IMPORTANT POINT
Child born from a void marriage is entitled to be considered for compassionate appointment.

ORDER

This Writ Petition is filed to quash the proceedings passed by the 1st Respondent in Na.Ka.No.7082/2016/A5, dated 19.03.2021 and consequently direct the 1st respondent to appoint the petitioner on compassionate appointment.

2. The petitioner’s father namely Maruthai was working as a Village Assistant in Pagadapadi Village and he died on 21.12.2007 while he was in service. Subsequently, the petitioner being the son of the deceased, had applied for compassionate appointment and the same was rejected on the ground that the petitioner is an illegitimate son of the deceased employee who was born through the second wife when his first wife was alive. Hence, this Writ Petition.

3. Mr.P.Ganesan, learned counsel for the petitioner submitted that as per Hindu Succession Act, even the child born through void marriage be considered as a legitimate child and hence, the respondents may be directed to reconsider the petitioner’s application.

4. The learned counsel drew the attention of this Court to Section 45 (5) (iii) of the Tamil Nadu Pension Rules, 1978 which says that the sons including step sons, adopted sons born through illegitimate wife are entitled to get Death-cum-Retirement Gratuity of the deceased Government Servant and hence a different yard stick cannot be adopted in respect of compassionate appointment.

5. The petitioner has applied for compassionate appointment on 14.03.2008, but he was directed to resubmit the same with necessary documents. Thereafter, the petitioner submitted all the documents along with a fresh representation dated 24.11.2008 and the same was not considered. The petitioner again made a representation on 29.02.2016 seeking compassionate appointment. However, on 19.03.2021 the 1st respondent has passed an order by rejecting the petitioner’s claim by stating that the deceased father had married the petitioner’s mother as a second wife while the first wife of the employee was alive.

6. In the impugned order, it is stated that as per Government letter No.34, Labour and Employment (QI) Department dated 16.04.2002, the children born out of void marriages are entitled for family pension and Death-cum-Retirement and not for Compassionate ground appointment.

7. In a similar circumstance, the Hon’ble Supreme Court in Union of India and Ors. Vrs. V.K. Tripathi reported in (2019) 14 SCC 646, has held that a child of a second wife of an employee could not be denied for compassionate appointment on that ground alone and the said Judgment was followed in subsequent Judgments of the Hon’ble Supreme Court viz., in Mukesh Kumar and Ors. Vs. the Union of India (UOI) and Ors. reported in MANU/SC/0232/2022. The relevant portions are extracted hereunder:—

“14. 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 Article 14 of the Constitution....

16. The issue essentially is whether it is open to an employer, who is amenable to Part III of the Constitution to deny the benefit of compassionate appointment which is available to other legitimate children. Undoubtedly, while designing a policy of compassionate appointment, the State can prescribe, the terms on which it can be granted. However, it is not open to the State, while making the scheme or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The purpose of compassionate appointment is to prevent destitution and penury in the family of a deceased employee.

The effect of the circular is that irrespective of the destitution which a child born from a second marriage of a deceased employee may face, compassionate appointment is to be refused unless