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2013 Supreme(Mad) 157
Madurai Bench of Madras High Court
K. RAVICHANDRA BAABU, J.
S. Devasirvatham
Versus
The State of Tamilnadu, represented by its Special Commissioner & Secretary & Others
W.P(MD)No. 3149 of 2008 & M.P.(MD)Nos.1 to 3 & 5 of 2008
Decided On : 08-01-2013
For the Petitioner:J. Alaguram Jothi, Advocate.
For the Respondents:R. Anandaraj, Government Advocate.
Children born through void marriages are legitimate and entitled to benefits, and the illegitimacy of the marriage cannot be a stumbling block for dependent to get employment.
Headnote:
Compassionate Appointment - Illegitimate Children - G.O.Ms.No.34, Labour and Employment Department, dated 15.04.2002 - The court held that children born through void marriages are legitimate and entitled to benefits. The illegitimacy of the marriage cannot be a stumbling block for dependent to get employment. The petitioner cannot be dismissed solely on the reason that he is the son of the 2nd wife and not entitled to compassionate appointment.
Fact of the Case:
The petitioner, born through the second wife of his deceased father, applied for compassionate appointment after the death of his father. His appointment was later cancelled and he was dismissed from service on the grounds that the second marriage was illegal.
Finding of the Court:
The court found that the petitioner, being a dependent of the deceased government servant, was entitled to compassionate appointment despite being born through a void marriage. The court also noted that the petitioner had been appointed nearly 19 years prior, and the proceedings against him were unjustifiable.
Issues: The issue involved whether the petitioner born through the second wife of his deceased father is entitled to be considered for compassionate appointment and whether G.O.Ms.No.34, dated 15.04.2002 is applicable against the petitioner.
Ratio Decidendi: The court held that children born through void marriages are legitimate and entitled to benefits. The illegitimacy of the marriage cannot be a stumbling block for dependent to get employment.
Final Decision: The writ petition was allowed, and the impugned orders were set aside. The respondents were directed to reinstate the petitioner and disburse all the monetary benefits withheld to the petitioner within eight weeks.
1. The petitioner is challenging the order of dismissal passed by the third respondent, in his proceedings, dated 31.03.2008 as well as the proceedings of the second and third respondents, dated 19.02.2008 and 16.03.2008 resulting in passing of the order of dismissal.
2. The case of the petitioner is that his father A.Samuvel was working as a Secondary Grade Teacher in the Panchayat Union School. He died on 18.11.1972 while he was in service. His father first married to one Thavamani. She voluntarily withdrew from the matrimonial home leaving two children with his father. Thereafter, his father married another person namely, Rajammal, the mother of the petitioner herein. Therefore, the petitioner applied for an employment on compassionate ground after the death of the father. Consequently, the petitioner was appointed as 'Night Watchman' on 02.02.1989. Then he was promoted as 'Office Assistant' on 24.01.1992 and further promoted as 'Junior Assistant' on 30.03.1993. The petitioner is working as a Cashier at Sattur Panchayat Union Office, Sattur. On 19.03.2008, the petitioner was issued with a show cause notice, dated 16.03.2008 calling for an explanation as to why his service should not be terminated on the ground that the petitioner born through the second wife is not entitled to the compassionate appointment. The petitioner gave his explanation on 25.03.2008. Even thereafter, without considering the fact that the petitioner is entitled to be treated like any other legitimate children, the impugned order of termination came to be passed only on the reason that the petitioner was born through the second wife with whom there was no valid marriage performed.
3. The respondents filed a counter affidavit and stated that as per G.O.Ms.No.34, Labour and Employment Department, dated 15.04.2002, the Government strictly prohibited the illegal children from getting appointment on compassionate ground. Therefore, the petitioner having been born through the second marriage, which was illegal, his appointment was cancelled and he was dismissed from service.
4. Heard the learned counsels appearing for the respective parties.
5. The issue involved in this case is as to whether the petitioner born through the second wife of his deceased father is entitled to be considered for compassionate appointment and whether G.O.Ms.No.34, dated 15.04.2002 is applicable against the petitioner. Such question was already considered by this court in a decision reported in 2008(6) CTC 806 in the case of N.Panneerselvam vs. The Secretary to Government, Public Works Department and two others. The learned Judge, after considering all the facts and circumstances as well as by considering the Hon'ble Division Bench order reported in 2004(4)MLJ 177 in the case of Geetha Ramani vs. the District Educational Officer, Kancheepuram, has held at para 5 to 9 as follows:-
“5. Law is well settled that even if the second marriage of the petitioner's father is void, as per the Hindu Marriages Act, the children born through such void marriage cannot be held to be illegitimate. In the factual situation here, the first respondent itself has admitted that in respect of the pension and DCRG, which are property rights the petitioner is conferred such right by treating him as legal heir of the erstwhile employee of the first respondent. In such circumstances, the strange conclusion by the first respondent that the petitioner would not be entitled for Compassionate Appointment simply because his father has married the second wife which is a void marriage. Such reason is absolutely not sustainable.
6. In this context, it will be useful to refer to a Division Bench Judgment, headed by Mr. Justice S.J. Mukhopadhaya and Mr. Justice V. Dhanapalan, in the case of H. Anwar Basha v. Registrar General (Incharge), 2008 (5) MLJ 795, wherein it is held by relying upon the various other earlier judgments of the Apex Court as well as this Court that what is required to be considered f
