Hon’ble Yashwant Varma, J.—Heard learned counsel for the petitioner and Sri Bipin Bihari Pandey, learned Additional Chief Standing Counsel appearing for the State respondents.

2. The petitioner claims to be the son from the second wife of the late Mewaram Sharma who was working as a Class IV employee in the office of Tehsil Sadar, Agra (Nazarat Department). The said employee is stated to have died while in service on 30 December 2016. Subsequent thereto, the petitioner moved an application on 14 February 2017 claiming compassionate appointment. This application has been rejected by the District Magistrate holding that the second marriage of late Mewaram Sharma was void and therefore the petitioner would have no right to seek consideration of his appointment on compassionate ground. This finding, significantly, is recorded although the impugned order does record that no competing claims had been recieved.

3. Bearing in mind the nature of issues which had been raised in this writ petition and which were purely legal in character, Sri Bipin Behari Pandey, the learned Additional Chief Standing Counsel has agreed for the disposal of the writ petition without filing a counter-affidavit at this stage since the consideration by the Court is confined to the question of whether the petitioner would be entitled to be considered under the 1974 Rules or not.

4. The Court notes that the sole consideration which has weighed with the respondent is a perceived illegitimacy of the petitioner on account of he having been borne from the second wife of the deceased employee. The respondent No. 2 has proceeded on the basis that since the second marriage was contracted while the first wife was still alive, not only was the marriage liable to be treated as void, even the rights of a child born from such a second marriage would stand nullified by operation of law.

5. This in the considered view of the Court does not appear to be the correct position when viewed in light of the provisions of the Hindu Marriage Act 1955. The view taken by the respondents is clearly in conflict with the statutory mandate of Section 16 of the 1955 Act. Section 16 being relevant for our purposes is extracted herein below :

Legitimacy of children of void and voidable marriages.—(1) Notwithstanding that a 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.”

6. A plain reading of the aforesaid provision clearly establishes that a child borne out of a marriage which may be in violation of the injunct placed by Section 11, would not be liable to be viewed as illegitimate. The fact that the marriage is or is likely to be declared as void, does not change the character of a child borne of such a marriage and he remains the legi