1. In the present case, son of the second wife of the deceased employee claimed appointment on compassionate ground and the respondents railway authorities rejected the said claim on the ground that the appointment on compassionate ground to the second wife or her children can not be considered in view of the specific circular issued by the Railway Board on 2nd January, 1992.
2. It is not in dispute that the deceased employee married for the second time during the lifetime of the first wife as there was no issue from the first marriage. Undisputedly, the employee concerned died-in-harness, leaving behind two wives and four children of the second wife. Admittedly, the first wife never challenged the second marriage of the deceased employee, nor even any complaint was lodged by the said first wife before the Railway Authorities for taking any disciplinary action against the deceased employee. The deceased employee used to live with both the wives and the children of the second wife. From the records we also find that the second wife and her children got their respective share of retiral benefits of the deceased employee and furthermore, the said second wife is also getting her share of family pension regularly. Therefore, when the second wife has been accepted as a member of the family of the deceased employee and the Railway Authorities granted family pension to the second wife treating her as a member of the family of the deceased employee, there cannot be any valid reason to deny the claim of compassionate appointment of the son of the said second wife specially on the ground that the said son cannot be treated as a member of the family of the deceased employee being the son of the second wife.
3. The Supreme Court in the case of Rameshwari Devi v. State of Bihar, reported in 2000 (2) SCC 431 : 2000 WBLR (SO 126, specifically held that the second marriage during the subsistence of first marriage may be illegal but the children born out of such second marriage are legitimate and are also entitled to the estate of the father. Paragraph 14 of the aforesaid judgment is set out hereunder:
“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 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 Ramesh wan Devi with Narain Lal. That is, however, the legal position - when a Hindu male dies intestate…”
(emphasis supplied).
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 married 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 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.
5. 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.
6. 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.
7. 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.
. 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 appointment to the said son of the second wife, namely the petitioner No. 2 herein and directed the General Manager, 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 on 2nd 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 the 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).
9. In the aforesaid circumstances, the aforesaid circular issued by the Railway Board on 2nd January, 1992 stands quashed to the extent it prevents the children of the second wife from being considered for appointments on compassionate ground.
10. For the reasons discussed hereinabove, we direct the respondents Railway Authorities to allow the claim of the petitioner No. 2 for appointment on compassionate ground and issue appropriate order of appointment in favour of the said petitioner No. 2 without any further delay but positively within a period of two months from the date of communication of this order.
11. This writ petition thus stands allowed. There will be, however, no order as to costs.
12. Urgent certified photostat copies of this order, if applied for, shall be given to the parties subject to compliance with all requisite formalities.
P.C.M
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