Anil Kumar vs State Of U.P. Thru Prin. Secy. Home ...
2022 Latest Caselaw 6524 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 
Case :- WRIT - A No. - 31376 of 2018
 
Petitioner :- Anil Kumar
 
Respondent :- State Of U.P. Thru Prin. Secy. Home Lucknow And Ors.
 
Counsel for Petitioner :- Suneel Kumar Singh Kalhan,Anil Sharma,Pradeep Kumar Tripathi,Richa Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Pradeep Kumar Tripathi, learned counsel for the petitioner as well as Sri Ved Prakash Sharma, learned Standing counsel for the opposite parties.

2. By means of the present writ petition the petitioner has challenged the order dated 7th March, 2018 passed by Senior Superintendent of Police, Lucknow thereby rejecting the representation of the petitioner for appointment on compassionate grounds under Dying in Harness Rules, 1974 on the ground that the petitioner is the son of second wife of deceased employee, who died in harness and his son born out of void or voidable marriage is, therefore, not included in the definition of family.

3. Learned counsel for the petitioner, on the other hand, has submitted that the petitioner is a son of Prem Nath, who was working on the post of Head Constable and died in harness on 29.11.2016. Father of the petitioner had married second time with Shiv Pyari during the life time of his first wife and the petitioner is the son of Shiv Pyari and is seeking appointment under Dying in Harness Rules stating that he is covered under the definition of family and is fully eligible and entitled for bring appointed. In support of his submissions he has submitted that the second marriage may either be viodable or void but the children bore out of the second marriage are legitimate. In this regard he has placed reliance upon the judgment and order of this Court in the case of Km. Dipanshi Singh Vs. State of U.P. and others, passed in Service Single writ petition No.13686 of 2018 where where learned Single Judge of this Court has considered various judgment of Supreme Court, namely, Jinia Keotin and others Vs. Kumar Sitaram Manjhi and others 2003 (1) SCC 730, Rameshwati Devi Vs. State of Bihar and othes 2000 (2) SCC 431, Smt. Parayankandiyal Eravth Kanapravan Kalliani Amma and others Vs. K. Devi and others, 1996 (4) SCC 76, Vidyadhari and others Vs. Sukhrana Bai and others (2008) 2 SCC 238 and Bharat Coking Coal Ltd. and others VS. UIjjawal Kumar Ray and others,1998 1 PLJR 769.

4. Learned Standing counsel, on the other hand, has vehemently submitted that in fact, his father being a government servant could not have married for second time and even otherwise he has committed bigamy and the petitioner being offspring of the second wife is not entitled for appointment.

5. I have heard learned counsel for the parties.

6. It is now settled legal position by this Court as well as Apex Court that second marriage during service is void under Section 16 of Hindu Marriage Act, 1955 and also bigamy is an offence in law and misconduct under Rule 29 of the said Rules.The relevant portion of the judgment and order rendered by this Court in the case of Km. Dipanshi Singh Vs. State of U.P. and others, passed in Service Single writ petition No.13686 of 2018 is quoted as under:-

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.

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 unmarried daughter in Clause (iii) thereof. The term 'unmarried daughter' has been defined under the said Rules, therefore, in the case in hand, it has to be understood that unmarried daughter is covered under the definition of family. If such unmarried daughter 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 she cannot be considered for compassionate appointment. She cannot be penalized for an alleged misconduct of her 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.

In view of the above the impugned order is hereby quashed. The S.S.P., Lucknow, is directed to re-consider the claim of the petitioner in accordance with the Rules and policy relating to compassionate appointment and keeping in mind the observations made hereinabove, pass appropriate reasoned and speaking order within a period of two months from the date of production of certified copy of this order produced before him.

With the aforesaid observation and direction, the writ petition succeeds and is allowed."

7. From the case law described above, it is settled legal proposition that a child born out of void or voidable marriage is legitimate and would be entitled to be included in the definition of 'family' and would, therefore, be eligible to be appointed under Dying in Harness Rules, 1974.

8. In view of what has been stated above, the writ petition is allowed. The impugned order dated 7.3.2018 passed by Senior Superintendent of Police, Lucknow, contained in Annexure No.1 to this writ petition, is quashed. Senior Superintendent of Police, Lucknow is directed to consider the claim of the petitioner in light of the observations made herein-above and pass necessary orders expeditiously, say within six weeks from the date a certified copy of this order is served upon him.

Order Date :- 12.7.2022 (Alok Mathur, J.)

RKM.