Bombay High Court
Union Of India And Anr vs V.R. Tripathi on 1 April, 2016
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 910 OF 2015
Union of India and anr. .. Petitioners.
V/s.
V.R. Tripathi .. Respondent
Mr. Suresh Kumar a/w. Ms Sangita Yadav for the petitioners.
Mr. Pravin H. Padave for the respondent.
CORAM: D.H. WAGHELA, C.J. AND
M.S.SONAK, J.
ig DATE : 01 APRIL 2016.
JUDGEMENT: (Per M.S. SONAK, J.)
1] Rule. With the consent of and at the request of learned
counsel for the parties, Rule is made returnable forthwith.
2] The petitioners-Union of India (Railways) challenge
the orders dated 6 March 2014 and 26 August 2014 made by the
Central Administrative Tribunal (CAT) in Original Application No.
110 of 2014 and Review Petition No. 29 of 2014, merely directing
that the case of respondent, the son of late Ramlakhan Tripati
(Technician Grade-I) a permanent railway employee, who died in
harness on 28 November 2009 be considered for compassionate
appointment. The directions contained in the impugned orders, it
must be noted, do not direct the appointment of the respondent
on compassionate basis, but merely directs consideration of the
respondent's case for appointment on compassionate basis, on its
own merits and in accordance with law.
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3] Mr. Suresh Kumar, learned counsel for the Union of
India (Railways), has submitted that compassionate appointment,
is not a regular source of appointment, but rather the same is an
exception to the rule. Mr. Suresh Kumar submitted that such
matters can be considered strictly in accordance with rules and the
circulars, which hold the field and not otherwise. Mr. Suresh
Kumar relied upon railway board's circular dated 2 January 1992,
which inter alia, provides that where the deceased employee has
contracted a second marriage during subsistence of the first
marriage, without obtaining permission from the railways, such
second wife or children from second wife will not be entitled to
compassionate appointment. Mr. Suresh Kumar submitted that the
position which flows from such circular, has in fact been accepted
by the Division Bench of this Court in Pratibha D. Salve Vs. The
Union of India and anr.1 and in Union of India and anr. Vs.
Pradeep Uttam Gid2. Mr. Suresh Kumar submitted that similar
position has also been accepted by the Division Bench of
Jharkhand High Court in Union of India Vs. Basanti Devi3. In
these circumstances, Mr. Suresh Kumar submitted that the CAT
was not right in refusing to follow the railway board's circular
dated 2 January 1992 on the ground that such circular has been
struck down as unconstitutional by the Division Bench of the
Calcutta High Court in case of Namita Goldar and anr. Vs. Union
of India and ors.4. For all these reasons, Mr. Suresh Kumar
1 Writ Petition No. 1156 of 2013 decided on 8/12/2014 (Aurangabad Bench)
2 Writ Petition No. 3374 of 2014 decided on 31/7/2015 (Nagpur Bench)
3 (2011) 3 AIR Jhar R 192
4 2010 LAB I.C. 1465
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submitted that the impugned orders made by the CAT warrant
interference.
4] Mr. Suresh Kumar, learned counsel for the Union of
India (Railways), further submitted that Shri Ramlakhan Tripathi,
the respondent's father, who died in harness was guilty of
misconduct in marrying for second time during subsistence of his
first marriage. Further, Mr. Suresh Kumar submitted that the
respondent being an "illegitimate child" of late Shri. Ramlakhan
Tripathi can claim no consideration in the matter of
compassionate appointment. Mr. Suresh Kumar, therefore,
submitted that even if the railway board's circular dated 2 January
1992 is held to be a nullity, the CAT has exceeded its jurisdiction
in directing the Union of India (Railways) to consider the case of
the respondent for compassionate appointment. For this reason
also, Mr. Suresh Kumar submitted that the impugned orders made
by the CAT deserve to be set aside.
5] Mr. Pravin Padave, learned advocate of the respondent,
submitted that there is no jurisdictional error whatsoever in the
making of impugned orders by the CAT. He submitted that the
railway board's circular dated 2 January 1992 was struck down as
unconstitutional by the Division Bench of the Calcutta High Court
on 10 February 2010. The said judgment has not been appealed
by Union of India. In fact, as noted by the CAT, the Union of India
has complied with said judgment of the Calcutta High Court and
granted compassionate appointment to Namita Goldar. He
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submitted that the Union of India did not point out the decision in
Namita Goldar (supra), to the Division Bench of Jharkhand High
Court. The decisions rendered by this Court are clearly
distinguishable on facts and in any case, the provisions contained
in Section 16 of the Hindu Marriage Act, 1955 (H.M.Act) were not
considered by this Court. Similarly, the two decisions have also not
taken into consideration the decision of the Hon'ble Supreme
Court in Rameshwari Devi Vs. State of Bihar and ors. 5. Mr.
Padave further submitted that no disciplinary proceedings were
ever initiated against Shri. Ramlakhan Tripathi during his tenure
of service. Rather, the railways have agreed to sharing of pension
and other terminal benefits between the two wives. Mr. Padave
submitted that in view of categorical provision contained in
Section 16 of the H. M. Act, 1955, the contentions with regard to
respondent's illegitimacy, is quite misconceived. For all the
aforesaid reasons, Mr. Padave submitted that this petition may be
dismissed.
6] Rival contentions now fall for determination.
7] There can be no dispute that with regard to the general
proposition that the compassionate appointment is not a normal
source of appointment. Rather, compassionate appointment is an
exception to the general rule and therefore, consideration of the
same has to be on the basis of rules, regulations or executive
instructions, which may be in force in that regard. There is also no
5 (2000) 2 SCC 431
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dispute that the railways have a scheme for compassionate
appointment. The only reason, which had prompted the railways
to decline even to consider the case of the Union of India
(Railways) for compassionate appointment was the railway
board's circular dated 2 January 1992, which had inter alia,
provided that where the employee dying in harness, had
contracted a second marriage during subsistence of the first
marriage, without obtaining the permission from the railways,
such second wife or the children from such second wife will not be
entitled to any compassionate appointment.
8] In Namita Goldar (supra), the Division Bench of the
Calcutta High Court has held that the railway board's circular
dated 2 January 1992 cannot be sustained in the eyes of law and
has therefore, struck down the same to the extent the circular
prevented the children of second wife for being considered for
appointment on compassionate grounds. The relevant discussion
contained in paragraphs 4 to 9, reads thus :
"4. Admittedly, in the present case, second marriage of
the deceased employee was accepted by the first wife since
she never challenged the said second marriage and did
not even lodge any complaint before the railway
authorities for taking appropriate action against the said
deceased employee for contracting second marriage and
therefore, we have no difficulty to accept that the
deceased employee marriage for the second time upon
obtaining specific consent from the first wife. There is
also no dispute that the said deceased employee used to
live with both the wives and the four children of the
second wife. Since the first wife died shortly after the
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death of the deceased employee, family pension and other
retiral benefits also disbursed to the second wife and his
children. The compassionate appointment was claimed
by the eldest son of the second wife, as the first wife was
issueless and also died shortly after the death of the
employee concerned.
4. 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.
5. 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.
6. 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.
7. 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
respondents authorities for granting compassionate
appoint-ment to the said son of the second wife, namely
the petitioner No.2 herein and directed the General
Manger, 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
nd
on 2 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 he 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)
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8. In the aforesaid circumstances, the aforesaid
nd
circular issued by the Railway Board on 2
January,
1992 stands quashed to the extent it prevents the
children of the second wife from being considered for
appointments on compassionate ground."
(emphasis supplied)
9] Admittedly, the Union of India (Railway) has not
challenged the decision in Namita Goldar (supra). Subsequently,
the said decision appears to have been consistently followed by
the Calcutta High Court. The CAT, in its order dated 6 March 2014
has made reference to yet another decision of Calcutta High Court
in Union of India and ors. Vs. Smt. Meena Oraon and anr.6, in
which it is held as under:
"7. These submissions of Mr. Chakraborty are
untenable. The Division Bench of this Court while
deciding the case of Smt. Namita Goldar and Anr. Vs.
Union of India & Ors. (supra) has already held that the
nd
circular of the Railway Board issued on 2 January
1992 is ultra vires and has quashed it to the extent that
it prevents the children of the second wife from being
considered for appointment on compassionate grounds.
Thus that provision on the basis of which the Railways
refused appointment to the respondent no.2 is not in
existence. It is a dead letter after February 10, 2010,
when the Division Bench delivered its judgment in Smt.
Namita Goldar & Anr. Vs. Union of India & Ors. (supra).
We cannot, therefore, infuse life into a dead letter. If the
Railways were aggrieved by the decision of the Division
Bench they ought to have challenged the same before the
Supreme Court. Not having done so, the Railways cannot
reopen the issue before us by submitting that the
judgment is per incuriam and sub silentio. Apart from
this, the Railways have though it fit to grant
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employment in the case of Smt. Namita Goldar & Anr.
Vs. Union of India & Ors. (supra) on compassionate
grounds. However, in the case of respondent no.2 they
have decided to challenge the decision of the Tribunal
which has merely followed the decision in Smt. Namita
Goldar & anr. Vs. Union of Iida & Ors. (supra)
8. We, therefore, do not think it necessary to consider
the submission of Mr. Chakraborty for the petitioners as
the Railway Board's circular has already been set aside
by the Division Bench of this Court and the Railways
have taken no steps to challenge that decision, for
reasons best known to them".
ig (emphasis supplied)
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.
11] In Kusum Ingots and Alloy Ltd. vs. Union of India
and anr.7, the Hon'ble Supreme Court has held that any order
7 (2004) 6 SCC 254
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passed on writ petition questioning the constitutionality of a
parliamentary Act, whether interim or final, keeping in view of the
provisions contained in clause (2) of Article 226 of Constitution of
India, will have effect throughout the territory of India, subject of
course to the applicability of the Act. In the present case, the
Division Bench of Calcutta High Court in Namita Goldar (supra),
has already set aside the railway board's circular dated 2 January
1992. The Union of India has not challenged the decision in
Namita Goldar (supra), but rather, has given compassionate
appointment to him, even though, he was the son of second wife.
In these circumstances, we fail to understand as to how the Union
of India can insist upon relying upon the railway board's circular
dated 2 January 1992 and in some instances, without even
disclosing the circumstance was that the circular has been already
struck down by the Division Bench of the Calcutta High Court to
the extent it denies consideration for compassionate appointment
to the children of second wife. In any case, on basis of railway
board's circular dated 2 January 1992, which has already been
struck down, there is no question of the Union of India rejecting
the application of the respondent to be considered for
compassionate appointment at the threshold.
12] The second contention of Mr. Suresh Kumar that late
Shri. Ramlakhan Tripathi was guilty of misconduct in marrying for
second time during the subsistence of first marriage cannot be
accepted. In the first place, late Shri. Ramlakhan Tripathi was
neither charged nor were any disciplinary proceedings initiated
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against him during his service tenure. Further, the Union of India
(Railways), relying upon a memorandum of understanding
entered into between the two wives of late Ramlakhan Tripathi
have permitted sharing of retiral and terminal benefits between
the two wives inter se. One S.M. Borkar, S & W Inspector in his
Report dated 15 September 2012, has stated that the deceased
Ramlakhan has, upon verification, stated that the deceased
Ramlakhan Tripathi had no issues from out of his marriage with
Smt. Kusum (first wife) and was therefore, persuaded by said
Kusum to marry Kanchan (second wife). The report states that the
two wives and two children from the second marriage, i.e., Vivek
and Abhishek, are all staying together and the two wives have no
objection to sharing the pension and terminal benefits inter se. The
report dated 15 September 2012 and the memo of understanding
accompanying the same was in fact produced by Mr. Suresh
Kumar, learned counsel for the Union of India (Railways) in
support of his contention that the respondent Vivek Tripathi is the
son from second wife. The memorandum of understanding,
incidentally records that the two wives desire that the respondent-
Vivek obtains the railway service as legal legal representative of
late Shri. Ramlakhan Tripathi, who has died in harness.
13] Whilst we entirely agree with Mr. Suresh Kumar,
learned counsel for the Union of India (Railways), that such
memorandum of understanding does not bind the Union of India
(Railways), we only wish to state that the Union of India
(Railways) has in fact acted on the basis of such memorandum of
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understanding, in the matter of payment of pension and terminal
benefits. In Rameshwari Devi (supra), to which reference will be
made in details hereinafter, in some what similar circumstances,
the contention that the deceased employee had committed
misconduct came to be rejected by the Hon'ble Supreme Court.
Accordingly, we are unable to accept the second contention of Mr.
Suresh Kumar, learned counsel for the Union of India (Railways).
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 marriage under this Act
and whether or not the marriage is held to be void
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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."
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.
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16] In Rameshwari Devi (supra), the dispute concerned
payment of family of pension and death-cum-retirement 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 pension and death-cum-retirement 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 death-cum-retirement 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
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was living as no disciplinary proceedings were held
against him during his lifetime. In the present case, we
are concerned only with the question as to who is entitled
to the family pension and death-cum-retirement gratuity
on the death of Narain Lal. When there are two
claimants to the pensionary benefits of a deceased
employee and there is no nomination wherever required
the State Government has to hold an inquiry as to the
rightful claimant. Disbursement of pension cannot wait
till a civil court pronounces upon the respective rights of
the parties. That would certainly be a long-drawn affair.
The doors of civil courts are always open to any party
after and even before a decision is reached by the State
Government as to who is entitled to pensionary benefits.
Of course, inquiry conducted by the State Government
cannot be a sham affair and it could also not be
arbitrary. The decision has to be taken in a bona fide,
reasonable and rational manner. In the present case an
inquiry was held which cannot be termed as a sham. The
result of the inquiry was that Yogmaya Devi and Narain
Lal lived as husband and wife since 1963. A presumption
does arise, therefore, that the marriage of Yogmaya Devi
with Narain Lal was in accordance with Hindu rites and
all ceremonies connected with a valid Hindu marriage
were performed. This presumption Rameshwari Devi has
been unable to rebut. Nevertheless, that, however, does
not make the marriage between Yogmaya Devi and
Narain Lal as legal. Of course, when there is a charge of
bigamy under Section 494 IPC strict proof of
solemnisation of the second marriage with due
observance of rituals and ceremonies has been insisted
upon.
14. It cannot be disputed that the marriage between
Narain Lal and Yogmaya Devi was in contravention of
clause (i) of Section 5 of the Hindu Marriage Act and
was a void marriage. Under Section 16 of this Act,
children of a void marriage are legitimate. Under the
Hindu Succession Act, 1956, property of a male Hindu
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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
death-cum-retirement 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."
(emphasis supplied)
17] The provisions contained in Section 16 of the H.M.
Act, as interpreted by the Hon'ble Supreme Court in 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.
18] Insofar as case of Basanti Devi (supra) is concerned,
we must note that the Union of India (Railways) failed to even
bring to notice of Jharkhand High Court, decision of the Calcutta
High Court in Namita Goldar (supra), wherein the railway
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board's circular dated 2 January 1992, was specifically struck
down, to the extent it related to children of second marriage. The
railway board's circular dated 2 January 1992 was struck down by
the Calcutta High Court in Namita Goldar (supra) on 10
February 2010. Therefore, in terms of the law laid down by the
Hon'ble Supreme Court in Kusum Ingots and Alloy Ltd. (supra),
such circular was not at all in existence on the date,i.e., 13 April
2011, when the Jharkhand High Court, relying upon the same,
decided the case of Basanti Devi (supra). In any case, with
utmost respect we do not agree with the view taken by the
Jharkhand High Court in Basanti Devi (supra).
19] In Pratibha Salve (supra), the Division Bench of this
Court was dealing with the claim of second wife for
compassionate appointment, after admitting that her marriage
was solemnized whilst the marriage with first wife was in
subsistence. The provisions contained Section 5(i) read with
Section 11 of the H.M. Act, declare such second marriage as void.
There is no protection accorded to such second marriage under
Section 16 of the H.M. Act. In Namita Goldar (supra), the
railway board's circular dated 2 January 1993 was not interfered
with to the extent it applied to the second wife. In such
circumstances, the Division Bench of this Court, naturally, denied
the benefit of compassionate appointment to the second wife. The
decision is clearly distinguishable and does not apply to the fact
situation in the present case, where, the claim for compassionate
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appointment is raised, not by second wife, but by the son from
such second wife. The decision in Pratibha Salve (supra), is
therefore, of no assistance to the Union of India (Railways) in the
present case.
20] The decision in Pradeep Uttam Gid (supra), delivered
by the Division Bench of this Court mainly proceeds upon the
circumstance that there was unreasonable delay in the matter of
demand of compassionate appointment. In the said case, the
employee Uttam Gid had expired in harness on 6 February 1999.
At the time of his demise, his son Pradeep was a minor. Pradeep
attained majority on 22 October 2013 and the application seeking
compassionate appointment was made only in the year 2011, i.e.,
after delay of eight years. In this fact situation, the Division bench
of this Court has held that the directions of the CAT to consider
Pradeep's case for compassionate appointment came to be set
aside. The Division Bench of this Court observed that after lapse of
over ten years, there was no question of considering the Pradeep's
case for compassionate appointment merely on the ground that
railway board's circular dated 2 January 1992 had been set aside
by the Calcutta High Court. The observations in paragraph '6' of
the said judgment and order are therefore, to be construed in the
light of fact situation in the said case. Even otherwise, the Division
Bench has not made any reference to the provisions contained in
Section 16 of the H. M. Act as interpreted by the Hon'ble Supreme
Court in Rameshwari Devi (supra). The provisions make it clear
that even though the marriage with second wife may be void,
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nevertheless, the children of such marriage are legitimate.
21] For all the aforesaid reasons, we see no ground to interfere
with the impugned orders made by the CAT. However, we once
again clarify that the impugned orders merely direct the Union of
India (Railways) to consider the case of the respondent for
compassionate appointment on its own merits and in accordance
with existing rules and regulations, without adverting to railway
board's circular dated 2 January 1992. We therefore, direct the
Union of India (Railways) to take a decision in this regard, as
expeditiously as possible and in any case within a period of three
months from today and thereafter, to communicate the such
decision to the respondent.
22] Rule is accordingly, discharged. There shall be no order as
to costs.
23] All concerned to act on the basis of authenticated copy of
this order.
(CHIEF JUSTICE)
(M.S.SONAK, J.)
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