ORDER

(Pronounced by The Hon'ble Mr. M. Swaminathan, Judicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:- “ to call for the records of the respondent herein in No.M/PB/CS/22/121/2012 dated 01.06.2015 and to set aside the same and consequently directs the respondent to appoint the eldest son of the applicant in any suitable post on compassionate basis and pass such further and other orders as may deemed fit and proper and thus render justice.”

2. Brief facts of the case as submitted by the applicant are as follows:

The Applicant is the legally wedded wife of the deceased claiming appointment for her 1st Son in Group D post on compassionate grounds.

The Applicant’s 1st son possesses the educational qualification of 8th standard discontinued. The Applicant's deceased husband, P. Prakasam was working as Sr. Trackman and died in harness on 03.08.2011 leaving behind the applicant, 2 sons and a daughter as dependants and she made a representation dated 23.09.20211 to the respondents requesting to appoint her eldest son P. Pradap who was studying 10th standard privately then. The same was not considered and finally similar representation was given on 19.09.2014 along with necessary documents. The Applicant submits that to her shock and surprise on 01.06.2015, she received a reply from the respondents stating denying appointment on compassionate ground to her elder son. The reason for the denial was that the applicant was married to the deceased husband without dissolving the marriage by him with one Sulochana. Hence, as per Railway Board’s extant instruction appointment on compassionate grounds to 2nd wife and her children are not to be considered unless the administration permitted the second marriage.

hence the present Original Application.

3 Heard the learned counsel for the Applicant M/s. R. Syed Mustafa and the learned counsel for the Respondent ,Mr. Krishnaswamy for Mr. K. Rajendran and perused the pleadings and the materials placed on record.

4. Argument of the Applicant The learned Counsel for the applicant submitted that one Premalatha, D/o Sulochana filed a Suit in OS No.198 of 2011 before the Hon’ble Principal District Munsiff Court, Ambur to declare that she alone is the legal heir of the deceased P. Prakasam and the same was dismissed for default on 11.07.2014.

4.1 The Counsel further submitted that the applicant have filed a Suit in OS No.131 of 2012 before the Hon’ble Principal District Munsiff court, Ambur to declare them as legal heirs and the same was decreed on 25.07.2014. The same has become final and not challenged by the said Premalatha and this was also intimated to the respondents. Despite the same the respondents have passed the order of rejecting the applicant's claim for appointment to the eldest son on compassionate ground.

4.2 The Counsel further submitted that the eldest son has fulfilled all the conditions prescribed for compassionate appointment but the respondent has denied the appointment on baseless grounds. Therefore, the rejection by the respondents is highly arbitrary and unwarranted.

4.3 The Counsel further submitted that the respondent while following the extant guidelines of the Railway Board ought to have kept in mind the catena of Judgements of the Hon’ble Apex court and various High Courts upholding the legitimacy of the children born out of second marriage during the subsistence of the first marriage and their entitlement to the estate of their father. He further contended that Section 16 of the Hindu Marriage Act specifically stated that children of a void marriage are legitimate. When such being the case, the respondent ought to have given appointment to the eldest son of the applicant on compassionate ground.

He relied on the decision of the Hon’ble Apex court reported in (2019) 14 SCC 646 & the decision of the Hon’ble Madras High court reported in (2017) SCC OnLine M