Suman Saurav vs The State of Bihar and others

Honourable Mr. Justice Navin Sinha, J.—Heard learned counsel for the petitioner and the State. The father of the petitioner died in harness on 2.9.2007. The Superintendent of Police, Madhepura, recommended his case for compassionate appointment on 12.4.2008. The appointment having remained elusive, the petitioner has preferred the writ application.

Learned counsel for the petitioner submits that he is the offspring from the second marriage solemnized by the father while the first wife was still alive. There is no bar for consideration of his claim on that ground specially when there is no other claimant for compassionate appointment. The entire purpose of compassionate appointment is to save the family from destitute and penury. The first wife Most. Kunti Devi has also sworn an affidavit that she had no objection to the petitioner being considered. Virendra Paswan and Satyandra Paswan who are the elder to the petitioner born from the first marriage have also filed an affidavit of no objection to the petitioner being considered. Reliance is placed on a judgment of the Supreme Court in Vidyadhari and Others Vs. Sukhrana Bai and Others, that the petitioner, even as the offspring of the second marriage is entitled to succession to the estate of the deceased. Reliance is further placed on a Bench decision reported in Abshar Ahmad @ Aabshar Ahmad Vs. Bihar State Electricity Board and Others, interpreting Rule 23 of the Bihar Government Servant Conduct Rules, 1976 that the second marriage cannot be an absolute bar to consideration and the principle of deemed approval can be applied to fulfill the purpose of a compassionate appointment.

In Abshar Ahmad (supra) interpreting Rule 23 of the Bihar Government Servant Conduct Rules, 1976 (hereinafter referred to as the ''Rules'') it was held that the concept of compassionate appointment is ingrained in the concept of family. A beneficial interpretation was provided to Rule 23 that in absence of any objection having been raised there shall be deemed approval for the second marriage. The respondents were well aware of the fact as far back as 14.10.2000 when they issued an order No. 17880 apportioning the financial benefits between the two wives. If a benefit arising out of the service rendered by the deceased was available, there is no reason why the second benefit should not be made available also. Though this document is not on record, the Court permitted the counsel for the petitioner to rely upon the same.

It was lastly submitted that despite all issues, it is not in dispute that the petitioner is the offspring of the deceased. If the deceased committed any error in not seeking permission under Rule 23 before remarriage, the petitioner should not be visited with such a serious consequence of debarring him from consideration. A sympathetic view on equity may be taken keeping in mind that the claim is one for compassionate appointment.

Counsel for the State opposing the application submits that if the deceased committed an act contrary to Rule 23, any claim arising out of that violation cannot be a cause of action.

In Abshar Ahmad (supra) a Bench decision holds that compassionate appointment was ingrained in the concept of family if the personal law permitted a second marriage. It encompasses a larger family including the children of the second wife. Once it is decisive that the second wife and the offspring were dependent upon the deceased, there shall be an invocation of a deemed doctrine for approval under Rule 23 giving directions to consider for compassionate appointment.

Rule 23 read as follows:-

Restrictions regarding marriages.- (1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living and

(2) No Government servant, having a spouse living shall enter into, or contract a marriage with any person:

Provided that Government may permit a Government servant to enter into or contact, any such marriage as is referred to in clause (1) or clause (2) if it is satisfied that:-

(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and

(b) there are other grounds for so doing.

The obligation clearly is of the Government servant remarrying during the life time of the first spouse to seek approval. The statutory provision begins with a complete interdict prohibiting him from solemnizing a second marriage. The fact that the proviso visualizes grant of a permission to do so cannot be construed as a deemed approval without any specific application for approval having been made. The proviso cannot control the Section. It was the obligation of the Government servant to first make an application. The manner in which such an application was to be considered is provided for in Sub Clause-2. It may be under the personal law or there may be other grounds for the same. Whether it be a person professing the Hindu faith, the Muslim faith or the Christian faith, it was the obligation of the Government Servant to seek approval even if his personal law so provided. There was no right under Rule 23 to marry without permission merely because it was permissible under the personal law.

The issue of the personal law of the deceased with regard to matrimonial relationship, succession to his estate etc. are a completely different matter pertaining to the private law field. The issue of the personal law has no application in his relationship with the Government under a master servant relationship. The master is empowered in law to lay down the conditions of the relationship. No claim can be founded on equity or sympathy in violation of the conditions imposed by law for this relationship.

If Rule 23 permits grant of approval for a second marriage on specified conditions, the power is of the authority and not of the Court. The Court cannot usurp the statutory power of the authority under the Rule and discharge the duties of the authorities. The most that the Court can do is to remand the matter to the authorities for taking an appropriate decision. There can be no deemed application of a statutory provision unless the authority has first exercised its statutory powers.

The limits of the writ jurisdiction in this regard has been noticed in (2009) 16 SCC 601 (Union of India V. Bilash Chand Jain) as follows:-

It may be mentioned that there is a distinction between "judicial review" and "appellate jurisdiction". The High Court in a writ petition when examining an administrative order is not exercising the appellate power but exercising the power of judicial review which is much narrower than the appellate power. Such judicial review can only be exercised on Wednesbury principles.

It is well settled by a series of decisions of this Court that the High Court cannot itself perform the functions of a statutory authority. Thus in G. Veerappa Pillai v. Raman and Raman Ltd. it was held that the High Court under Article 226 of the Constitution of India cannot direct the Regional Transport Authority to grant bus permits as the grant of the permit is entirely within the discretion of the Regional Transport Authority. Of course, if the Regional Transport Authority rejects the application for grant of permits arbitrarily or illegally, the High Court can set aside the order of the Regional Transport Authority and direct the Regional Transport Authority to pass a fresh order in accordance with law, but the High Court cannot itself order grant of permits, in that case it will be taking over the function of the Regional Transport Authority.

If the contention on behalf of the petitioner is taken to its logical conclusion, what emerges is that the deceased violated the conditions of his service when he remarried during the life time of the first spouse without requisite approval under Rule 23. The fact that he committed a misconduct shall become a wholly irrelevant issue today and a claim for compassionate appointment must be upheld though its root are to be found in a misconduct violating Rule 23.

Compassionate appointment is a weak right in teeth of Article 14 of the Constitution. To found a cause of action for such a weak right in illegality is an interpretation which the Court finds difficult to give. The reliance on the office order dated 14.10.2000 apportioning the financial benefits between the two wives relates to the private law field and has no relevance or application presently.

There is no dispute of the fact that the deceased solemnized a second marriage without permission under Rule 23 of the Conduct Rules and that it was therefore a misconduct. That departmental proceedings may not have been held shall not erase the misconduct. A claim for compassionate appointment was thus not available to the heirs of a Government servant who misconducted himself in service was held in General Manager, State Bank of India and Others Vs. Anju Jain, as follows:-

Compassionate appointment is really a concession in favour of dependants of a deceased employee. If during his career, he had committed illegalities and the misconduct is proved and he is punished, obviously his dependants cannot claim right to the employment. With respect, the learned Single Judge was wholly wrong in observing that such an action would be violative of the principles of natural justice.

To us, the observation of the learned Single Judge that "no past acts of misconduct of the employee who dies in harness can be taken into account while considering the case of a family member for employment on compassionate ground" is not in consonance with law. Past conduct of an employee is undoubtedly an important consideration. We are also of the view that State Bank was right in rejecting the prayer of the wife of the deceased employee vide its letter dated 29-1-2001 observing therein that "unblemished service record is implicit.

In State of Bihar Vs. Shri K.M. Zuberi and others, claims were made under the personal law to units in a Land Ceiling Proceeding. The conclusion was that the personal law had no application and the claims had to be considered in accordance with the statutory provisions irrespective of whether the person claiming professed the Hindu faith, Muslim or Christian faith.

Judicial discipline requires the judgment in Abshar Ahmed (supra) to be followed or else the matter has to be referred to the Division Bench. The Court considers it proper in light of the present discussion to refer the matter to a Division Bench so that the issue attains finality both with regard to the litigant and the respondents and the position in law is enunciated clearly.

Let the petitioner file one more set of the writ application within a period of one week failing which this application shall stand dismissed without further reference to a Bench. The records may be placed before the Hon''ble the Chief Justice for appropriate orders.