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2015 DIGILAW 374 (MAD)

P. Kirubha v. District Collector, Collectorate

2015-01-22

K.RAVICHANDRA BAABU

body2015
Judgment 1. The petitioner is aggrieved against the order of the second respondent, dated 20.05.2014, whereby her request for providing employment on compassionate ground, was rejected. 2. The case of the petitioner is as follows:- Her father was working as Office Assistant at the office of the Revenue Divisional Officer, Karur, for more than 20 years and died on 21.01.2005. Her father married one Muthukannu and as she was not having any children, he married petitioner's mother, by name, Manimekalai and through her he had two children, namely, the petitioner and another daughter. Pension was sanctioned to both the petitioner's mother and the said Muthukannu through the decree obtained from the District Munsif, Karur in O.S.No.126 of 2006. The petitioner's mother gave representation to the respondents on various dates from 13.02.2006 to 25.08.2011 seeking for compassionate appointment. The petitioner also gave a representation on 13.09.2011. The first respondent rejected the same on 02.08.2013 on the reason that the petitioner had not completed 18 years. The petitioner filed W.P(MD)No.3863 of 2014, wherein this Court has directed the respondents to consider the representation of the petitioner. Thereafter, the present impugned order came to be passed on 20.05.2014 stating that the petitioner being the daughter born through the void marriage, is not entitled to the relief and also on the reason that the application was not filed within a period of three years of the death of her father. 3. A counter affidavit is filed by the second respondent, wherein it is stated that the petitioner being the daughter born through the void marriage is not entitled to the benefit of compassionate appointment. 4. The learned counsel appearing for the petitioner submitted that the reasons assigned by the second respondent cannot be sustained, since those reasons were already considered by this Court in other decisions and were rejected. In support of such submissions, he relied on a decision of this Court made in W.P(MD)No.7560 of 2003 dated 31.03.2009 and W.P(MD)No.937 of 2013 dated 18.03.2014. 5. The learned Government Advocate appearing for the respondents submitted that in view of the various circulars issued by the Government, illegitimate children are not entitled to get the compassionate appointment and therefore, the petitioner's request was rightly rejected. 6. Heard both sides. 7. The petitioner is seeking for compassionate appointment in pursuant to the death of her father. 5. The learned Government Advocate appearing for the respondents submitted that in view of the various circulars issued by the Government, illegitimate children are not entitled to get the compassionate appointment and therefore, the petitioner's request was rightly rejected. 6. Heard both sides. 7. The petitioner is seeking for compassionate appointment in pursuant to the death of her father. It is seen that the petitioner was minor at the time of the death of her father. However, it is stated by the petitioner in the affidavit that her mother made repeated representations commencing from 13.02.2006 to 25.08.2011. To the said specific averments made by the petitioner, there is no specific denial in the counter affidavit. Therefore, it cannot be said that the application filed by the petitioner is the first application from the family that too, after a period of three years. At any event, the petitioner was minor at the time of death of her father. She filed the application on 30.09.2011 and therefore, it cannot be said that the application is belated one. Moreover, when the petitioner has approached this Court earlier and filed the writ petition in W.P(MD)No.3863 of 2014, seeking for a Mandamus to provide for a Government Job on compassionate ground, this Court, by an order dated 05.03.2014, directed the authorities to consider her representation and pass orders on the same on merits and in accordance with law. 8. Considering the fact that the mother had already made application and the petitioner was minor at that time and also the fact that the petitioner, after attaining the majority, had made an application, it cannot be said that the application is belated one. Therefore, such reasons stated by the second respondent cannot be sustained. In this aspect it is useful to refer to paragraph 7 and 8 of the order made in W.P(MD)No.937 of 2013 dated 18.03.2014. “7. In this case, the petitioner's father died on 29.08.2006, while he was in service. The said facts is not disputed. It is stated by the petitioner that immediately after the death of her father, her mother made an application on 20.11.2006 seeking compassionate appointment to the petitioner. That application was considered by the respondent and through his proceedings dated 30.11.2006, he has directed the petitioner to make the application after completion of 18 years. The said facts is not disputed. It is stated by the petitioner that immediately after the death of her father, her mother made an application on 20.11.2006 seeking compassionate appointment to the petitioner. That application was considered by the respondent and through his proceedings dated 30.11.2006, he has directed the petitioner to make the application after completion of 18 years. Therefore, the reasons stated in the impugned order goes contra to the proceedings issued by the District Collector dated 30.11.2006. As directed by the respondent, the petitioner made the application on 25.06.2012, immediately after attaining majority. Without reference to the said application, the present impugned order is passed totally with non application of mind to the earlier proceedings issued by the respondents dated 30.11.2006. 8. This Court has held in very many cases that application for compassionate appointment can be made by a person immediately after attaining the majority and therefore, there cannot be any impediment for the respondent to consider the request of the petitioner. Therefore, I find every justification in allowing the writ petition by setting aside the impugned order.” Therefore, the above said reasons cannot be sustained. 9. In respect of the other reason, namely, the illegitimate status of the petitioner is concerned, the very same issue was already considered by this Court in W.P.No.7560 of 2003 and after following the decision of the Division Bench of this Court reported in (2008)5 MLJ 795 (H.Anwar Basha vs. Registrar General (Incharge), the learned Single Judge has observed at paragraph 5 to 8 as follows:- “5. In N.Panneerselvam v. Secretary to Government, Public Works Department, Chennai and others, (2009)1 MLJ 54 , while considering a similar issue, this Court has held that even children born through illegitimate marriage are entitled to the benefits as the legal heirs of the deceased employee and they cannot be denied the right of compassionate appointment. This Court, after referring to a judgment 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 marriage of the petitioner's father is void, as per the Hindu Marriages Act, the children born through such void marriage cannot be held to be illegitimate. Law is well settled that even if the second marriage of the petitioner's father is void, as per the 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 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” 10. The Division Bench of this Court in H.Anwar Basha v. Registrar General (Incharge), referred supra, while deciding the ratio in cases of this nature, has prescribed three points to be followed for providing compassionate appointment, which are as follows:- “I. Even on assuming that the marriage is irregular or void, if the petitioner is a dependent 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 dependents of the deceased Government Servant include the son and it does not denote whether the son should be legitimate or 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 dependent 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 stumbling block for the dependent to get employment. 11. Similar view was also taken by another Division Bench of this Court in Geetha Ramani v. District Educational Officer, Kancheepuram (2004)4 MLJ 177 . 12. In view of the settled legal position, there is no difficulty to conclude that even children born through void marriage cannot be rejected as illegitimate. Of course, as submitted by the learned counsel for the petitioner, in the present case, it is not as if late S.Kaliyaperumal married the mother of the petitioner as second wife during the life time of his first wife. Of course, as submitted by the learned counsel for the petitioner, in the present case, it is not as if late S.Kaliyaperumal married the mother of the petitioner as second wife during the life time of his first wife. As submitted, it was only after the death of the first wife, Late S.Kaliyaperumal married the mother of the petitioner. In that view of the matter also it cannot be held that the marriage is illegitimate. 13. Further the Honourable Supreme Court in a decision reported in JT 1996(4) SC 656 (Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others vs. K.Devi and others) while considering the scope of Section 16 of the Hindu Marriage Act, 1955, has observed at paragraphs 68 and 80 as follows:- “68.Hindu Marriage Act, 1955 is a beneficient legislation and, therefore, it has to be interpreted in such a manner as advances the object of the legislation. The Act intends to bring about social reforms. Conferment of social status of legitimacy on a group of innocent children, who are otherwise treated as bastards, is the prime object of Section 16. 80. Section 16 contains a legal fiction. It is by a rule of fictio juris that the legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable.” 14. In view of the above said order passed by this Court earlier, I am of the view that the petitioner is entitled to succeed in this writ petition. Accordingly, the writ petition is allowed and the impugned order of the second respondent is set aside and the matter is remitted back to the second respondent to pass orders on the request of the petitioner seeking for compassionate appointment, if she is otherwise eligible, 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.