Hon'ble Dinesh Gupta,J.
(Delivered by Hon'ble Yatindra Singh, J.)
1. The main question involved in this appeal revolves around exercise of writ jurisdiction. The question is, should we, in exercise of our writ jurisdiction, direct the authorities to consider a claim for compassionate appointment of a dependent of a deceased employee, who had married for the second time during the life time of his first wife or decline the same.
THE FACTS
2. One Satai (the Deceased) was the Petrol Man in the UP Power Corporation (the Corporation). Smt. Satina Devi was his wife. He did not have any children from her. He filed an application to grant him permission to marry again.
3. The Executive Engineer by the order dated 24.10.1978 granted permission to the Deceased to marry again. This was on the basis of agreement between the Deceased and Satina Devi as well as on the medical report that they cannot have any children. There was a caveat in the permission that in case any child was born from the first wife then his relation with the second wife would come to an end.
4. The Deceased married Kaushalya Devi on 30.12.1980. Sri Ramesh Chand (the Appellant) was born from this second marriage.
5. The Deceased died in harness on 19.11.2000. There is said to be an agreement between the two widows by which the first wife Satina Devi was entitled to receive the post retiral benefits and the Appellant was entitled for compassionate appointment.
6. On the basis of the aforesaid agreement, the Appellant filed an application on 4.10.2002 for compassionate appointment under उत्तर प्रदेश राज्य विद्युत परिषद सेवा काल में मृत परिषदीय सेवकों के आश्रितों की भर्ती नियमावली १९७५ (Uttar Pradesh Rajya Vidyut Parishad Sewakal Men Mrit Parishadiya Sewako Ke Ashrito Ki Bharti Niyamawali, 1975) (the Dying-in-harness Rules).
7. On the receipt of the application, the the Executive Engineer, on behalf of the General Manager, wrote a letter dated 28.11.2002 to the headquarters. In the letter, it was mentioned that Satina Devi had agreed that the Deceased may marry for the second marriage to continue the family lineage and after death of the Deceased it was agreed that:
Satina Devi would get the post retirement benefits; and The Appellant could apply for compassionate appointment for which Satina Devi would not have any objection.
In the light of the aforesaid facts, the guidelines were asked for, whether the Appellant could be considered for compassionate appointment.
8. The headquarters sent its advice on 25.05.2003, opining that the children from the second marriage cannot be granted legitimacy on the basis of the agreement between the parties. It can only be done after the competent court gives a decision in this regard. The general manager was advised to do needful in the matter.
9. It appears that no formal order rejecting the application was passed but the Appellant filed Writ Petition No.10736 of 2003 for quashing the letter dated 25.5.2003 and for a direction to consider his application on merits.
10. This writ petition was dismissed by the single Judge on 15.10.2003 on the finding that:
Section 16(3) of the Hindu Marriage Act, 1956 provides inheritance to the children from the void marriages over the property of their parents. However, the right for compassionate appointment is not a right to property of the Deceased;
The children from such marriages cannot defeat the rights of the other persons namely the legally married wife and her children to the property, such as retiral benefits and pension of the Deceased: such other persons are entitled for the same.
The agreement is a void document.
Hence, the present appeal.
POINTS FOR DETERMINATION
11. We have heard Sri VP Shukla, counsel for the Appellant and Sri Nripendra Mishra, counsel for the Corporation. The following points arise for determination in the appeal:
(i)Whether the permission, granted by the Executive Engineer to marry second time during lifetime of the first wife was legal;
(ii)Whether the Appellant is a legitimate son;
(iii)Whether the Appellant is entitled to all rights like a son born out of valid marriage;
(iv)In the circumstances of the case, should the court exercise its jurisdiction under article 226 of the Constitution?
Ist POINT: PERMISSION WAS INVALID
12. The UP State Electricity Board (the Board) was predecessor-in-interest of the Corporation. The Board had adopted UP Government Servant Conduct Rules, 1956 (the UP-Conduct Rules) in its meeting dated 26.12.1963. These were applicable in the present case.
13. The counsel for the Appellant pointed out Rule 29 (see below)1 of the UP-Conduct Rules and submitted that:
The petitioner had sought permission for the second marriage;
The permission was granted on 24.10.1978 by his appointing authority;
It was granted as the Deceased had no children from the first wife and it was to continue the family lineage;
This arrangement of second marriage was with consent by the first wife;
The approval was validly granted.
14. Rule 29 of the UP-Conduct Rules contemplates permission to be granted by the Government. The word government is also defined in rule 2(a) of the UP-Conduct Rules to mean Government of Uttar Pradesh.
15. The Executive Engineer might be appointing authority of the Deceased but he was not Government of Uttar Pradesh. The permission by the Executive Engineer had no meaning. Apart from this, there is another reason that the permission was invalid.
16. Rule 29 may be compared with similar rule 21 (see below)2 of the Central Civil Service (Conduct) Rules 1964 (the Central-Conduct Rules) applicable to the Central Government Employees. Proviso to sub rule (2) of rule 21 of the Central-Conduct Rules provides that permission for second marriage can only be granted to a government servant, if the couple belong to a faith where second marriage is permissible and it can only be for a valid reason. This is not so clear in rule 29 of the UP-Conduct Rules but result is the same.
17. Section 5 of the Hindu Marriage Act is titled 'Conditions for a Hindu Marriage'. The first condition {Section 5(i) of the Hindu Marriage Act} for valid marriage is that neither party should have spouse living at the time of marriage.
18. Section 11 of the Hindu Marriage Act is titled 'Void marriage'. Apart from other reasons, a marriage is void if it contravenes section 5(i) of the Hindu Marriage Act.
19. The UP-Conduct Rules are merely rules and are subordinate to any statute validly enacted. Rules 29 is subject to the Hindu Marriage Act. It does not envisage a case of grant of permission to Hindu to marry for the second time during life time of the first spouse as it would be contrary to section 5(i) read with section 11 of the Hindu Marriage Act. In case, it empowers the government to grant such permission, then it would contravene these sections of the Hindu Marriage Act. The scope of rule 29(1) of the UP Conduct Rules is limited to the persons belonging to the faith, where personal law permits second marriage during life time of their first spouse.
20. The Deceased was a Hindu. No such permission could be granted under rule 29(1) of the Conduct Rules.
21. In our opinion, The permission under rule 29 of the UP-Conduct Rules can only be granted to the persons where under personal law they could marry again during life time of their first spouse;
The Executive Engineer had no right to grant permission. It was only the government that would grant such permission;
The permission granted to the Deceased was invalid.
2nd & 3rd POINT: APPELLANT ENTITLED TO ALL RIGHT-- EXCEPT THOSE PROHIBITED
22. Section 11 of the Hindu Marriage Act read with section 5(i) declares second marriage during lifetime of first spouse to be invalid. However, section 16 grants legitimacy to the children, who were earlier not considered to be legitimate:
Sub-section (1) of section 16 {Section 16(1)} of the Hindu Marriage Act declares that the children born out of void marriages under section 11 to be legitimate;
Sub section (2) of section 16 {section 16(2)} of the Hindu Marriage Act grants a similar legitimacy to the children born out of voidable marriage under section 12 of the Hindu Marriage Act.
23. The logical conclusion to the grant of legitimacy to such children is that there is no difference between them and children born out of valid marriages: they have same rights as the children born out of valid marriages unless there is any specified exception3.
24. The Hindu Marriage Act provides one exception. It is mentioned in sub-section (3) of section 16 {Section 16(3)} of the Hindu Marriage Act.
25. Section 16(3) of the Hindu Marriage Act provides that nothing contained in sections 16(1) and 16(2) will construe as conferring any right upon such children to the property other than of their parents. Apart from section 16(3), there is no other restriction to the rights available to such children.
26. In our opinion:
Section 16(3) is an exception rather than extent of the rights under section 16(1) and 16(2) of the Hindu Marriage Act;
The Appellant was the legitimate child under section 16(1) of the Hindu Marriage Act;
He was entitled to all rights as a son, who might have been born out of valid marriage except in regard to inheriting the property in question other than of his parent.
27. The natural consequences of the aforesaid conclusions is that the Appellant would be covered within the definition of the word 'family' under rule 2(ga)4 of the Dying-in-Harness Rules and would be entitled to have his application considered on merit under rule 55 of the Dying-in-Harness Rules.
28. The Corporation has not considered the case on merits. The question is, should we enforce this right under article 226 of the Constitution of India; is it a fit case for exercise of writ jurisdiction.
4th POINT: NOT A FIT CASE TO EXERCISE WRIT JURISDICTION
29. Article 226 of the Constitution of India empowers the High Courts to issue directions, orders or writs including writs in the nature habeas corpus, mandamus, prohibition, quo warranto and certiorari or any one of them for enforcement of the fundamental rights or for any other purpose. The writs can be issued throughout the territory over which the High Court exercises its jurisdiction and they could be issued to any government, person, or authority.
30. The fundamental rights are contained under chapter III of the Constitution. They guarantee rights to the persons mentioned therein. Apart from Chapter III, rights are also conferred by other provisions of the Constitution (if those provisions are enforceable) as well as by statues, rules, and regulations framed by the competent bodies. Article 226 is a forum for enforcement of these rights.
31. Shri MC Seatalvad, the first Attorney General of India, gave 12th Hamlyn Law lecture series in October 1960. It is titled 'The Common Law in India'. These lectures trace the history of Common Law in India upto enforcement of Constitution of India. On page 207 of book, he explains:
'The Constitution of 1950 has in this matter taken a notable step forward. Having included a Bill of Rights in the Constitution the Constitution-makers had necessarily to provide remedies for the enforcement of these rights. They also envisaged a welfare state with its inevitable accompaniment of a mass of parliamentary and subordinate legislation which would involve constant interference with the normal activities of the citizen. It was, therefore, essential to provide procedures and remedies which would enable the citizen to approach the courts and obtain speedy and effective redress against interference with his fundamental rights or an unconstitutional enactment or unwarranted administrative action. These remedies are to be found in article 226 and article 32 of the Constitution.'
32. There are no limitations under article 226 of the Constitution of India. However, the courts themselves have imposed restrictions on exercise of their power. One of such restriction, has been succinctly explained in DD Basu's Shorter Constitution of India 14th edition Reprint Volume 2 at page 1189 as follows:
' The High court, while exercising extraordinary jurisdiction under Article 226 of the Constitution may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court may refuse to extend the benefit of a discretionary relief to the applicant. Issuance of a writ of certiorari is a discretionary remedy. The jurisdiction of the High court under Article 226 of the Constitution is discretionary and equitable.' Let's see, if this is a fit case for exercising of our writ jurisdiction.
33. The Deceased was not entitled to marry for second time during life time of his first wife. The second marriage was not only void under section 11 of the Hindu Marriage Act, but was also punishable under section 17 of the Hindu Marriage Act read with section 494 and 495 of the IPC. It is correct that neither any criminal prosecution was launched against the Deceased nor any departmental proceeding was initiated against him and now no such proceeding can be taken: the result is that the post retiral benefits cannot be denied to the Deceased (or his heirs) on the ground that he had committed an offence or misconduct.
34. Nevertheless, the birth of the Appellant is founded on the conduct of aforesaid marriage; a direction to the authorities to consider the Appellant's application on merit, would be granting recognition to the conduct that was not permissible under the law. We do not think that such a course should be adopted, it is not a fit case for exercising discretionary jurisdiction under article 226 of the Constitution of India.
THE RECOMMENDATIONS AND SUGGESTIONS
35. The Board had adopted UP Conduct Rules; its rule 29 deals with bigamous marriage. The Corporation, the successor-in-interest of the Board, has framed its own rules known as UP Vidyut Parisahd Parichalkeey Karmchari Varg Seva Niyamwali, 1995 (the Corporation-Conduct Rules). Such marriage are dealt under rule 25.19 of the Corporation-Conduct Rules6. It is departure from Rule 29 of the UP-Conduct Rules that were adopted by the Board. It bars second marriage by a person who already has a living spouse. However, rule 29 of the UP-Conduct Rules still continues and is applicable to government servants in UP.
36. We have clarified that under rule 29 of the UP Conduct Rules permission can not be granted in those cases where personal law, applicable to that person, does not permit him to marry during life-time of his spouse. Now, such a situation may not arise in case of the Corporation but it may arise for the employees of the State of UP. In such a situation the government will do well to decline to consider the case on merits.
37. Monogamy is the rule of all civilised societies. The Corporation has taken a step forward in this regard. It has rightly prohibited second marriage during life time of the first spouse amongst its employees. It is a commendable step. We also recommend to the State to amend rule 29 of the UP-Conduct Rules and prohibit marriage during life time of the first spouse. Such a course may be adopted by all Corporations, authorities, bodies under the State.
CONCLUSION
38. Our conclusions are as follows:
(a)The permission granted to the Deceased for second marriage was invalid;
(b)The Appellant is a legitimate son of the Deceased and is entitled to all rights except those that are prohibited under section 16(3) of the Hindu Marriage Act;
(c)It is not a fit case for exercise of our writ jurisdiction under article 226 of the Constitution.
39. In view of our conclusion and reasons mentioned in the judgment (some of them are different than those of the single Judge), we decline to issue any writ, order, or direction to quash the advise dated 25.5.2003 or to direct the authorities to consider the application of the Appellant under the Dying-in-Harness Rules on merits. The appeal is dismissed.
Dated: 15.11.2011 BBL