IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11436 of 2008 =========================================================== Manisha Kumari, D/o late Dinesh Chandra Sahani, resident of Village Narhan State Bibhutipur, P.O. Narhan, P.S. Bibhutipur, Dist. Samastipur, presently residing at Mother Maternal Home C/o Sri Yadunandan Prasad Singh, Village Jamalpur Gogri (Muskipur), P.O. Jamalpur, P.S. Gogri, Dist. Khagaria. .... .... Petitioner Versus 1. The State Of Bihar through the Secretary-cum-Commissioner, Human Resource, Govt. of Bihar, Patna. 2. The District Magistrate, Samastipur. 3. The District Education Officer, Samastipur. 4. Smt. Usha Devi, 2nd Wife of late Dinesh Chandra Sahani, resident of Village Narhan State, Bibhutipur, Dist. Samastipur. .... .... Respondents with Miscellaneous Jurisdiction Case No. 2067 of 2010 =========================================================== Manisha Kumari, D/o late Dinesh Chandra Sahni, R/o Village Narhan, P.S. Bibhutipur, Dist. Samastipur, presently residing at Maternal home, C/o Sri Yadunandan Pd. Singh, Village Jamalpur Gogri (Muskipur), P.S. Gogri Jamalpur, Dist. Khagaria. .... .... Petitioner Versus 1. State Of Bihar through the Secretary-cum-Commissioner, Human Resources Deptt., Govt. of Bihar, Patna. 2. Sri Atangwa Chubao, S/o not known, the District Magistrate, Samastipur. 3. Sri Lalit Narayan Rajak, S/o not known, the D.E.O., Samastipur. 4. Smt. Ram Dulari Devi, Head Mistress of Rajmani High School, Bhore- Shahpur, Dist. Samastipur. 5. Usha Devi, Wife of late Dinesh Chandra Sahni, R/o Village Narhan, P.S. Bibhutipur, Dist. Samastipur. .... .... Opposite Parties =========================================================== Appearance : (In CWJC No. 11436 of 2008) For the Petitioner/s : Mr. RAJEEV KUMAR SINGH Mr. Shashi Bhushan Kumar For the Respondent/s : Mr. (GP17) (In MJC No. 2067 of 2010) For the Petitioner/s : Mr. MADAN PD. SINGH-2 Mr. Arun Kumar Singh For the Respondent/s : Mr. (SC5) Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 2 =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA CAV JUDGMENT Date: 03-07-2013 I.A. No. 399 of 2012 in CWJC No. 11436 of 2008 For the reasons mentioned in this application, the prayer made therein is allowed and the intervener Usha Devi claiming to the second wife of late Dinesh Chandra Sahni is impleaded as respondent no.4 to this writ application specially when she has already been appointed on compassionate ground by virtue of being wife of late Dinesh Chandra Sahni, inasmuch as, even the petitioner Manisha Kumari also claims her appointment on compassionate ground on the strength of being daughter of late Dinesh Chandra Sahni from his first wife, namely, Indu Devi. 2. Heard learned counsel for the parties. 3. In the writ application, CWJC No. 11436 of 2008, the petitioner has prayed for considering her case for appointment on compassionate ground and in MJC No. 2067 of 2010, a prayer has been made for recalling/modification of the order dated 9.2.2010 passed in CWJC No. 7755 of 2009, whereby and whereunder, a direction was issued in favour of Usha Devi, the writ petitioner in CWJC No. 7755 of 2009 for appointing her on compassionate ground. 4. Both the cases are interrelated, inasmuch as, the petitioner Manisha Kumari is the daughter of late Dinesh Chandra Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 3 Sahni who was working as a teacher in a government high school in the district of Samastipur. Usha Devi in whose favour an order has been passed by this Court on 9.2.2010, on the other hand, is the second wife of late Dinesh Chandra Sahni, the father of Manisha Kumari. 5. The facts giving rise to both the applications lie in a very narrow compass. From the record, it would transpire that late Dinesh Chandra Sahni had been firstly married to Indu Kumari on 27.2.1984 and in the year 1990, he had filed a divorce case on 31.5.1990 being Divorce Case No. 13 of 1990 seeking dissolution of marriage with Indu Kumari on the ground of cruelty as also her being lunatic. In the said divorce case though Indu Kumari, the mother of the petitioner Manisha Kumari, had appeared on 14.12.1990 and had sought adjournment for filing her written statement in the divorce case filed by her husband Late Dinesh Chandra Sahni but ultimately she did not choose to contest the aforesaid Divorce Case No. 13 of 1990 which was decreed ex-parte on 4.8.1992 by the District Judge, Samastipur dissolving the marriage and also granting divorce to Late Dinesh Chandra Sahni. 6. From the records, it is also established that Late Dinesh Chandra Sahni after obtaining the divorce had filed an application on 5.1.1993 before his controlling officer, namely, the Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 4 District Education Officer, Samastipur seeking permission to solemnize his marriage in view of the decree of divorce and such permission was also granted on 10.3.1993 by the District Education Officer on that very application dated 5.1.1993 filed by Dinesh Chandra Sahni before the District Education Officer, Samastipur. It is claimed that thereafter the marriage of Dinesh Chandra Sahni was performed with Usha Devi. 7. The story does not end here, inasmuch as, it also transpires from the record that after the marriage of Usha Devi with Dinesh Chandra Sahni, a belated application was filed by Indu Kumari for setting aside the ex-parte decree being Misc. Case No. 31 of 1994 which was dismissed by the District Judge on the ground of limitation vide order dated 14.12.1994. As against the aforementioned order dated 14.12.1994, Indu Kumari had filed an appeal before this Court being Misc. Appeal No. 41 of 1995 and this Court by an order dated 30.10.1995 had set aside the order dated 14.12.1994 and had remitted the matter back to the District Judge, Samastipur for re- hearing the parties on the petition under Order 9 Rule 13 of the C.P.C. for setting aside the ex-parte decree of dissolution of the marriage. The Court below having heard the parties on remand on revival of the Misc. Case No. 31 of 1994 filed by Indu Kumari @ Indrani Kumari Anupam and after the parties had led their evidence, the 3rd Additional Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 5 District Judge, Samastipur by his order dated 29.7.2000 had set aside the ex-parte decree and thus, Divorce Case No. 13 of 1990 was revived. 8. While the aforesaid Divorce Case No. 13 of 1990 was still pending for consideration before the District Judge, Samastipur, Dinesh Chandra Sahni, the applicant in divorce case had died on 17.1.2005 as a result whereof, the divorce case in the order of the First Additional District Judge, Samastipur dated 5.2.2005 was held to have been abated. After the divorce case came to its automatic end on the death of late Dinesh Chandra Sahni, two competing claims were put forward by his two wives, namely, Indu Kumari and Usha Devi. Late Dinesh Chandra Sahni had one daughter namely Manisha Kumari the petitioner of these cases whereas he had four daughters from his second marriage with Usha Devi. Thus, the death cum retiral benefit as also compassionate appointment became the bone of contention. From the records, it also transpires that there was some sort of family settlement in view of the information recorded by the Government Pleader, whereby and whereunder, while the entire family pension was held to be payable to Indu Kumari the first wife, in the rest of the retirement benefit, six shares were made out of which five shares were meant for the five daughters from the two marriages of late Dinesh Chandra Sahni and the sixth share was apportioned Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 6 between the two wives. It is not in dispute that Indu Kumari, the wife is still getting the family pension. 9. At the time of death of late Dinesh Chandra Sahni on 17.1.2005, Manisha kumari was aged about fourteen years and thus, after she had attained majority, she had filed the present writ application CWJC No. 11436 of 2008 seeking a direction for her appointment on compassionate ground taking a plea that her father had died in harness and she, being the daughter of the first wife, was entitled for her appointment. 10. Subsequently, Usha Devi had also filed her separate writ application CWJC No. 7755 of 2009 in which she had made a prayer for a direction for her appointment on compassionate ground. In the said writ application, though she had given the fact relating to filing of the divorce case by late Dinesh Chandra Sahni against Indu Kumari as also the ground of divorce by an ex-party decree dated 4.8.1992 as also the rejection of the application under Order 9 Rule 13 filed by Indu Kumari under the order of the court dated 14.12.1994 but, she had not either knowingly or inadvertently mentioned about the setting aside of the ex-parte decree on 29.7.2000. As a matter of fact, even when she had impleaded Indu Kumari, the first wife of late Dinesh Chandra Sahni, as respondent no.6, this Court, on the basis of the averments mentioned in the writ application as also on perusal of Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 7 the counter affidavit, had allowed the writ application in the following terms:- “Heard counsel for the petitioner and the counsel appearing for the State. Counter affidavit has been filed on behalf of the respondent State. Petitioner has filed a supplementary affidavit in order to bring the judgment and decree passed by the Additional District Judge, Samastipur, in Divorce Case No.13 of 90. Petitioner is the legally wedded wife of late Dinesh Chandra Sahni, who died in harness on 17.01.2005, while posted as Assistant Teacher in Rajmani High School, Bhore, Shahpur. The husband of the petitioner was initially married with one Indrani Kumari Anupam @ Indu Devi. The relationship in between husband and wife was never cordial, finally, it became strained, as such, Divorce Suit No. 30 of 90 was filed under Section 13 of the Hindu Marriage Act, 1955, in the court of District Judge, Samastipur, for dissolution of marriage. The judgment was passed in the divorce case, dissolving the marriage in between Dinesh Chandra Sahani and Indrani Kumari Anupam @ Indu Devi, vide order dated 04.08.1992. Thereafter, Dinesh Chandra Sahani filed an application before the District Education Officer, Samastipur on 05.01.1993 for granting him permission to solemnize the second marriage. Once, permission was granted, he solemnized his marriage with the petitioner, Usha Devi, in the year 1994. The petitioner has four daughters out of this wedlock. Her husband died on 17.01.2005, while still in service. She filed her application for compassionate appointment on 05.07.2007. On 12.01.2006 again, filed representation for considering her application for compassionate appointment but, till date, nothing has been done. She is facing acute financial hardship as there is no source of income to maintain her family. Counter affidavit has been filed on behalf of District Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 8 Education Officer, Samastipur, respondent No. 4, in which the statement made by the petitioner is admitted. In pargraph 12, it has been stated that the petitioner has to maintain her minor daughters and for their maintenance, it is essential that she should be appointed on compassionate basis. It has also been stated that the application filed by the petitioner for compassionate appointment has duly been forwarded to the District Compassionate Committee, for making necessary recommendation. This application is being allowed, directing the District Magistrate-cum-District Compassionate Committee, Samastipur, to make recommendation for petitioner’s compassionate appointment, preferably within four weeks from the date of production/communication of the order. The District Education Officer, Samastipur, is directed to issue appointment letter in favour of the petitioner, immediately after the recommendation of District Compassionate Committee, in any case, there should not be delay in issuance of the appointment letter. All transactions must be completed by the respondents within eight weeks from the date of production/communication of the order.” 11. It has been submitted that the MJC No. 2067 of 2010 has been filed for recall/modification of the aforementioned order by the petitioner Manisha Kumari who claims that the said order has been obtained by Usha Devi, the second wife of Late Dinesh Chandra Sahni by playing fraud upon this Court. 12. In the considered opinion of this court, though Usha Devi, the opposite party no.4 in MJC No. 2067 of 2010 had not stated the facts with regard to setting aside the ex-party decree of divorce by the court below on 29.7.2000 but, then, that would not make any difference in the view of the fact that the respondent District Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 9 Education Officer, Samastipur had filed the counter affidavit wherein apart from other facts not only the factum of marriage of Usha Devi with late Dinesh Chandra Sahni was asserted but even an explanation was given in the counter affidavit as with regard to the delay in consideration of the case of the petitioner Usha Devi. Paragraph nos. 12 & 13 of the counter affidavit sworn by the District Education Officer, Samastipur in CWJC No. 7755 of 2009 is quoted hereinbelow:- “12. That it is further stated and submitted that the petitioner is the second wife of the Late Mr. Sahni, the Assistant Teacher who has four minor daughters whereas the first wife Indu Devi has only one daughter namely Manisha Kumari who claim for appointment on compassionate ground and due to that reason the entire pensionary benefits are divided into six shares an in one share, First and Second Wife are entitle to received equal half and half and rest five equal share are divided amongst five Daughters because maintenance is essential for minor daughter of Usha Devi due to that reason the benefit of compassion may be given to second wife USHA Devi as per legal opinion of the learned G.P. and First wife is only entitle to get benefit of family pension as per the legal opinion of the learned G.P. contained in letter no. 226 dated 08.12.2005 and letter no. 232 dated 16-12-2005. 13. That it is further stated that and submitted that the petitioners application for compassionate appointment is forwarded to the District Compassionate Committee considering the same and Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 10 after getting proper order and direction from the said District Committee that the necessary steps will be taken in this regard.” 13. In view of the above, this Court would not find that the status of Usha Devi was in any way shaken in capacity of second wife. As a matter of fact, the ex-parte decree of divorce had remained operative from 4.8.1992 and if before filing of the application under Order 9 Rule 13 by Indu Kumari the first wife in the month of December, 1994, Dinesh Chandra Sahni with the earlier permission of his controlling authority had solemnized marriage with Usha Devi, the said marriage cannot be said to be void in the eye of law. In any event, this Court will have no difficulty in holding that for the reasons beyond control of late Dinesh Chandra Sahni, he had on his death i.e. on 17.1.2005 having two wives, namely, Indu Kumari and Usha Devi. To that extent, there was no suppression of fact on the part of the Usha Devi while filing her writ application CWJC No. 7755 of 2009 and in fact when she had also impleaded Indu Kumari, the first wife of the respondent no.6 to her writ application CWJC No. 7755 of 2009, this Court is not in a position to accept the submissions of Mr. Madan Prasad Singh that any fraud was sought to be committed or played by Usha Devi in filing of her writ application. 14. Usha Devi in fact has filed her application seeking intervention in CWJC No. 11439 of 2008 filed by Manisha Kumari Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 11 wherein she has stated that pursuant to the aforesaid direction of this Court dated 9.2.2010 in CWJC No. 7755 of 2009, she has been appointed on Class-4 post of Peon in Indrani Balika Uchcha Vidyalaya, Ghose Lane, Samastipur on 10.6.2010. She has also given proof of payment of amount of the share of Manisha Kumari and Indu Devi in the provident fund of her husband vide Annexure-C showing payment of Rs. 65,987/- in the name of Manish Kumari and 32,998/- in the name of Indu Kumari @ Indrani Kumari Anupam. 15. Despite service of the aforementioned intervention application dated 12.1.2012, no counter affidavit has been filed by Manisha Kumari denying this aspect. 16. Learned counsel for the Usha Devi in fact has also submitted that Manisha Kumari has already been married and to support this, he had referred to the records of CWJC No. 1143 of 2009 wherein Manisha Kumari is one of the sixteen writ petitioners and has been described as wife of Raj Kumar, resident of Village Madhura, P.S. Morkahi, Dist. Khagaia. Since this fact was orally stated and not put on affidavit, this Court is not going to draw any inference against Manisha Kumari, inasmuch as, even otherwise, this Court would find her disentitled for appointment of compassionate ground. 17. The Government’s policy for compassionate appointment dated 5.10.1991 categorizes the dependent in which the Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 12 first preference has to be given to the wife followed by son and thereafter to unmarried daughter and finally to the widow daughter-in- law of the predeceased son. Thus, even if the authorities were facing the two claims one of Usha Devi the second wife of late Dinesh Chandra Sahni and the other of Manisha Kumari, daughter from the first marriage of late Dinesh Chandra Sahni with Indu Kumari, the first preference had to be given to the second wife specially when the first wife did not opt for compassionate appointment. In fact, there is nothing on record to show that Indu Kumari had ever staked her claim for appointment on compassionate ground. 18. On the other hand, there are materials to show that Indu Kumari the first wife and the mother of the petitioner is being paid entire family pension and has also been given the certain portion of death cum retiral benefit. In addition to it, Usha Kumari the second wife will be also under obligation to maintain the dependents of late Dinesh Chandra Sahni as per the undertaking given by her while claiming the compassionate appointment on the ground of death of late Dinesh Chandra Sahni. This Court would not like to go into any further on this aspect because of the family arrangement made wherein the first wife is getting family pension whereas second wife has been given the appointment on compassionate ground but, then, if ever a question arises as with regard to the maintenance of the Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 13 dependants of late Dinsh Chandra Sahni, Usha Devi apart from maintaining her dependent daughters will also owe a duty to maintain Indu Devi, the first wife of late Dinesh Chandra Sahni as also the petitioner Manisha Kumari at least till her marriage but only if she has not been married as yet. 19. This Court in fact wanted the parties to arrive to some settlement but Mr. Madan Prasad Singh, learned counsel for Manisha Kumari in both the cases was adamant that the appointment of Usha Devi should be cancelled because she had obtained it by playing fraud upon this Court. The conclusion, however, arrived by this Court is otherwise, inasmuch as, no fraud can be said to have been played by Usha Devi though she in all fairness ought to have also disclosed about setting aside of the ex-parte divorce decree in her writ petition which was filed in the year 2009. 20. Considering however the fact that Usha Devi has to also maintain her four minor daughters from the meagre salary of a Class-4 employee of the post of Peon and the fact that she has been continuing in service for almost three years, this Court would refuse to exercise its discretion in upsetting the existing arrangement of the family as quoted above but at the same time, it is made clear that if either Indu Devi, the first wife of Dinesh Chandra Sahni is in distress and unable to maintain herself from the amount of family pension or Patna High Court CWJC No.11436 of 2008 dt. 03-07-2013 14 Manisha Kumari is still unmarried and unemployed, it will be the duty of Usha Devi to also maintain them from her salary and emoluments and if an issue on this regard is raised, the District Education Officer, Samastipur, being the controlling authority of the post held by Usha Devi, will pass an appropriate order in accordance with law. 21. With the aforementioned observations and directions both the applications are disposed of. Patna High Court, Dated the 3rd of July, 2013 A.F.R./Rishi (Mihir Kumar Jha, J)