The central legal point established in the judgment is the wide interpretation of the protection given to children under Section 16 of the Hindu Marriage Act for the purpose of social welfare measures.

( 1 ) HEARD Sri Ashok Khare, Senior Advocate, for petitioner and learned Standing Counsel.

( 2 ) THE short question to be decided in this case is whether the daughter of second wife, with whom the deceased Government servant had entered into a marriage, while the first wife was alive, is entitled for consideration of the compassionate appointment under U. P. Recruitment of dependants of Government Servants Dying in Harness Rules, 1974 (in short the Rules of 1974 ).

( 3 ) THE admitted facts in this case are that the petitioners father Late Chet Narain Singh, was serving as permanent Collection Amin, died in harness on 31. 12. 2001. The petitioner is the daughter of the second wife of the deceased Government servant. The second marriage took place, while the first wife is still alive.

( 4 ) LEARNED Standing Counsel submits that a Government servant under the Rule 29 of the U. P. Government Servants Conduct Rules, 1956 is not entitled to marry while his first wife is alive and that the children born out of such second marriage cannot be recognized to be legitimate for the purposes of employment under the Rules of 1974. Section 11 of the Hindu Marriage Act, 1955 declares the second marriage, while first wife is alive under Section 5 (i) to be a void. Section 16 of the Hindu Marriage Act, 1955, however, provide that notwithstanding that the 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 on or after commencement of the Marriage Laws (Amendment) Act, 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 the Act.

( 5 ) SRI Ashok Khare Senior Counsel has rightly relied and is correct in relying upon the judgment of Supreme Court in Bakulabai and Anr. v. Gangaram and Anr. , 1988 (1) SCC 537, in which it was held that such illegitimate child is entitled to maintenance under Section 125, Cr. P. C. , ignoring the fact of illegitimate marriage.

( 6 ) THE Rules of 1974, have been made as a welfare measure, to provide employment to the dependants of the Government servant dying in harness provided other conditions are fulfilled. The definition of word family in Rule 2 (2) includes wife or husband, sons, un-married and widowed daughters and if the deceased was unmarried Government servant, brother, un-married sister and widowed mother dependent on deceased the Government servant. The word un-married or widowed daughter in the Rule 2 (c) (iii) cannot exclude daughters who are declared to be legitimate under Section 16 (1) of the Hindu Marriage Act, 1955. Section 16 was substituted by Act No. 68 of 1976. The protection given to such children, who are not to be blamed for the illegitimacy of the second marriage, must be given a wide interpretation to the rules of 1974, by way of a measure of social welfare. The first wife of the deceased Government servant Smt. Ram Kumari Devi did not have any issue. Both the widows have given affidavits expressing no objection to the compassionate appointment, and that both of them have jointly obtained certificates, for succession for the funds from the Court of Civil Judge (SD) in Misc. Case No. 75 of 2002, decided on 18. 1. 2003.

( 7 ) THE writ petition is consequently allowed. The respondents are directed to decide the application for compassionate appointment afresh treating the petitioner to be eligible for such appointment. The required consideration shall be made within two months from the date of communication of this Order.

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