CIVIL WRIT JURISDICTION CASE No.2592 OF 2007 (In the matter of an application under Articles 226 of the Constitution of India) ****** 1. The Union of India through the General Manager, East Railway, Fairlie Place,17 Netaji Subhash Road, Kolkata. 2. General Manager, Eastern Railway, Kolkata. 3. Chief Works Manager, Eastern Railway, Jamalpur Workshop, Munger. 4. Deputy Chief Personnel Officer, Eastern Railway, Jamalpur Workshop, Munger. --- Petitioners. Versus 1. Uma Devi W/o Late Bhim Mandal, Ex. T No. 23157 of B.R.S. Workshop, Jamalpur, resident of Mohalla-Nayagaon, Baddipara, P.O.Jamalpur, Dist. Munger (Bihar). 2. Kumari Reena, D/o Late Bhim Mandal, resident of Mohalla- Nayagaon, Baddipara, P.O. Jamalpur, Dist.- Munger ( Bihar). -----Respondents ****** For the Petitioners : Mr. Bindhyachal Singh, Advocate. For the Respondents : Mr. Krishna Prasad, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ****** S.K.Katriar & K.K.Mandal,J.J. This writ petition is directed against the order dated 14.07.2006 (Annexure-3), passed by the Central Administrative Tribunal, Patna Bench, in O.A.No. 739 of 2005 (Uma Devi & Anr. Vs. The Union of India & Ors.), whereby the original application preferred by respondent no.1 herein has been allowed, and the authorities (petitioners herein) have been directed to consider her daughter’s claim for appointment on compassionate ground. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. Bhim Mandal was in the 2 services of the Eastern Railways. He had married one Urmila Devi. While the marriage was subsisting, and after promulgation of the Hindu Marriage Act, 1955, (hereinafter referred to as the ‘Act’), he married respondent no.1 herein. Three daughters were born out of this combination. Respondent no.2 is one of them. The employer died on 02.02.1997, while still in harness, leaving behind two widows and three children. The post-retirement benefits were distributed among the two widows. Dispute arose as to payment of the post- retirement benefits leading to O.A.No. 572 of 2004 (Annexure-1), at the instance of respondent no.1 herein. The same was allowed by the Central Administrative Tribunal, Patna Bench, by order dated 27.05.2005 (Annexure-1), and it was directed that Uma Devi (respondent no.1) shall be paid the post-retirement benefits. 3. Respondent no.1 staked her claim for appointment on compassionate ground also, and desired that respondent no.2, her daughter from Bhim Mandal, may be given appointment on compassionate ground leading to present O.A.No. 739 of 2005, which has been disposed of by the impugned order, and the authorities have been directed to consider the case of respondent no.2 for appointment on compassionate ground. Hence this writ petition at the instance of the authorities. 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The admitted position is that the employer died leaving behind two widows, and both of whom had married the employee after 3 promulgation of the Hindu Marriage Act. It is further the admitted position that respondent no.1 claimed payment of post-retirement benefits. Such course of action, to our mind, is permissible in terms of Section 16 of the Hindu Marriage Act, and is also supported by the judgment of the Supreme Court in AIR 2000 SC 735 in the case of Rameshwari Devi vs. State of Bihar & Ors. The provision of Section 125 of the Code of Criminal Procedure also comes to the aid of such illegitimate children. 5. The present writ petition deals with claims for appointment on compassionate ground. It appears to us on a perusal of Section 16 of the Act the same is confined to property rights of the father of the illegitimate children who, by fiction of law, are treated to be illegitimate children. 6. The spirit of Section 125 Cr. P.C. in favour of such children is to the same effect. This is possibly for two reasons. The legitimate children have arrived in this world for no fault of theirs and, therefore, they cannot be indicted for no fault of theirs. Secondly, the substance of Section 16 of the Act, as well as Section 125 Cr. P.C., is that the illegitimate children by fiction of law are entitled to draughts from the properties of the father. We are not aware of any provisions of law which permits such draughts on the resources of the employer. Any direction for appointment on compassionate ground will be a draught on the resources of the employer, which, in our opinion, would be impermissible in law, and would be exceeding the limits of benefits conferred by law on such children. No provisions of law 4 has been brought to our notice, or any cognate provision of law, which confers any such benefit on such children. 7. We must also notice the circular dated 24.01.1992 (Annexure-2), issued by the Eastern Railway, wherein this aspect of the matter has been dealt with. The entire text of the same is reproduced hereinbelow:- “Sub: Appointment of compassionate grounds-cases of second widow and her wards. 1. It is clarified that in the case of railway employees dying in harness etc. leaving more than one widow along with children born to the 2nd wife, while settlement dues may be shared by both the widows due to Court orders or otherwise on merits of each case, appointments on compassionate grounds to the second widow and her children are not to be considered unless the administration has permitted the second marriage, in special circumstances, taking into account the personal law etc. 2. The fact that the second marriage is not permissible is invariably clarified in the terms and conditions advised in the offer of initial appointment. 3. This may be kept in view and the cases for compassionate appointment to the second widow or her wards need not be forwarded to Railway Board. 4. Kindly acknowledge receipt.” It is evident that Eastern Railways were mindful of the legal position indicated hereinabove and have, therefore, rightly provided in their administrative instructions that the claims set up by children born out of such unholy combination cannot be given the benefit of compassionate appointment. We agree with the administrative instructions. 8. Law is well-settled that public employment in this 5 Country is a national wealth, and every citizen should have unrestricted access to the same which is possible only after the vacancies are advertised, and given wide publicity. Appointment on compassionate ground is based on descent, and the court have generally set their faces against the same, subject to exceptional circumstances to be found in legislation, or policy decision or executive instruction of the employer. The position in the present case is just to the contrary with respect to children born out of an unholy combination. 9. We, therefore, disagree with the order of the learned Tribunal, and is accordingly set aside. In the facts and circumstances of the case, there shall be no order as to costs. Patna High Court, Dated the 22nd April,2010 Sym/NAFR (S.K.Katriar,J.) ( Kishore K. Mandal, J.)