Madras High Court
M.Raja vs The Director Of College Education on 30 September, 2021
W.P.(MD).No.13320 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
W.P.(MD).No.13320 of 2014
and
M.P(MD)No.2 of 2014
and
W.M.p(MD)No.8625 of 2016
M.Raja .. Petitioner
Vs.
1.The Director of College Education,
Chennai.6
2.The Principal,
Raja Sarboji Government College,
Thanjavur. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, for
the issuance of Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned proceedings passed by the first respondent in Na Ka
No.7058/B1/2013 dated 14.07.2014 and consequent proceedings of the 2nd
respondent in Na Ka 726/C 2014 dated 25.07.2014 and quash the same and
consequently direct the respondents to reinstate the petitioner into service and
regularise his service from the date of his appointment with all attendant
benefits.
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1/17
W.P.(MD).No.13320 of 2014
For Petitioner : Mr.Kannan
For R1 : Mr.M.Lingadurai
Government Advocate
ORDER
This writ petition is filed for issuance of a Writ of Certiorarified
Mandamus to quash the impugned order passed by the first respondent in Na
Ka No.7058/B1/2013 dated 14.07.2014 and consequent proceedings of the
second respondent in Na Ka 726/C 2014 dated 25.07.2014 and consequently
direct the respondents to reinstate the petitioner into service and regularize his
service from the date of his appointment.
2.It is stated that the petitioner's father by name Muthukrishnan was
appointed as Lab Assistant in the office of the second respondent in the year
1963, at that time the college was run by a Private Management. Subsequently,
the second respondent college was taken over by the Tamil Nadu Government
in the year 1965 and it is admitted that the college is now run by the
Government of Tamil Nadu.
2(i).The petitioner's father died on 07.03.2000, while he was in
service as Store Keeper, leaving behind his first wife by name Raniammal @
Gnanammal and the petitioner's mother, who is the second wife, the petitioner
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W.P.(MD).No.13320 of 2014
and his two sisters, who are the children of Muthukrishnan, born through his
second wife.
2(ii).After the death of the petitioner's father, the petitioner submitted
an application seeking appointment on compassionate ground. Since the first
wife by name Raniammal gave an application for getting retirement benefits,
the second respondent approached the Court to recognize the second wife
before making her eligible for getting retirement benefits. The petitioner filed
an application for succession certificate in O.P.No.40 of 2012 before the
Principal Subordinate Court, Thanjavur. The succession certificate was granted
to the petitioner, based on the compromise between the parties. Thereafter, the
petitioner made an application to the second respondent for getting a job on
compassionate ground. After considering the succession certificate, the first
respondent appointed the petitioner as Junior Assistant in the second
respondent college, by order dated 30.11.2010. The petitioner also joined in the
second respondent college as Junior Assistant and continued in service. When
the proposal for regularization of service of the petitioner was sent to the first
respondent by the second respondent, the first respondent returned the same for
want of some particulars. Thereafter, the first respondent by the impugned order
14.07.2014 terminated the service of the petitioner on the ground that his
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W.P.(MD).No.13320 of 2014
appointment on compassionate ground, was contrary to G.O.Ms.No.34 Labour
and Employment Q1 Department, dated 16.04.2002. The reason for denying
regularization is that the petitioner is the son of the deceased employee through
the second wife and that therefore, the petitioner is not entitled for a job on
compassionate ground. Pursuant to the order of the first respondent , the second
respondent terminated the service of the petitioner as Junior Assistant by citing
the impugned order passed by the first respondent, dated 14.07.2014.
3.The learned counsel appearing for the petitioner submitted that the
petitioner, who is the son of the deceased Government employee is a dependent
and entitled to succeed to the estate of the deceased, even though he is a son
born through an invalid marriage of the deceased. The learned counsel also
relied upon a few judgments of this Court to support his contention. In the case
of N.PANNEERSELVAM -VS- THE SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT SECRETARIAT, CHENNAI, reported in
2008(6) CTC 806, this Court has held as follows:
“5. Law is well settled that even if the second marriage
of the petitioners father is void, as per Te Hindu Marriages Act, the
children born through such void marriage cannot be held to be
illegitimate. In the factual situation here, the first respondent itself
has admitted that in respect of the pension and DCRG, which are
property rights the petitioner is conferred such right by treating
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W.P.(MD).No.13320 of 2014
him as legal heir of the erstwhile employee of the first respondent.
In such circumstances, the strange conclusion by the first
respondent that the petitioner would not be entitled for
compassionate appointment simply because his father has married
the second wife which is a void marriage. Such reason is absolutely
not sustainable.
6. In this context, it will be useful to refer to a Division
Bench Judgment, headed by Mr. Justice S.J.Mokhopadhaya and Mr.
Justice V.Dhanapalan, in the case of H.Anwar Basha v. Registrar
General (Incharge) reported in (2008) 5 MLJ 795 wherein it is held
by relying upon the various other earlier judgments of the Apex
Court as well as this Court that what is required to be considered
for compassionate ground appointment is that the petitioner is a
dependent of the deceased Government Servant. It is also held that
the son of the deceased person remains to be the son whether he is
legitimate or illegitimate son of the parents. The illegitimacy of the
marriage between the petitioners father and the petitioners mother
cannot stand as a stumbling block for the dependent to get
employment. The Division Bench has held as follows:-
I. Even on assuming that the marriage is irregular or
void, if the petitioner is a dependant of the deceased
Government Servant, he would be entitled for the benefit.
II. The eligibility criteria prescribed to get employment
assistance to families of the deceased Government
Servants would make it clear that the dependants of the
deceased Government Servant include the son and it
does not denote whether the son should be legitimate or
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W.P.(MD).No.13320 of 2014
illegitimate son of the parents III. In order to achieve the
object of providing employment assistance to the
bereaved family, it would be necessary to examine
whether the dependant is supporting the family to
mitigate the sufferings of that family, relieving the
bereaved family from the indigent circumstances.
Therefore when the object is met, the question of whether
the delinquent dependent is a legitimate or illegitimate
legal heir cannot be a stumbling block for the dependant
to get employment.
7. Another Division Bench of this Court in the case of
Geetha Ramani v. The District Educational Officer, Kancheepuram,
reported in (2004) 4 M.L.J. 177 presided over by Mr. Justice
P.K.Misra and Mr. Justice S.R.Singharavelu, while referring to the
Government Order in G.O.Ms.No.560 dated 03.08.1997 wherein it
is made clear that the compassionate appointment shall not be
extended to the children born to a second wife. The Division Bench
has held as follows:-
The intention under the G.O. issued for employment on
compassionate ground is to give protection to the
members of the family of the deceased employee. By no
stretch of imagination, it can be stated that the children
born through the second wife, even though the second
marriage is void, are not members of such family.
8. Another un-reported judgment of this Court in the case
of K.Velankannan v. The Government of Tamil Nadu and two others
in W.P.No.16211 of 2007, dated 30.08.2007 by Mr. Justice
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W.P.(MD).No.13320 of 2014
Chockalingam by referring to similar G.O.Ms.No.34, Labour and
Employment/01 Department dated 16.04.2002 this Court has held
that there cannot be two criteria for the purpose to give protection
for Family Pension and DCRG and deny the same for
compassionate appointment. In the said decision in paragraph 6 it
is held as follows:-
6. Contrary to the above, learned counsel for the State
would submit that in the instant case, it is an admitted
fact that the petitioner is the son of the deceased
employee through his second wife and in the G.O.Ms.No.
34 Labour and Employment/01 Department dated
16.04.2002, it is made clear that the children born out of
the void marriages are entitled for the benefit in respect
of the property of the deceased Government Servant i.e.,
Family Pension and Death-cum-Retirement Gratuity and
that compassionate appointment cannot be equated to the
status of the property of the deceased. Under such
circumstances, while it is an admitted fact that he is the
son through the second wife, he is not entitled to have the
appointment, but he got appointment. Hence, the
cancellation of appointment made by the second
respondent was perfectly correct and it has got to be
dismissed.
4.Again, in an unreported judgment of this Court by a learned Single
Judge dated 23.06.2014 in W.P.No.34961 of 2013, in the case of
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W.P.(MD).No.13320 of 2014
C.BANUMATHI -VS- THE ASSISTANT DIRECTOR, HEALTH
SERVICES, HEALTH DEPARTMENT AND OTHERS, it is held as follows:
“33.In fact, learned Government Advocate produced
another clarification letter in Letter(Ms) No.34, Labour and
Employment (Q1) Department, dated 16.04.2002. The letter
dated 16.04.2002, excludes the claim of the compassionate
appointment to the illegitimate children, while they are entitled
for other benefits such as DCRG and family pension. I am not in
agreement with the aforesaid Letter of the Labour and
Employment Department, dated 16.04.2002, in view of the
judgments cited by the learned counsel for the third respondent
and in fact, learned counsel for the petitioner has not disputed
the claim of the children of the third respondent and he only
claims that the compassionate appointment shall be provided to
the children of the petitioner, since the third respondent is in
Government service and the petitioner and her family members
are entirely depending on the earnings of the deceased
Chandran.”
5.Again, a Division Bench of this Court by order dated 12.09.2016 in
W.P.No.36158 of 2015 in the case of UNION OF INDIA REP. BY THE
GENERAL MANAGER SOUTHERN RAILWAY, MADURAI AND OTHERS
-VS- S.VENNILA AND ANOTHER, has held as follows:
“10.In the instant case, admittedly, the first
respondent/applicant is none other than the second wife of the
deceased L.Somu. The third writ petitioner has rejected the claim
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W.P.(MD).No.13320 of 2014
of the first respondent mainly on the ground that she is not the
legally wedded wife of the deceased L.Somu. It is a settled
principle of law that as per Section 16 of the Hindu Marriage
Act, 1955, the children born through second marriage have
become legitimate. Under the said circumstances, the son of the
first respondent/applicant is legally entitled to get an
appointment on compassionate ground.
6.In yet another judgment of this Court by a learned Single Judge in
W.P(MD)No.6007 of 2012 dated 16.03.2017 in the case of E.GANESAN -VS-
THE STATE OF TAMIL NADU, REPRESENTED BY ITS SECRETARY TO
GOVERNMENT, RURAL DEVELOPMENT DEPARTMENT AND
OTHERS, it is held as follows:
“2.Challenging the rejection of the compassionate
appointment on the ground that the petitioner being a son through
the second wife of deceased S.Essakki, who was working as a
office Assistant in Rural Development Department, Koripalayam
Panchayat Union, the petitioner has come forward with this writ
petition. The issue, whether the children born through the second
marriage are entitled to be considered for compassionate
appointment is no longer Res integra. This Court had in several
cases has held that children born through second marriage are
also presumed to be legitimate children, in view of Section 16 of
the Hindu Marriage Act. In the Division Bench judgment of this
Court reported in 2008(5)MLJ 795(H.Anwar Basha vs. Registrar
General 9in charge), it has been held even on assuming that the
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W.P.(MD).No.13320 of 2014
marriage is irregular or void, the children would be entitled to be
considered for compassionate appointment, if he/she satisfied
other prescribed parameters. The said view has been followed by
this Court in the judgment reported in 2009(1) MLJ 54
(N.Panneerselvam vs.Secretary to Government, Public Works
Department, Chennai and others).”
7.The issue is again considered in another judgment of this Court in
W.P(MD)No.8592 of 2009 dated 17.04.2018, wherein it is held as follows:
“16.As the law is well settled, as held in the said
judgement, as far as the children born through the illegitimate
marriages is concerned, they would be entitled for the benefits
for compassionate appointment on the ground that the
illegitimate son or daughter can also be the legal heir of the
deceased Government employee. Therefore, considering all
these aspects and the law laid down in this regard, as has been
held in the aforesaid cases, this Court is of the clear and
considered view that, the impugned order shall not stand in the
legal scrutiny and is liable to be quashed and accordingly, it is
quashed. It is submitted that during the pendency of the writ
petition, the petitioner is having the benefit of stay of the
impugned order. Accordingly he is continued to work.
8.Referring to the judgment of the Hon'ble Supreme Court, in the
case of UNION OF INDIA AND OTHERS -VS- K.P.TIWARI, reported in
(2003) 9 Supreme Court Cases 129, the learned counsel submitted that the
petitioner, who was appointed in the year 2010 and continued in service for
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W.P.(MD).No.13320 of 2014
more than 11 years, cannot be terminated and it is not appropriate to disturb the
petitioner after this length of time. It is pointed out that there was no
suppression of facts.
9.The learned counsel then referred to G.O.(Ms).No.18, Labour and
Employment (Q1) Department, dated 23.01.2020, and submitted that the
Government Order does not disable the son born through the second wife to get
employment on compassionate ground. This Court has also independently
considered the eligibility of the illegitimate son born through the second wife to
get appointment on compassionate ground.
10.Section 16 of the Hindu Marriage Act, which reads as follows:
“Section 16 of the Hindu Marriage Act, 1955:-
[ 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.
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W.P.(MD).No.13320 of 2014
(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.]
Section 16(2) of Hindu Marriage Act, preserves the rights of a son born through
the second wife to claim legitimate right as a legal heir to the property of his
father. The petitioner has to be treated as a legitimate son of his father to inherit
the personal property of father. As a dependent also he has every right to seek
compassionate appointment.
11.Having regard to the settled law with regard to the status of the
son born through the second wife, this Court is unable to sustain the impugned
order by which the petitioner's right to seek compassionate appointment was
denied. As it has been held in several precedents, the petitioner is entitled to
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W.P.(MD).No.13320 of 2014
seek compassionate ground as a rightful heir and dependent of the petitioner's
father. It is to be noted that the children born though the second marriage shall
be considered as legitimate children, by virtue of Section 16 of the Hindu
Marriage Act. The Division Bench of this Court, cited earlier has recognized
the right of illegitimate children to seek compassionate appointment as a
dependent of the deceased Government employee. In such circumstances, this
Court has no hesitation to hold that the impugned order is contrary to the law
settled with regard to the status of the petitioner.
12.The learned Government Advocate appearing for the first
respondent submitted that the petitioner has not produced any record. This was
never an issue, when the petitioner was given appointment on compassionate
ground. The learned Government Advocate relied upon the letter, which was
also referred to in the impugned order. The letter of Government dated
16.04.2002, reads as follows:
“It has now been brought to the notice of the
Government for clarification by various Departments to whether
children of the deceased Government Servants born through
unlawful second marriage/wife are eligible for compassionate
ground appointment. The matter has been examined in detail. It
is considered that children born out of void marriage are entitled
for the benefit in respect of the property of the deceased
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W.P.(MD).No.13320 of 2014
Government Servant ie., family pension and Death-cum-
Retirement, Gratuity and that Compassionate appointment
cannot be equated to the status of the property of the deceased.
As such, the word 'son or unmarried daughter' as used in the
scheme of compassionate appointment has to be construed only
to mean son or daughter born through lawful wedlock.”
13.The interpretation is that the children born out of void marriage
may be entitled to inherit the property of the deceased Government Servant but
claim for Compassionate appointment cannot be equated to the property of the
deceased. When the petitioner's claim as a dependent of the deceased is
establilshed, there is no impediment for the respondents to consider the
eligibility of the petitioner to get or seek appointment on compassionate
ground. The Government letter appears to be misconceived having regard to the
object behind appointment on compassionate ground. The view expressed in
the Government letter is contrary to the well settled principles. The
Government letter does not reflect any policy decision of Government. But an
attempt to distinguish the right to inherit property so as to say getting
compassionate appointment as a legal heir is different. This executive order has
no support from any order of the Government. It is now brought to the notice
of this Court that the Government has issued G.O.Ms.No.18 Labour and
Employment (Q1) Department, dated 23.01.2020. The said G.O., specifically
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W.P.(MD).No.13320 of 2014
refers to the legal heirs, who are eligible for getting compassionate
appointment. There is no specific reference to legal heirs through second or
void marriage. In other words, from the reading of the said G.O., this Court is
unable to disqualify the petitioner for giving appointment on compassionate
ground. Therefore, this Court is unable to accept the argument of the learned
Government Advocate referring to the Government letter which is contrary to
the principles followed in several precedents.
14.As a matter of fact, the petitioner has not suppressed any fact
before the authorities, when he sought for appointment on compassionate
appointment. When the factum of marriage was never an issue earlier, it is not
open to the respondents to raise an issue with regard to proof of marriage.
15.For all the above reasons, the order impugned in the present writ
petition is quashed. Consequently, the writ petitioner is also entitled to
regularization as prayed for. It is admitted that the petitioner is in employment,
pursuant to the order granted by this Court and he is continuing in service.
Hence, this Court has not given any direction for reinstatement. However, the
first respondent is directed to regularize the service of the petitioner from the
date of his original appointment with all attendant and monetary benefits,
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W.P.(MD).No.13320 of 2014
within a period of twelve weeks from the date of receipt of a copy of this order.
No costs. Consequently, connected miscellaneous petitions are closed.
30.09.2021
Index : Yes / No
Internet: yes / No
Ns
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized
for official purposes, but, ensuring that the copy of the
order that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
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W.P.(MD).No.13320 of 2014
S.S. SUNDAR, J.,
Ns
To
1.The Director of College Education,
Chennai.6
W.P.(MD).No.13320 of 2014
and
M.P(MD)No.2 of 2014
and
W.M.p(MD)No.8625 of 2016
30.09.2021
https://www.mhc.tn.gov.in/judis/
