The central legal point established in the judgment is that the legitimacy of a child born out of a void marriage under Section 16 of the Hindu Marriage Act, 1956 does not entitle the child to claim compassionate appointment under the statutory rules.

Heard Sri Muralidhar, Senior Advocate, assisted by Sri Ram Pratap Singh for petitioner, and Sri Nripendra Misra for the respondents-Corporation.

2. Late Satai was employed as petrol Man, in Electricity Distribution Division-II, Allahabad. His wife Smt. Satina Devi had no issue. It is alleged, that in the year 1978, with the consent of Satina Devi, he sought permission of the Executive Engineer, Electricity Distribution Division-II, Allahabad for second marriage, which was given to him on 24-10-1978, with the condition that as soon as a child is born, his relation with the second wife shall cease. With this permission he married one Kaushalya Devi. Petitioner was born to Kaushalya Devi on 30-12-1980. Sri Satai died in harness on 19-11-2000. It is alleged that there was a settlement between Smt. Satina Devi and Kaushalya Devi on 1-7-2002, under which Smt. Satina Devi was made entitled to and is receiving the retiral dues, and that petitioner shall be entitled to compassionate appointment, to which Satina Devi, will have no objection.

3. Petitioner applied for compassionate appointment under U. P. State Electricity Board Appointment of Dependents of Employees of Board (Dying-in-Harness) Rules, 1975. A favourable recommendation was made by the Executive Engineer. The General Manager (Distribution), Allahabad referred the matter to the Head Office at Lucknow. The Personnel Officer, U. P. Power Corporation has, by impugned order dated 25-2-2003 found, that compassionate appointment cannot be given on a settlement. The child born out of second marriage is not a legitimate child, and that the matter requires decision by the competent Court, after which it will be examined by the legal branch of the Corporation.

4. Sri Muralidhar, Senior Advocate, submits that late Satai married petitioners mother, after taking permission from the employer, and that under Section 16 of the Hindu Marriage Act, 1956, a child born out of a marriage which is void or voidable, is a legitimate child. According to him, petitioner falls within the definition of family under Rules of 1975, and is entitled to be considered for compassionate appointment.

5. Sri Nripendra Misra appearing for Corporation, on the other hand, submits that petitioner is not a legitimate child, and that the compassionate appointment under Rules of 1975, cannot be given by way of a settlement between the widow and the other woman who is not legally wedded wife inasmuch as the second marriage was a void marriage under Section 11 of the Hindu Marriage Act, 1956. He submits that the object of compassionate appointment will not be served to maintain a person who is not a legally married wife of the deceased employee.

6. The Rules of 1975 define family of the deceased employees of the Board to include, (i) husband and wife; (ii) son, which will also include adopted son in respect of Hindu employee, and (iii) unmarried daughters and widowed daughters.

7. A second marriage during the life time of a living spouse, is void. Section 11 of the Hindu Marriage Act, 1956 declares, such a marriage in contravention of Section 5 (I) null and void. The legitimacy of child is, however, protected under Section 16 of the Act which is quoted as below:

"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 partie