IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.163 of 2011 KANHAIYA KUMAR, son of late Jageshwar Mandal, resident of Mohalla – Basant Bihar (Newalal Chowk), Police station – K Hatt, District Purnia _____ Petitioner Versus 1. THE STATE OF BIHAR through the Director, Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar, Patna. 2. The Special Land Acquisition Officer, Koshi Yojna, Saharsa. 3. The District Compassionate Committee, through its Chairman, District Magistrate, Saharsa. _____ Respondents ----------- 02. 21.6.2011 Petitioner happens to be the son from the second wife of the deceased employee. Father of the petitioner was a Hindu who was already married and had a wife living but since he did not have a progeny he decided to marry again, which did beget him a son in birth of the present petitioner. When father of the petitioner died in harness, petitioner moved the authorities for appointment under the compassionate head. Claim was considered but the respondents rejected his prayer on the basis of a so-called circular of the State Government, which states that since a second marriage of an employee is not permissible under the law or the service regulations and any marriage solemnized without permission of the State is not valid, offspring of the second wife cannot claim benefits including appointment under compassionate head. The letter of rejection along with the circular was communicated to the petitioner, which he decided to challenge in the present writ application. 2 The stand of the State in the counter affidavit is based on the circular. Counsel for the State submits that there is no fundamental or constitutional right for a person to claim appointment under compassionate head. It is based on a right flowing from a policy and if the policy of the State does not permit such benefit to be extended to children of second wife, the respondents have committed no wrong in rejecting the claim of the petitioner. The stand of the State will have to be taken with certain reservation in light of the decision of a Division Bench rendered by this Court in the case of Purushottam Kumar v. State of Bihar and others, reported in 2005(3) PLJR 458. After taking into consideration the legal position emerging from the Hindu Marriage Act, 1955, especially Sections 5, 11 and 16 that children of the second wife are legitimate even though second marriage is void during the life-time of the first spouse living. In a similar circumstance, the Division Bench held that a claim for compassionate appointment can be made by such off-spring even if they are off suit of a void marriage. They have a right to claim appointment under compassionate head without incurring any legal disqualification. The law being what it is, as declared by the Division Bench, the reason given for rejection of the claim of the petitioner, therefore, is de hors the law and it requires interference. 3 Annexure-1 dated 28.1.2010 to that extent stands quashed. The matter is remanded back to the authorities to reconsider the case of the petitioner in light of the ratio laid down by the Division Bench. Writ is allowed. rkp ( Ajay Kumar Tripathi, J.)