on such children, but otherwise same is fully applicable to the facts of the said case. The Jharkhand High Court in the aforesaid case reiterated the legal position as aforesaid.

A similar view was taken by the Karnataka High Court in Writ Appeal No. 3144 of 2010 (S)(RES), Sri J. Mahendra v. General Manager (Electrical) and the Assistant Executive Engineer (Electrical) relying upon the decision of the Supreme Court in Rameshwari Devi (supra).

These proceedings do not relate to alleged misconduct of Munna Ram Shukla, but the alleged rights of his son, born of second marriage, to compassionate appointment.

In view of the above discussion, it is not in doubt that the petitioner having been born of the wedlock of late Munna Ram Shukla with the second wife Rajkumari Shukla, is a legitimate son in view of section 16 of the Hindu Marriage Act 1955 and the law declared by the Supreme Court as aforesaid.

Now to consider the provisions of the U.P. Recruitment of Dependent of Government Servant Dying-in-Harness Rules, 1974 (hereinafter referred as 'Rules 1974'). Rule 2(c) defines 'Family' for the purposes of application of the said Rules, as under:

"2(c) "family" shall include the following relations of the deceased Government servant:

(i) Wife or husband;

(ii) Sons/adopted sons;

(iii) Unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law;

(iv) Unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried;

(v) aforementioned relations of such missing Government servant who has been declared as "dead" by the competent Court;

Provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in Government service, then only in such situation the word "family" shall also include the grandsons and the unmarried granddaughters of the deceased Government servant dependent on him."

The definition of 'Family' includes the relationship of sons in Clause (ii) thereof. The term 'sons' has not been defined under the said Rules, therefore, in the case of a Hindu, as the present one, it has to be understood in the context of section 16 to include such a son as the petitioner, as, he is a legitimate son as per law. If such a son is entitled to death-cum-retirement gratuity and pension as per dictum of the Supreme Court in the cases of Rameshwari Devi (supra) and Vidyadhari (supra), then there is no reason as to why he cannot be considered for compassionate appointment. He cannot be penalized for an alleged misconduct of his father in terms of Rule 29 of Rules 1956, who was never penalized for it. It being so, the very basis for passing the impugned order does not survive, consequently, the impugned order is quashed.

It is pertinent to mention that the first wife had expired long back and no children were born from that wedlock i.e. the wedlock of late Munna Ram Shukla with his first wife. Even if they had, in view of the legitimacy of child born of the second marriage at best it would be a case of rival claim to be considered under Rule 7 of Rules 1974, but in this case even this factual scenario does not arise.

In view of the above the impugned order is hereby quashed. The Commandant, 35th Battalion, P.A.C., Lucknow, is directed to re-consider the claim of the petitioner in accordance with the Rules and policy relating to compassionate appointment, but keeping in mind the observations made hereinabove. The writ petition stands allowed.

Order Date :- 23.5.2017

A.Nigam

(Rajan Roy, J.)