K.Balakrishnan v. The Government of Tamilnadu rep. by the Secretary Rural Development Department Fort St.George, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.3.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.7560 of 2003K.Balakrishnan.. PetitionerVs.1. The Government of Tamilnadu rep. by the Secretary Rural Development Department Fort St.George, Chennai-9.2. The Collector of Cuddalore District, Old District Board Buildings, Cuddalore-1.3. The Commissioner Panchayat Union Mangalur, Cuddalore District... RespondentsPRAYER: Petition under Article 226 of the Constitution of India forissue of a writ of Certiorarified Mandamus to call for the records ofthe first respondent in his impugned letter No.34561/E/6/2002-5,dated 10.12.2002, to quash the same and to direct the respondentsherein to appoint the petitioner herein on compassionate grounds inany of the Departments.For Petitioner:Mr.Kannanfor M/s.P.V.RangaraajanFor Respondents:Mrs.Malarvizhi UdayakumarSpl. Government Pleaderfor respondents 1 and 2Mr.V.Subbarayanfor 3rd respondent ORDERThe petitioner is the son of Late S.Kaliyaperumal, who worked asa Higher Grade Assistant Teacher in V.Kudikadu Panchayat UnionElementary School of Cuddalore District. The said S.Kaliyaperumaldied on 15.8.1975, while in service under the third respondent. https://hcservices.ecourts.gov.in/hcservices/

2. As per the scheme introduced in G.O.Ms.No.225, LabourDepartment, dated 15.2.1972, the petitioner is stated to be entitledfor employment on compassionate grounds. It is seen that when anapplication was made to the third respondent on 9.7.1997, the thirdrespondent scrutinized the records and recommended to the secondrespondent for providing a job, by his letter dated 21.9.1997. Itappears that the second respondent/District Collector also, in histurn, has made his recommendation to the first respondent on26.6.1999. Thereafter, there was no order passed and after acomplaint was sent to the Chief Minister's Cell also there was nostep taken by the respondents and the petitioner, therefore,approached the Tamil Nadu Administrative Tribunal by filingO.A.No.6741 of 2001. However, the said Original Application wasdismissed by the Tribunal on 18.10.2001, stating that the petitioneris not eligible. 3. It was against the above said order of the Tribunal that thepetitioner approached this Court by filing W.P.No.32521 of 2002 andthe First Bench of this Court, by order dated 8.8.2002, directed thefirst respondent to consider the request of the petitioner inaccordance with law. It was thereafter, by the impugned order dated10.12.2002, the first respondent rejected the claim of the petitioneron the basis that the petitioner was born to Late S.Kaliyaperumalthrough the second wife and there is no provision for providingcompassionate appointment to children born through second marriage.It is as against the impugned order, the present writ petition isfiled.4. The learned counsel for the petitioner, Mr.Kannan, wouldsubmit that the order, as such, is not maintainable due to the soleground that the reason adduced in the impugned order, that the sonborn through the second wife of the deceased employee is not entitledto compassionate appointment, is totally wrong, in the sense thateven the son born to an illegitimate wife has a right to beconsidered as a legal heir of the deceased employee.5. In N.Panneerselvam v. Secretary to Government, Public WorksDepartment, Chennai and Others, (2009) 1 MLJ 54, while considering asimilar issue, this Court has held that even children born throughillegitimate marriage are entitled to the benefits as the legal heirsof the deceased employee and they cannot be denied the right ofcompassionate appointment. This Court, after referring to ajudgment of the Division Bench of this Court in H.Anwar Basha v.Registrar General (Incharge), (2008) 5 MLJ 795, has held as follows:"5. Law is well settled that even if the second marriageof the petitioner's father is void, as per the HinduMarriages Act, the children born through such voidmarriage cannot be held to be illegitimate. In the https://hcservices.ecourts.gov.in/hcservices/ factual situation here, the first respondent itself hasadmitted that in respect of the pension and DCRG, whichare property rights, the petitioner is conferred suchright by treating him as legal heir of the erstwhileemployee of the first respondent. In suchcircumstances, the strange conclusion by the firstrespondent that the petitioner would not be entitled forcompassionate appointment simply because his father hasmarried the second wife which is a void marriage. Suchreason is absolutely not sustainable."6. The Division Bench of this Court in H.Anwar Basha v.Registrar General (Incharge), referred supra, while deciding theratio in cases of this nature, has prescribed three points to befollowed for providing compassionate appointment, which are asfollows:"I. Even on assuming that the marriage is irregular orvoid, if the petitioner is a dependent of the deceasedGovernment Servant, he would be entitled for the benefit.II. The eligibility criteria prescribed to getemployment assistance to families of the deceasedGovernment Servants would make it clear that thedependents of the deceased Government Servant includethe son and it does not denote whether the son should belegitimate or illegitimate son of the parents.III. In order to achieve the object of providingemployment assistance to the bereaved family, it wouldbe necessary to examine whether the dependent issupporting the family to mitigate the sufferings of thatfamily, relieving the bereaved family from the indigentcircumstances. Therefore when the object is met, thequestion of whether the delinquent dependent is alegitimate or illegitimate legal heir cannot be astumbling block for the dependent to get employment."7. Similar view was also taken by another Division Bench of thisCourt in Geetha Ramani v. District Educational Officer, Kancheepuram,(2004) 4 MLJ 177. 8. In view of the settled legal position, there is no difficultyto conclude that even children born through void marriage cannot berejected as illegitimate. Of course, as submitted by the learnedcounsel for the petitioner, in the present case, it is not as if LateS.Kaliyaperumal married the mother of the petitioner as second wifeduring the life time of his first wife. As submitted, it was onlyafter the death of the first wife, Late S.Kaliyaperumal married the https://hcservices.ecourts.gov.in/hcservices/ mother of the petitioner. In that view of the matter also it cannotbe held that the marriage is illegitimate.9. In these circumstances, the reasons adduced in the impugnedorder for rejecting the claim of the petitioner are not sustainableand therefore, this writ petition stands allowed and the impugnedorder is set aside, with a direction to the first respondent toconsider the claim of the petitioner for the purpose of appointmenton compassionate ground and pass appropriate orders granting therelief, expeditiously, in any event within a period of four weeksfrom the date of receipt of a copy of this order. No costs.Consequently, W.P.M.P.No.1583 of 2008 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsasiTo:1. The Secretary Government of Tamilnadu Rural Development Department Fort St.George, Chennai-9.2. The Collector of Cuddalore District, Old District Board Buildings, Cuddalore-1.3. The Commissioner Panchayat Union Mangalur, Cuddalore District.1 cc To The Government Pleader, SR.11289.1 cc To Mr.P.V.Rangarajan, Advocate, SR.10731.W.P.No.7560 of 2003 LA(CO)RVL 06.04.2009