Children of second wives in void marriages are legitimate and entitled to compassionate appointment, as established by the Supreme Court.

ORAL ORDER

Per: Justice M.G. Sewlikar, Member (J)

This is an application seeking compassionate appointment.

2. Case of the applicant in short is that father of the applicant by the name of Yesu Hari Bhagat was an employee of the respondents who died in harness on 24th November, 2005. The applicant is the son from the second wife of the deceased Yesu Hari Bhagat (deceased employee). It is not disputed that the deceased employee had married the mother of the applicant during the subsistence of the first marriage of the deceased employee. The date of birth of the applicant is 09^th August, 1991.

3. At the time of the death of the deceased employee, the applicant was minor and, therefore, he filed application for compassionate appointment on 10^th August, 2009 i.e. on attainting majority. According to the applicant, he did not receive any communication from the respondents and, therefore, he had filed Writ Petition in High Court bearing no. 1652/2022 in which vide order dated 27th June, 2022, the High Court directed the respondents to take a decision on the representation which was then pending on its own merits and in accordance with law and policy, preferably within four months. The respondents decided the representation of the applicant on 23rd September, 2022 and communicated the applicant that his appointment on compassionate ground cannot be considered as he is the son of second wife. The applicant had challenged this order before High Court by preferring Writ Petition No. 5149/2022 which was withdrawn with liberty to approach this Tribunal. This order was passed on 13^th July, 2023. This is how the applicant is before this Tribunal.

4. The respondents filed their affidavit in reply contending that the deceased employee died on 24^th November, 2005 in harness leaving behind him two wives. First wife expired on 03rd August, 1999. The applicant was born on 09th August, 1991. They contend that applicant being son of the second wife and as per the circular of the respondents, children of second wife during subsistence of first marriage are not entitled to claim compassionate appointment. On the basis of the judgment of the Supreme Court in the matter of Union of India versus V.R. Tripathi in Civil Appeal No. 12015 of 2018 (Supreme Court) dated 11^th December, 2018, the respondents issued a circular which is prospective in nature. On the basis of this circular, compassionate appointment can be granted to the children of second wife. They contend that when the cause of action for the applicant arose, earlier circular was in vogue by virtue of which children of second wife were not entitled to compassionate appointment.

5. I have heard learned counsel for the applicant and learned counsel for the respondents.

6. Learned counsel for the applicant submits that the right of children of second wife has been recognized by the Supreme Court in the matter of V.R. Tripathi (supra). He submits that soon after the applicant attained the age of majority, he made application to the respondents for appointment on compassionate grounds. For 18 years he did not receive any response from the respondents. As a result of which, he approached Bombay High Court by preferring Writ Petition No. 1652/2022 in which the respondents were directed to decide the representation within four weeks. Accordingly, respondents decided the representation but rejected his application. He contends that the rejection is improper as the applicant is entitled to be considered for appointment on compassionate grounds being the sone of second wife.

7. Learned counsel for the respondents submits that the applicant did not make application soon after he attained the age of majority but he filed the application on 23rd May, 2018. She contends that this application is filed after 9 years after attaining the age of majority. This application was decided on 12^th December, 2018 and it was communicated to the applicant that he was not entitled to compassionate appointment on the count that he