Judgment : .1. The challenge in this Writ petition is to the order dated 112. 1999 on the file of the third respondent, where by and where under, the Application submitted by the petitioner for compassionate appointment in the Electricity Board was rejected on the sole ground that the petitioner being the son, born in the second marriage of the deceased employee is not entitled for such appointment. .Background Facts: 2. The father of the petitioner by name Mr. N. Ramasamy was working as a Line Man in the Tamil Nadu Electricity Board. He died on 12. 1985 leaving the petitioner and other as legal representatives. Since there was a scheme in operation in the Tamil Nadu Electricity Board to give appointment on compassionate ground to the legal representatives, the petitioner made an Application after attaining 20 years of age. The Application was not made immediately after the death of his father, as according to him, he was only 8 years old at the time of death. The legal Heir Certificate dated 11. 1999 issued by the Tahsildar was also produced along with the Application to show that the petitioner is a legal representative of the deceased employee. 3. Subsequently, the second respondent as per proceedings dated 2. 1999 called upon the petitioner to rectify certain defects in the Application submitted by him. Accordingly, those defects were rectified and the petitioner has resubmitted the Application on 14. 1999. 4. The first wife of the deceased Ramasamy by name Kullammal @ Saaki also given her consent to the third respondent intimating them that she has no objection in giving compassionate appointment to the petitioner as he is the only surviving male member in the family. 5. Though, the petitioner has submitted series of representations, the matter was not looked in to by the respondents. Ultimately, as per proceedings dated 112. 1999, the third respondent rejected the claim on the ground that the petitioner is the son of the second wife of the deceased and as such, he is not entitled for appointment on compassionate ground. It is the said order, which is impugned in the Writ petition. .6. The third respondent has field a counter in answer to the contentions raised in the petition. It is the said order, which is impugned in the Writ petition. .6. The third respondent has field a counter in answer to the contentions raised in the petition. The third respondent justified the impugned order solely on the ground that the Application for compassionate appointment was made belatedly and as such the petitioner is noted entitled for an order of appointment. Hover, the validity of the reason as found in the impugned order has not been answered by the third respondent. In short, the third respondent justified the order on the ground that it was hopelessly barred by limitation. .Discussion : .7. There is no dispute that the petitioner is the son born in the second marriage of deceased N. Ramasamy who was working as a Line Man in the Tamil Nadu Electricity Board and died on 12. 1985. The petitioner has made an Application for compassionate appointment as per the scheme and he has also enclosed a consent letter from the first wife of Mr. N. Ramasamy, wherein it was indicated that she no objection in giving compassionate appointment to the petitioner. The Application was processed by the Second respondent and since there were certain defects in the Application, the second respondent asked the petitioner to rectify the same and after rectification, it was resubmitted. By way of impugned order, the Application was rejected solely on the ground that the petitioner, being the son born in the second marriage, is not entitled for order of appointment on compassionate ground. The third respondent has not indicated in the counter affidavit about the relevant Regulation framed by the Tamil Nadu Electricity Board to the effect that the appointment would be given only to the children born in the first marriage. There is nothing indicated in the appointment order also that the son born in the second marriage is not entitled to claim appointment on compassionate ground on the basis of a particular Regulation. .8. It is true that Section 5 of the Hindu Marriage Act, 1955 prohibits a marriage were either party thereto has a spouse living at the time of the second marriage. However, section 16 of the Hindu Marriage Act is an exception which provides that children born in such a marriage would be entitled to succeed to the estate. Section 16 would read thus: .“16. However, section 16 of the Hindu Marriage Act is an exception which provides that children born in such a marriage would be entitled to succeed to the estate. Section 16 would read thus: .“16. Legitimacy of children of void and voidable marriages.- (1) Notwithstanding that a 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, and whether or not 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.” 9. Therefore, a legal fiction has been created and the benefit of such fiction would enure to the benefit of the children born in the second marriage even during the subsistence of the first marriage. 10. The Supreme Court in M. Yogendra and others V. N. Leelamma and others, 2009 (5) CTC 170 : 2009 (2) Scale 165, indicated that even the son born in the second marriage would not inherit as a coparcener and his case would be covered under the General Rule of Succession as per Section 8 of the Hindu Succession Act. 11. The respondents have not produced any of their guidelines, in support of their contention that the children born in the first marriage alone are entitled for appointment on compassionate ground. The validity of such a prescription could be tested only in a case where such a contention has been taken by the respondents and in such a situation, the question would arise as to how such a condition could be incorporated in view of Section 16 of the Hindu Marriage Act. 12. In any case, it was not the contention of the respondents that on the basis of a particular Regulation, they have rejected the Application of the petitioner. The reason stated in the counter affidavit to the affect that the Application was hopelessly delayed cannot be considered in this Writ petition as the impugned order was passed solely on the ground that the petitioner was born in the second marriage. Therefore, the impugned order is liable to be set aside and the same is set aside. 13. The reason stated in the counter affidavit to the affect that the Application was hopelessly delayed cannot be considered in this Writ petition as the impugned order was passed solely on the ground that the petitioner was born in the second marriage. Therefore, the impugned order is liable to be set aside and the same is set aside. 13. The matter is remitted to the third respondent for fresh consideration on merits and as per law and in accordance with the same scheme regarding compassionate appointments formulated by the Tamil Nadu Electricity Board. Such exercise shall be completed within a period of four months from the dated of receipt of a copy of this order. 14. The Writ Petition is allowed as indicated above. No costs.