# Kumari Manisha v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 639
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-17
- **Case number:** Writ -A No. 34221 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumari-manisha-v-state-of-u-p-ors-51302
- **Pages:** 8

## Headnote

A. Service Law - UP Recruitment of
Dependants
of
Government
Servants
Dying in Harness Rules, 1974 - Rule 7 -
Compassionate appointment - Applicant,
claiming the appointment, was born out of
the
deceased's
second
marriage
-
Entitlement of children of void marriage to
get compassionate appointment - Held,
denial of opportunity to a consideration
for compassionate appointment to a
child born of a second marriage to a
deceased employee contracted during
the lifetime of the first wife was
discriminatory - Mukesh Kumar' case
relied
upon
-
It
is
idle
for
the
respondents
to
contend
that
the
petitioner has no valid candidature to
assert for compassionate appointment
under the Rules of 1974. (Para 11 and
12)

B. Constitution of India - Article 14 -
Right
to
equality
-
Classification
between children of void marriage and
children
of
valid
marriage
-
Permissibility - Held, children, born
whether of a void marriage, once
legitimate, were held equally entitled
to a consideration for compassionate
appointment as children born of a
valid marriage - V. R. Tripathi's case
relied upon. (Para 10)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

12 All. Kumari Manisha Vs. State of U.P. & Ors.
639
convened within a period of two
months next of the receipt of a certified
copy of this order, with a declaration of the
result to follow within a week, and subject
to the outcome of their recommendations,
the petitioner entitled to seniority, if
promoted to the next higher cadre with
effect from the date that juniors to him have
been promoted. No financial benefits, of
course, would accrue to the petitioner prior
to the time that he is actually promoted to
the next higher cadre.

47. So far as Writ-A No.2255 of
2024 is concerned, the same is consigned to
record.

48. There shall be no order as to
costs.
----------
(2024) 12 ILRA 639
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ -A No. 34221 of 2017

Kumari Manisha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shiv Raj Singh, Shri Ram Pandey, Sunil Kumar,
Sunil Kumar I

Counsel for the Respondents:
C.S.C., Jitendra Shanker Pandey

A. Service Law - UP Recruitment of
Dependants
of
Government
Servants
Dying in Harness Rules, 1974 - Rule 7 -
Compassionate appointment - Applicant,
claiming the appointment, was born out of
the
deceased's
second
marriage
-
Entitlement of children of void marriage to
get compassionate appointment - Held,
denial of opportunity to a consideration
for compassionate appointment to a
child born of a second marriage to a
deceased employee contracted during
the lifetime of the first wife was
discriminatory - Mukesh Kumar' case
relied
upon
-
It
is
idle
for
the
respondents
to
contend
that
the
petitioner has no valid candidature to
assert for compassionate appointment
under the Rules of 1974. (Para 11 and
12)

B. Constitution of India - Article 14 -
Right
to
equality
-
Classification
between children of void marriage and
children
of
valid
marriage
-
Permissibility - Held, children, born
whether of a void marriage, once
legitimate, were held equally entitled
to a consideration for compassionate
appointment as children born of a
valid marriage - V. R. Tripathi's case
relied upon. (Para 10)

Writ petition allowed. (E-1)

List of Cases cited:

1. Ramesh Chandra Verma Vs U.P. Power
Corporation Ltd. & ors.; (2013) 3 UPLBEC 2198

2. Ramesh Chand Vs Executive Engineer & ors.;
2012 (1) ADJ 143 (DB)

3. Rameshwari Devi Vs St. of Bihar & ors.;
(2000) 2 SCC 431

4. Rakesh Kumar Pandey Vs St. of U.P.; 2006
SCC OnLine All 469

5. U.O.I.& anr. Vs V.R. Tripathi; (2019) 14 SCC
646

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order of the Superintendent of
Police, Maharajganj dated 02.07.2017,
640 INDIAN LAW REPORTS ALLAHABAD SERIES
rejecting
the
petitioner's
claim
for
compassionate appointment.

2. The petitioner, Kumari Manisha,
is the daughter of the late Virendra Prasad,
a Constable in the Government Railway
Police. He died in harness on 26.08.2013,
after an illness. The late Virendra Prasad
had two wives. Smt. Dulari Devi, he had
married first, born of whom were two sons,
Umesh Kumar, Rakesh Kumar and four
daughters, Km. Sarita, Km. Suman, Km.
Punam and Km. Renu. He married a second
time Smt. Saraswati Devi, of whom were
born three daughters, to wit, Km. Manisha
(the petitioner), Km. Isha and Km. Nisha.
The petitioner says that the late Virendra
Prasad had solemnized his marriage with
Smt. Saraswati Devi, with the consent of
his first wife as well as the other family
members. Therefore, both wives are said to
hold equal rights upon their husband's
estate, retirement benefits and privileges.
Both the wives and their children were
living with the late Virendra Prasad, being
on good terms until Virendra Prasad's
demise. After Virendra Prasad's death,
according to the petitioner, the family
pension as well as other allowances were
credited in the name of Smt. Dulari Devi.
By consent of Smt. Saraswati Devi, the
petitioner's mother, an agreement was
penned, in terms whereof the pension and
other allowances would be distributed
equally between both wives of the
deceased. The said agreement was inked on
01.03.2014.

3. The petitioner says that the
deceased's elder son, Umesh Kumar, born
of Smt. Dulari Devi, is 38 years old, well
settled in his business and lives in his
parental house happily along with his
family. The other son, born of Smt. Dulari
Devi, Rakesh Kumar, is also well settled in
a government service. He is a junior
engineer. All daughters, born of the
deceased's marriage with Smt. Dulari Devi,
to wit, Smt. Sarita, Smt. Suman, Smt.
Punam and Smt. Renu, are all well settled
in their matrimonial homes and living
happily. The petitioner also says that there
was a division of funds paid to Smt. Dulari
Devi
towards
death-cum-retirement
benefits between the two wives of Virendra
Prasad, contrary to the contract agreed
upon and reduced to writing on 01.03.2014.
It is said that the post retiral funds were not
equally divided nor was the monthly
pension. This may not be much in issue
because this cause is about the petitioner's
right to compassionate appointment on
account of her father's demise in harness.
The only thing relevant that concerns the
distribution of funds is that the deceased's
family comprising his second wife and
daughters did not receive any substantial
benefit. According to the petitioner, as far
as the death-cum-retirement benefits are
concerned, all those were substantially
retained by the deceased's first wife, Smt.
Duari Devi, who was paid these funds by
the respondents.

4. The petitioner says that she has
no source of income and is very poor. She
is suffering in life due to lack of education
and livelihood, as are other members of the
family. The petitioner made an application,
seeking compassionate appointment under
the
Uttar
Pradesh
Recruitment
of
Dependants of Government Servants Dying
in Harness Rules, 1974 (for short, 'the
Rules of 1974') before the Superintendent
of Police, Maharajganj on 25.09.2013. It is
said, on the other hand, that the deceased's
son Rakesh Kumar, who too has staked
claim for compassionate appointment, is
well settled in life, as are his brother and
the four sisters, all of whom are happily
12 All. Kumari Manisha Vs. State of U.P. & Ors.
641
married. The petitioner pursued her claim
with diligence, but nothing came out of it.
She moved Writ-A No.12217 of 2015
before this Court, which was disposed of
with a direction to the Superintendent of
Police, Maharajganj to consider and decide
the petitioner's claim preferably within a
period of four months from the date of
production of a certified copy of the order
passed in the aforesaid writ petition, after
putting the other private respondents to
notice.

5. It is in consequence of the
aforesaid direction that the petitioner's
claim for compassionate appointment came
to be rejected by the impugned order dated
02.07.2017.

6. Aggrieved, this writ petition has
been instituted.

7. A notice of motion was issued
on 08.08.2017. In compliance, a counter
affidavit has been filed on behalf of
respondent No.2 on 06.11.2017 and another
on
behalf
of
respondent
No.3
on
18.04.2018. Two rejoinders have also been
filed.

8. Heard Mr. Sunil Kumar, learned
Counsel for the petitioner, Mr. Jitendra
Shanker Pandey, learned Counsel on behalf
of respondent No.3 and Mr. Girijesh Kumar
Tripathi, learned Additional Chief Standing
Counsel on behalf of respondent Nos. 1 and
2.

9. A perusal of the impugned order
shows that in essence the Superintendent of
Police has held that the deceased's second
marriage to Smt. Saraswati Devi, the
petitioner's mother, was void under the
Hindu Marriage Act, 1955, the deceased's
first wife, Smt. Dulari Devi, being alive at
that time. The Superintendent of Police,
Maharajganj has relied upon the authorities
of this Court in Ramesh Chandra Verma
v. U.P. Power Corporation Ltd. and
others, (2013) 3 UPLBEC 2198 and
Ramesh Chand v. Executive Engineer
and others, 2012 (1) ADJ 143 (DB). It is
then remarked that the deceased's act in
marrying a second time during the
subsistence of a valid marriage and his
spouse being alive, violates Rule 29 of the
Uttar
Pradesh
Government
Servants
Conduct Rules, 1956, all of which would
render the marriage void. Reliance has also
been placed upon the decision of the
Supreme Court in Rameshwari Devi v.
State of Bihar and others, (2000) 2 SCC
431 and Rakesh Kumar Pandey v. State
of U.P., 2006 SCC OnLine All 469. It is
concluded in the order impugned that since
the petitioner was born of the deceased's
second marriage to Smt. Saraswati Devi
during the lifetime of his first wife, Smt.
Dulari Devi, the petitioner is not entitled to
be
considered
for
compassionate
appointment.

10. Now, the reasoning in the
impugned order primarily proceeds on
principle that children born of a void
marriage, though legitimate, have a right in
the property of their parents, but that would
not extend to compassionate appointment
as that is not a right to property of the
deceased parent, to wit, Virendra Prasad. It
is true that a limited right has been given to
children born of void marriages and a
marriage solemnized by a Hindu during the
lifetime of his wife, without the marriage
being annulled or dissolved in accordance
with law, would be void. The limited right
under Section 16(3) of the Hindu Marriage
Act, 1955 is the right to inheritance of
property belonging to the parents. If this
reasoning were extended, a right to public
642 INDIAN LAW REPORTS ALLAHABAD SERIES
employment,
like
compassionate
appointment, may well be found not to
extend to children of a void marriage,
going by a narrow and literal interpretation
of the Rules of 1974, in particular, the
definition of 'family'. Nevertheless, tested
on the anvil of Article 14 of the
Constitution,
their
Lordships
of
the
Supreme Court in Union of India and
another v. V.R. Tripathi, (2019) 14 SCC
646 found it difficult to uphold this
classification between children as valid and
held it to be violative of Article 14.
Children, born whether of a void marriage,
once legitimate, were held equally entitled
to a consideration for compassionate
appointment as children born of a valid
marriage. The facts in V.R. Tripathi (supra)
would show that the deceased was an
employee of the Central Railways posted at
Mumbai, who died in harness. He had
contracted a second marriage during the
subsistence of the first. A son born of the
second marriage to the deceased employee
had
staked
claim
for
compassionate
appointment that was rejected by the
Railways. This was done on the strength of
a circular, which said that in cases of
employees marrying a second time during
the lifetime of the first wife, while
retirement-cum-death benefits could be
shared by both widows due to Court orders,
or otherwise on the merits of a particular
case,
appointment
on
compassionate
ground to the second widow or her children
would not be considered unless the
Railway Administration had permitted the
second marriage in special circumstances,
taking into account the personal law etc.
The Central Administrative Tribunal, which
was moved by the deceased employee's
son, held in favour of his right to a
consideration
for
compassionate
appointment and the Railways' writ petition
carried to the Bombay High Court was
dismissed. Affirming the orders of the High
Court, it was held in V.R. Tripathi:

"15. In sub-section (1) of
Section 16, the legislature has
stipulated that a child born from a
marriage which is null and void
under Section 11 is legitimate,
regardless of whether the birth has
taken place before or after the
commencement of amending Act
68 of 1976. Legitimacy of a child
born from a marriage which is null
and void, is a matter of public
policy so as to protect a child born
from
such
a
marriage
from
suffering
the
consequences
of
illegitimacy. Hence, though the
marriage may be null and void, a
child who is born from the
marriage is nonetheless treated as
legitimate by sub-section (1) of
Section 16. One of the grounds on
which a marriage is null and void
under Section 11 read with clause
(i) of Section 5 is that the marriage
has been contracted when one of
the parties had a spouse living at
the time of marriage. A second
marriage contracted by a Hindu
during the subsistence of the first
marriage is, therefore, null and
void. However, the legislature has
stepped in by enacting Section
16(1) to protect the legitimacy of a
child born from such a marriage.
Sub-section (3) of Section 16,
however, stipulates that such a
child who is born from a marriage
which is null and void, will have a
right in the property only of the
parents and none other than the
parents.
16. The issue essentially is
whether it is open to an employer,
12 All. Kumari Manisha Vs. State of U.P. & Ors.
643
who is amenable to Part III of the
Constitution to deny the benefit of
compassionate appointment which
is available to other legitimate
children.
Undoubtedly,
while
designing
a
policy
of
compassionate appointment, the
State can prescribe the terms on
which it can be granted. However,
it is not open to the State, while
making the scheme or rules, to lay
down
a
condition
which
is
inconsistent with Article 14 of the
Constitution.
The
purpose
of
compassionate appointment is to
prevent destitution and penury in
the family of a deceased employee.
The effect of the circular is that
irrespective of the destitution which
a child born from a second
marriage of a deceased employee
may
face,
compassionate
appointment is to be refused unless
the second marriage was contracted
with
the
permission
of
the
administration. Once Section 16 of
the Hindu Marriage Act, 1955
regards a child born from a
marriage entered into while the
earlier marriage is subsisting to be
legitimate, it would not be open to
the State, consistent with Article 14
to exclude such a child from
seeking
the
benefit
of
compassionate appointment. Such a
condition of exclusion is arbitrary
and ultra vires.
17. Even if the narrow
classification test is adopted, the
circular of the Railway Board
creates two categories between one
class
of
legitimate
children.
Though the law has regarded a
child born from a second marriage
as legitimate, a child born from the
first
marriage
of
a
deceased
employee is alone made entitled to
the
benefit
of
compassionate
appointment. The salutary purpose
underlying
the
grant
of
compassionate appointment, which
is to prevent destitution and penury
in the family of a deceased
employee
requires
that
any
stipulation or condition which is
imposed must have or bear a
reasonable nexus to the object
which is sought to be achieved. The
learned
Additional
Solicitor
General has urged that it is open to
the State, as part of its policy of
discouraging bigamy to restrict the
benefit
of
compassionate
appointment, only to the spouse
and children of the first marriage
and to deny it to the spouse of a
subsequent
marriage
and
the
children. We are here concerned
with the exclusion of children born
from
a
second
marriage.
By
excluding a class of beneficiaries
who have been deemed legitimate
by the operation of law, the
condition
imposed
is
disproportionate
to
the
object
sought to be achieved. Having
regard to the purpose and object of
a
scheme
of
compassionate
appointment, once the law has
treated such children as legitimate,
it would be impermissible to
exclude
them
from
being
considered
for
compassionate
appointment.
Children
do
not
choose their parents. To deny
compassionate appointment though
the law treats a child of a void
marriage as legitimate is deeply
offensive to their dignity and is
644 INDIAN LAW REPORTS ALLAHABAD SERIES
offensive
to
the
constitutional
guarantee against discrimination."

11. The question once again arose
in Mukesh Kumar and another v. Union
of India and others, (2022) 14 SCC 161 in
the context of the Railway Board Circular,
saying that compassionate appointment
cannot be granted to children born of a
second wife to a deceased employee. In
Mukesh Kumar (supra), a three Judge
Bench of the Supreme Court examined the
issue holding that denial of opportunity to a
consideration
for
compassionate
appointment to a child born of a second
marriage
to
a
deceased
employee
contracted during the lifetime of the first
wife was discriminatory. Mukesh Kumar
too was a case where the deceased
employee had married again during the
lifetime of his first wife. In Mukesh
Kumar, it was held:

"7. This Court in V.R.
Tripathi [Union of India v. V.R.
Tripathi, (2019) 14 SCC 646 :
(2020) 1 SCC (Civ) 768 : (2020) 2
SCC (L&S) 301] held that the
scheme
and
the
rules
of
compassionate appointment cannot
violate the mandate of Article 14 of
the Constitution. Once Section 16
of the Hindu Marriage Act regards
a child born from a marriage
entered into while the earlier
marriage
is
subsisting
to
be
legitimate, it would violate Article
14 if the policy or rule excludes
such a child from seeking the
benefit
of
compassionate
appointment. The circular creates
two categories between one class,
and it has no nexus to the objects
sought to be achieved. Once the
law has deemed them legitimate, it
would be impermissible to exclude
them from being considered under
the policy. Exclusion of one class
of legitimate children would fail to
meet the test of nexus with the
object, and it would defeat the
purpose of ensuring the dignity of
the
family
of
the
deceased
employee. This judgment in V.R.
Tripathi [Union of India v. V.R.
Tripathi, (2019) 14 SCC 646 :
(2020) 1 SCC (Civ) 768 : (2020) 2
SCC (L&S) 301] has now been
followed by a number of High
Courts as well [ See K. Santhosha
v. Karnataka Power Transmission
Corpn. Ltd., 2021 SCC OnLine Kar
12989 : (2022) 1 Kant LJ 154
(decided on 24-6-2021 by the High
Court of Karnataka); Yuvraj Dajee
Khadake v. Union of India, 2019
SCC OnLine Bom 299 (decided on
21-2-2019 by the High Court of
Bombay); Union of India v. Rohit
Chand, 2020 SCC OnLine Del 157
(decided on 24-1-2020 by the High
Court of Delhi).] .
8.
Apart
from
the
discrimination
ensuing
from
treating equals unequally, which is
writ large as demonstrated in the
judgment of this Court referred to
above, there is also discrimination
on the ground of descent, which is
expressly prohibited under Article
16(2). In V. Sivamurthy v. State of
A.P. [V. Sivamurthy v. State of A.P.,
(2008) 13 SCC 730 : (2009) 1 SCC
(L&S) 335 : (SCC pp. 741-42, para
18)"18*. The principles relating to
compassionate appointments may
be
summarised
thus;(a)
Compassionate appointment based
only on descent is impermissible.
Appointments in public service
12 All. Kumari Manisha Vs. State of U.P. & Ors.
645
should be made strictly on the basis
of open invitation of applications
and comparative merit, having
regard to Articles 14 and 16 of the
Constitution of India. Though no
other mode of appointment is
permissible,
appointments
on
compassionate grounds are a wellrecognised exception to the said
general rule, carved out in the
interest of justice to meet certain
contingencies.(b)
Two
wellrecognised contingencies which are
carved out as exceptions to the
general rule are:(i) appointment on
compassionate grounds to meet the
sudden crisis occurring in a family
on account of the death of the
breadwinner while in service.(ii)
appointment
on
compassionate
ground to meet the crisis in a
family on account of medical
invalidation of the breadwinner.
Another contingency, though less
recognised, is where landholders
lose their entire land for a public
project, the scheme provides for
compassionate
appointment
to
members of the families of projectaffected
persons.
(Particularly
where the law under which the
acquisition is made does not
provide for market value and
solatium,
as
compensation.)(c)
Compassionate appointment can
neither be claimed, nor be granted,
unless the rules governing the
service permit such appointments.
Such appointments shall be strictly
in accordance with the scheme
governing such appointments and
against
existing
vacancies.(d)
Compassionate appointments are
permissible only in the case of a
dependent member of the family of
the employee concerned, that is,
spouse, son or daughter and not
other relatives. Such appointments
should be only to posts in the lower
category, that is, Classes III and IV
posts and the crises cannot be
permitted to be converted into a
boon by seeking employment in
Class I or II posts."*Ed. : Para 18
corrected
vide
Official
Corrigendum
No.
F.3/Ed.B.J./92/2008 dated 10-112008.] , this Court observed that
appointments made only on the
basis of descent is impermissible.
However,
compassionate
appointments are a well-recognised
exception to the general rule if they
are carved out in the interest of
justice to meet public policy
considerations [Director General of
Posts v. K. Chandrashekar Rao,
(2013) 3 SCC 310, para 18 : (2013)
1
SCC
(L&S)
596.
Further,
constitutionality of compassionate
appointments was upheld in State
of Haryana v. Ankur Gupta, (2003)
7 SCC 704, para 6 : 2003 SCC
(L&S) 1165; Yogender Pal Singh v.
Union of India, (1987) 1 SCC 631,
para 17.] . It lends justification only
that far and no further.
9. While
compassionate
appointment is an exception to the
constitutional
guarantee
under
Article
16,
a
policy
for
compassionate appointment must
be consistent with the mandate of
Articles 14 and 16. That is to say, a
policy
for
compassionate
appointment, which has the force of
law, must not discriminate on any
of the grounds mentioned in Article
16(2), including that of descent. In
this regard, "descent" must be
646 INDIAN LAW REPORTS ALLAHABAD SERIES
understood
to
encompass
the
familial origins of a person [ See,
Gazula Dasaratha Rama Rao v.
State of A.P., 1960 SCC OnLine SC
39 : (1961) 2 SCR 931 : AIR 1961
SC 564] . Familial origins include
the validity of the marriage of the
parents
of
a
claimant
of
compassionate appointment and the
claimant's legitimacy as their child.
The policy cannot discriminate
against a person only on the ground
of descent by classifying children
of the deceased employee as
legitimate and illegitimate and
recognising only the right of
legitimate descendant. Apart from
the fact that strict scrutiny would
reveal that the classification is
suspect, as demonstrated by this
Court in V.R. Tripathi [Union of
India v. V.R. Tripathi, (2019) 14
SCC 646 : (2020) 1 SCC (Civ) 768
: (2020) 2 SCC (L&S) 301] , it will
instantly
fall
foul
of
the
constitutional
prohibition
of
discrimination on the ground of
descent. Such a policy is violative
of Article 16(2)."

12. This then being the position of
the law, it is idle for the respondents to
contend that the petitioner has no valid
candidature to assert for compassionate
appointment under the Rules of 1974.
Therefore, in the present case, the Head of the
Department or office faced with the rival
claims of the petitioner and respondent No.3
has to regard both claims as maintainable and
then judge the suitability for appointment on
merits in accordance with Rule 7 of the Rules
of 1974.

13. In the result, this petition
succeeds and is allowed. The impugned
order dated 02.07.2017 passed by the
Superintendent of Police, Maharajganj is
hereby quashed. A mandamus is issued to
the Superintendent of Police, Maharajganj,
ordering him to consider both claims, that
is to say, the petitioner's and that of
respondent
No.3,
to
compassionate
appointment in accordance with Rule 7 of
the Rules of 1974, within eight weeks of
receipt of a copy of this judgment. The
interim order dated 05.07.2024 is hereby
vacated.

14. There shall be no order as to
costs.

15. Let a copy of this judgment be
communicated to the Superintendent of
Police, Maharajganj by the Registrar
(Compliance).
----------
(2024) 12 ILRA 646
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Writ -C No. 9124 of 2024

Bhagwan Deen ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Mateen, Vikas Pandey

Counsel for the Respondents:
C.S.C.

A. Civil Law-Constitution of India,1950Article
226-U.P.
Revenue
Code
Rules,2016-Rule
57-lease
of
fishery
rights-validity of Advertisement-recovery
proceedings-the Petitioner participated in
an auction for fishery rights in a village