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Jharkhand High Court · body

2016 DIGILAW 939 (JHR)

Dipak Kumar Yadav v. State of Jharkhand

2016-06-17

ANANDA SEN

body2016
ORDER : ANANDA SEN, J. 1. The petitioner is challenging the order contained in Memo No.1394 dated 23.11.2013 by which his claim for appointment on compassionate ground has been turned down by the State. 2. The father of the petitioner, namely, Vishwaranjan Yadav, an employee of the State Government was working on the post of Surveillance Worker under the Department of Health and Family Welfare and was posted at Primary Health Centre, Baharagora, Singhbhum East, who died in harness on 14.1.2002. The father of the petitioner was married to Smt. Triful Devi and during subsistence of the said marriage and during the life time of the said Triful Devi, he married with the mother of the petitioner, namely, Anjali Devi. Out of the first marriage with Triful Devi, said Vishwaranjan Yadav has got two daughters and from Anjali Devi, he got one son, i.e the petitioner and one daughter. Step sisters of the petitioner, as mentioned in the writ petition, are already married and are settled in their respective life. As the father of the petitioner died in harness on 14.1.2002, this petitioner claimed to be appointed on compassionate ground. The application of the petitioner was forwarded to the Deputy Commissioner, East Singhbhum for consideration. The case of the petitioner was placed before the District Compassionate Appointed Committee on 11.2.2008 but ultimately the petitioner was informed, vide letter dated 23.11.2013 that his case was rejected on the ground that he is the son of the second wife and as the father of the petitioner had married second time during the life time of first wife, this petitioner is not entitled to be appointed in terms of the letter no.5405 dated 28.9.2007 of the State Government. 3. Being aggrieved with the said order, the petitioner has approached this Court and prayed to set aside the impugned order and to reconsider the case of the petitioner for grant of his employment on compassionate ground. 4. Counsel for the State has appeared and filed counter affidavit and stated that the case of the petitioner was rejected in view of the letter no.5405 dated 28.9.2007 of the State Government. 4. Counsel for the State has appeared and filed counter affidavit and stated that the case of the petitioner was rejected in view of the letter no.5405 dated 28.9.2007 of the State Government. He further states that since the petitioner is the son of the second wife and the first wife is already alive and the first marriage was subsisting, thus, the second marriage with the mother of the petitioner solemnized by Vishwaranjan Yadav is void, so, the petitioner is not entitled to be appointed on compassionate ground. 5. Heard the parties at length. 6. At the relevant point of time, the decision for grant of compassionate appointment was governed by the policy decision of the Department, vide letter no.13293 dated 5.10.1991. As per clause ga of the said policy decision, one dependent of an employee, who die in harness, will be entitled for compassionate appointment. It further mentions that the wife, son, unmarried daughter and daughter-in-law and the wife of the predeceased son will be treated to be dependent. As per the circular adopted son, son-in-law, nephew etc. are not to be considered as dependent and are not entitled to get employment. The letter dated 28.9.2007 provides that if, during the subsistence of a marriage and during the life time of the first wife, any Government employee marries for the second time, the said marriage is void one and any children out of the said void marriage is not entitled to be employed in terms of Resolution No.13293 dated 5.10.1991. The claim of the petitioner was rejected on this ground. 7. Resolution no.12 dated 5.10.1991 nowhere mentions that 'illegitimate' child will be considered for compassionate appointment. The only exclusion is adopted son, son-in-law, nephew etc. 8. Illegitimate son is also natural son born out of the marriage which may be void in terms of the Hindu Marriage Act. The claim of the petitioner was rejected on this ground. 7. Resolution no.12 dated 5.10.1991 nowhere mentions that 'illegitimate' child will be considered for compassionate appointment. The only exclusion is adopted son, son-in-law, nephew etc. 8. Illegitimate son is also natural son born out of the marriage which may be void in terms of the Hindu Marriage Act. Section 16(1) of the Hindu Marriage Act provides that notwithstanding 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 a decree of nullity is granted in respect of that marriage under the Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. Thus, the enactment clearly provides that even if the marriage is void, the children born out of the said marriage will be legitimate. In view of this legal fiction contained in Section 16, the illegitimate child born out of the marriage, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. 9. The Honble Supreme Court in a case of Parayankandiyal Eravath Kanapravan Kalianiamma & Ors. v. K. Devi & Ors. [ (1996) 4 SCC 76 ] has held that children born out of the void marriage may not be excluded from succession and they are entitled to inherit properties of their parents. On this background, the letter dated 28.9.2007 is to be examined. The claim of the petitioner was dismissed, in terms of clause (iii), of the impugned letter on ground that any children born out of the void marriage is not entitled to be employed in terms of Resolution No.13293 dated 5.10.1991. The resolution of 5.10.1991, nowhere mentions that a child born out of void marriage is to be excluded for grant of compassionate appointment. Thus, Resolution No.13293 dated 5.10.1991 has been misinterpreted by the State authorities while issuing the impugned letter no. 5404 dated 28.9.2007. 10. Even if the marriage is void, the children born out of the said marriage will be entitled to inherit the properties on his parents. Since compassionate appointment is only by inheritance, they are also entitled to be considered for such appointment. 11. 5404 dated 28.9.2007. 10. Even if the marriage is void, the children born out of the said marriage will be entitled to inherit the properties on his parents. Since compassionate appointment is only by inheritance, they are also entitled to be considered for such appointment. 11. I find that the impugned order rejecting claim of the petitioner for appointment on compassionate ground is absolutely bad. Thus, in view of the findings given above, the impugned order dated 23.11.2013 contained in Memo no.1394 is set aside and the matter is remitted to the District Compassionate Appointment Committee to consider the case of the petitioner on merit. If the petitioner is otherwise entitled to get appointment on compassionate ground, the said Committee will issue appointment letter to the petitioner within a period of eight weeks from the date of receipt of a copy of this order. If, after considering the case of the petitioner, the Committee finds that the petitioner is not entitled for appointment on compassionate ground, the same will be communicated to the petitioner within a period of two weeks thereafter. 12. Thus, this application stands disposed of.