1. The short question which falls for consideration in this appeal is as to whether a son of a second wife whose marriage is void in terms of Section 5 read with Section 11 of the Hindu Marriage Act is entitled to compassionate appointment in terms of the Government Memo No. 3/C2-2067/ 90 Ka. 13293 dated 5th October, 1991.

2. Appellants claim was rejected by the District Compassionate Appointment Committee on the ground that the deceased employee has two wives and as the second marriage could not have been performed while the first marriage was subsisting the claim of the appellant, who is a son of the second wife, cannot be considered for compassionate appointment. The appellant moved before the learned Single Judge challenging the said decision which has been dismissed by him by order dated 28.2.2005 necessitating this appeal.

3. The factual aspects for considering the point involved are that the father of the appellant was appointed on 1.4.1977. While he was in service of the State Government, he died on 24.5.2002 leaving behind two wives and one son from the second wife, namely, the appellant. On 18.7.2003 the appellant filed an application for compassionate appointment before the competent authority. He also filed an affidavit from his step mother that she was issueless and with her consent her husband married second time with the mother of the appellant Smt. Raj Kumari Devi from whom the appellant was born and he being the only son in the family, should be appointed on compassionate ground. On 8.7.2004, the District Compassionate Appointment Committee considered the matter and by letter No. 2008 dated 12.8.2004 rejected the claim of the appellant on the ground that he being the son of the second wife where marriage was void, cannot be appointed on compassionate ground.

4. Rule 23 of the Bihar Government Servants Conduct Rules, contains a provision with regard to restrictions regarding marriages and sub-rule (1) says that no Government servant shall enter into or contract a marriage with a person having a spouse living and sub-rule (2) says that no Government servant, having a spouse living shall enter into or contract a marriage with any person.

5. Admittedly, the second marriage was performed with the mother of the appellant while the deceased was in Government service and as such it was a misconduct in terms of the Government Servants Conduct Rules, but the first wife or any other person did not raise any objection during the life time of the father of the appellant. In that view of the matter, it is not relevant at all to decide the matter in controversy.

6. The Government has come out with a policy decision as contained in memo No. 3/C2-2067/90 KA. 13293 dated 5th October, 1991, as referred to above, providing employment in Class III and Class IV posts in case of death of a Government servant during service period. The said memo also lays down the categories/persons entitled to the said appointment and other procedure for the same. According to the Circular, only dependent will be given employment on compassionate ground and under the category of dependents are widow of the deceased employee, son, unmarried daughter and the widow of predeceased son and the order of preference would be, the widow of the deceased, son, unmarried daughter and the widow of predeceased son.

7. Admittedly, the appellant is the son of the deceased so according to the circular, his claim is permissible for appointment on compassionate ground, but the same, as stated above, has been rejected on the ground that he is the son of the second wife and as such the relevant question for consideration is as to what would be his status according to law; whether he is a legitimate child or illegitimate child.

8. Section 5 of the Hindu Marriage Act provides conditions for a Hindu marriage which is admittedly applicable in the case of the appellant and clause (i) of Section 5 provides that neither party has a spouse living at the time of the marr