The denial of compassionate appointment to legitimate children born from a second marriage is unconstitutional and violates Article 14 of the Constitution.

JUDGMENT

1. The facts in brief are that Mohan Singh was a Class-IV employee in the respondent-department. Shri Mohan Singh had two wives namely, Smt. Gowa Devi and Smt. Chandra Devi (petitioner No.1). Shri Jatin Singh (petitioner No.2) is son through second wife i.e. Smt. Chandra Devi. Shri Mohan Singh died while in service on 08.04.2002. Smt. Chandra Devi (petitioner No.1) filed an application seeking compassionate appointment as per the provisions of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 (hereinafter referred to as 'Rules of 1996'). The application was rejected vide order dated 07.06.2003, on the ground that she is not legally wedded wife of the deceased employee. The order dated 07.06.2003 was challenged by way of filing S.B. C.W. No.5019/2004 (Smt. Chandra Devi v. State of Rajasthan & Ors.) before Co-ordinate Bench of this Court. During pendency of the aforesaid writ petition, Smt. Chandra Devi (petitioner No.1) became overage. The writ petition was therefore, withdrawn with the liberty to pursue the matter for compassionate appointment qua the son i.e. Jatin Singh (Petitioner No.2). A representation dated 03.05.2017 was submitted by the petitioner No.2 seeking compassionate appointment as per the Rules of 1996. The respondent No.4 vide order dated 15.06.2017 rejected the representation on the ground that petitioner No.2, being the son of second wife is not entitled for appointment on compassionate grounds.

2. The controversy involved in the present writ petition has already been settled in a catena of judgments by the Hon'ble Supreme Court. In the case of Union of India v. V.R. Tripathi reported in (2019) 14 SCC 646, the Hon'ble Supreme Court has held as under:

12. 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 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 construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."

13. In sub-section (1) of Section 16, the legislature has stipulated that a child born from a marriage which is null and void under Section 11 is legitimate, regardless of whether the birth has taken place before or after the commencem