Child born from void second marriage under Hindu law deemed legitimate under Section 16 HMA, entitled to compassionate appointment; rejection based on marriage invalidity erroneous.

Judgment :

Smt. M. S. Jawalkar, J.

Heard.

2. Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.

3. The present petition is filed for quashing and setting aside the impugned communication dated 16/05/2023 issued by the respondent-Zilla Parishad Wardha.

4. The father of the petitioner, who was permanent employee of the respondent, expired on 23/03/2003 while working on the post of driver. At the relevant time, the petitioner was minor, around four years old. He attained the age of majority on 15/01/2017. As he was having requisite qualification, the petitioner was applied for the appointment on compassionate ground within a period of one month after he attained the age of majority, i.e. on 02/02/2017. Thereafter, he made representations on 15/04/2017, 03/05/2017 reiterating his request. It is pointed out that the mother of the petitioner immediately after the death of her husband applied for appointment on compassionate ground. The petitioner has also made a request even before her son’s completion of 18 years of age that as soon as he became major, he may be considered for appointment on compassionate ground.

5. As the respondent was insisting for succession certificate, the first wife of the husband applied for the same, wherein the mother of the petitioner was non-applicant No.1. The said matter was settled as per the terms of compromise on 07/12/2007. It appears that vide communication dated 29/09/2012, the claim of the mother of the petitioner turned down on the ground that she being second wife and the second marriage is not valid as per Hindu Law. By this communication, the claim of the petitioner also came to be rejected on the ground that he is the son of second wife. We are of the considered opinion that the reason given for rejecting the claim of the petitioner is apparently erroneous.

6. The learned counsel for the petitioner relied on the judgment in Union of India v. V.R.Tripathi , 2018 SCC OnLine 3097, wherein the Hon’ble Apex Court held in paras-14 and 15 as under:

“14. The real issue in the present case, however, is whether the condition which has been imposed by the circular of the Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of a deceased employee (except where the marriage was permitted by the administration taking into account personal law, etc) accords with basic notions of fairness and equal treatment, so as to be consistent with Article 14 of the Constitution. While answering this issue, it would be necessary to advert to the provisions of Section 16 of the Hindu Marriage Act, 1955 which provide thus:

"16. Legitimacy of children of void and voidable marriages.-(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construe