Suraj Singh vs State Of Uttarakhand And Others
2023 Latest Caselaw 100 UK

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


                Writ Petition (S/S) 826 of 2022


Suraj Singh                                       ............ Petitioner

                                   versus

State of Uttarakhand and others                     ........Respondents


Present:

Mr. Prashant Khanna, learned counsel for the petitioner.
Mr. M.S. Bisht, Brief Holder for the State/ respondent nos. 1 to 3.
Mr. Mahavir Kohli, learned counsel for the private respondents. .



Hon'ble Manoj Kumar Tiwari, J. (Oral)

Petitioner's father, late Arjun Singh, was serving as Assistant Teacher in a Government Junior High School in District Rudraprayag, who died while in service on 02.11.2018. Petitioner applied for compassionate appointment. His application has, however, been rejected by Additional Director, Elementary Education, Garhwal Division, Pauri vide order dated 6th August, 2020. Thus, feeling aggrieved by rejection of his claim, petitioner has approached this Court.

2. Petitioner's claim for compassionate appointment has been rejected on the ground that his father had not obtained permission from the Competent Authority for contracting second marriage. Another ground, which has been taken for rejecting petitioner's claim, is that although both the wives of late Arjun Singh have arrived at a settlement and they have given NOC in favour of the petitioner for his

compassionate appointment, however, the affidavit, which has been submitted by them supporting petitioner's claim, is not issued by the competent authority.

3. Learned Standing Counsel submits that although petitioner's claim is not rejected on the ground that he was born out of second marriage, however, he submits that since petitioner's father contracted second marriage while the first marriage was subsisting, therefore, petitioner's claim for compassionate appointment was rightly rejected.

4. It is well settled that a child, who is born out of a void marriage, cannot be termed as 'illegitimate'. Section 16 of the Hindu Marriage Act, 1955 deals with the question of legitimacy of void and voidable marriages and is being reproduced herein below:

"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.

(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.]"

5. Hon'ble Supreme Court in the case of Union of India and another vs. V.R. Tripathi, reported in (2019) 14 SCC 446, has considered and discussed the

entire law on the point. Relevant extract of the said judgment is reproduced below:

"16. In sub-section (1) of Section 16, the legislature has stipulated that a child born from a marriage which is null and void under Section 11 is legitimate, regardless of whether the birth has taken place before or after the commencement of Amending Act 68 of 1976. Legitimacy of a child born from a marriage which is null and void, is a matter of public policy so as to protect a child born from such a marriage from suffering the consequences of illegitimacy. Hence, though the marriage may be null and void, a child who is born from the marriage is nonetheless treated as legitimate by sub-section (1) of Section 16. One of the grounds on which a marriage is null and void under Section 11 read with clause (i) of Section 5 is that the marriage has been contracted when one of the parties had a spouse living at the time of marriage. A second marriage contracted by a Hindu during the subsistence of the first marriage is, therefore, null and void. However, the legislature has stepped in by enacting Section 16(1) to protect the legitimacy of a child born from such a marriage. Sub-section (3) of Section 16, however, stipulates that such a child who is born from a marriage which is null and void, will have a right in the property only of the parents and none other than the parents.

14. 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 the second marriage was contracted with the permission of the administration. Once Section 16 of the Hindu Marriage Act, 1955 regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionate appointment. Such a condition of exclusion is arbitrary and ultra vires."

6. In view of the aforesaid legal position, the contention raised by learned Standing Counsel regarding petitioner's right to seek compassionate appointment has no force.

7. Petitioner's claim has been rejected on the ground that petitioner's father did not obtain permission from the departmental authorities for marrying second time. Bigamy is a prohibited by law therefore no authority can grant permission for marrying second time during subsistence of first marriage. Thus the ground taken for rejecting petitioner's claim is unsustainable.

8. As regards the second ground for denying petitioner's claim, since petitioner has entered into a settlement with his stepmother and his stepmother has given NOC in favour of petitioner for his compassionate appointment, therefore, the second ground for rejecting his claim also cannot be sustained in the eyes of law.

9. Accordingly, the writ petition is allowed. Impugned rejection order dated 06.08.2020 passed by Additional Director, Elementary Education, Pauri Garhwal, is quashed. Petitioner shall file fresh Notarized Affidavit of his stepmother as well as his biological mother before the Competent Authority within ten days. The competent Authority shall re- consider petitioner's claim and pass appropriate order, as per law, within a period of four weeks.

(Manoj Kumar Tiwari, J.) 07.01.2023

Kaushal