Can't Discriminate Between Children Born Out Of Valid And Void Marriages While Awarding Compassionate Appointment: Calcutta HC

The Calcutta High Court has observed that it is reprehensible and repugnant to distinguish the eligibility or suitability to the compassionate appointment considering the valid or void source of inception of a child’s birth.

The Court was considering a Writ Petition seeking direction to Eastern Railways to consider the appointment of the Petitioner on compassionate grounds.

The single-bench of Justice Ananya Bandopadhyaya observed, "The objective to grant compassionate appointment to redress financial constraints occasioned in a family in the event of the death of the bread earner ensures a means of sufficiency to assuage abrupt crisis and indigence, which cannot be refused ambiguously and unjustifiably on the basis of a circular which is unequivocally unconstitutional to judge a child’s entitlement to an appointment on compassionate ground on the basis of its descent. It is reprehensible and repugnant to distinguish the eligibility or suitability to the aforesaid appointment considering the valid or void source of inception of a child’s birth. The circular vitiates and invalidates the constitutional mandate of equality before law."

The Petitioner was represented by Advocate Pratik Majumder while the Respondent was represented by Advocate Sanajit Kumar Ghosh.

The Petitioner had sought direction to Eastern Railways to suspend the implementation of the order dated 19.03.2013 and to consider the appointment of the petitioner No. 2 on compassionate grounds without taking into consideration the Railway Board’s Circular dated 2nd January, 1992. Furthermore, the petitioner prayed for the Railway Board’s Circular dated 2nd January, 1992 to be declared ultra vires and non est in the eyes of the law.

The Husband of Petitioner no. 1 was the Head Constable of Railway Protection Force of Eastern Railway. He expired on duty, being survived by two wives, viz. his first wife, i.e. petitioner no. 1 and Smt. Dewanti Devi, the second wife along with two sons and a daughter. Petitioner No. 2 being the younger son of the second wife filed a representation to I.G. cum Chief Security Commissioner RPF Eastern Railways, Kolkata to appoint Petitioner no. 2 on compassionate ground. Petitioner no. 1, being the first wife of the deceased did not object to the second marriage of her husband to the mother of petitioner no. 2, being the second wife. The elder son of the second wife of the deceased refrained to object through a representation to such employment on compassionate grounds. 

The Senior Divisional Personnel Officer of the Eastern Railway, Asansol pointed out that in terms of the Railway Board’s Letter of 2022, if an employee died in harness leaving more than one wife along with children born to thesecond wife, appointment on compassionate grounds to the second wife and her children could not be considered unless the administration had permitted the second marriage in special circumstances, taking into account personal laws and other such circumstances. Therefore, Petitioner no. 1 was asked to intimate as to whether her late husband had taken any permission from the administration regarding his marriage to his second wife and to provide the relevant documents effectively. The Authorities were aware of the second marriage of the deceased since his children from the second marriage received benefits in the capacity of dependents of the deceased from the Railway Department. Petitioner No. 1 further stated she had no objection to the younger son being considered for employment on compassionate grounds since she herself did not have any children.

Later, the Senior Divisional Personnel Officer of the Eastern Railway, Asansol observed that the deceased was married twice during his lifetime while his first wife was alive and in term of the Railway Board’s Letter of 1992, the children of the second widow would not be considered for appointment for employment on compassionate grounds unless permission had been taken from authorities for the marriage of the deceased to his second wife. In this view, the request considering Petitioner no. 2 for compassionate appointment was rejected.

Counsel for the Petitioner referred to Hindu Succession Act, 1956, and submitted the marriage between the said deceased employee and the second wife might be void but the children born out of second marriage during life time of first wife entitled them to receive equal shares in the properties of the deceased as the children of the second wife should be treated at par with the legitimate children of the deceased employee with a similar entitlement to appointment on compassionate ground in consonance with the provisions of the said Hindu Succession Act. 1956.

It was further submitted that the object of the compassionate appointment was to provide employment to a son or daughter or near relative, who would take care of the family of a government servant, who died-in-harness, leaving his family in precarious circumstances and to mitigate the sufferings of the bereaved family. Employment of petitioner no. 2 on compassionate ground would serve the object of compassionate appointment. He also referred to Supreme Court's decision wherein it was held though the second marriage was said to be irregular, the children born out of such marriage would not dis-entitle them to claim the benefits of their parents and as such the question of legitimacy could not be a stumbling block for Petitioner no. 2 to receive employment on compassionate ground and as such the purported order suffered from illegality and perversity and the same was liable to be set aside. 

The Court at the oustet observed that the legal intent of the provisions enumerated in Section 16 of the Hindu Marriage Act, 1955 vividly explained by the decisions of the Supreme Court as cited above fortified the status of a child born out of a void marriage to be a legitimate child to eradicate discrimination compared to a child born out of a valid marriage.

"A child by virtue of its birth cannot be enamoured by legitimacy and/or stigmatized by illegitimacy contrary to the principle enshrined in Article 14 of the Constitution to its prejudice devoid of any iota of fault on its part of having taken birth through a void marriage," the Court observed.

The Court noted that the Railways should not have given effect to the circular of 1992 once it had been struck down by the Division Bench in Namita Goldar v Union of India as observed by the Supreme Court in paragraph 20 of V.R. Tripathi (Supra). 

The Court found the said circular to be ultra vires to the Constitution and compassionate appointment to a child born out of second marriage couldn't have been denied.

The Petition was accordingly allowed.

Cause Title: Lachhmina Devi & Anr. vs. Union of India & Ors.

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