IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2008 CORAM THE HONOURABLE MR. JUSTICE P.JYOTHIMANI Writ Petition No.17384 of 2008 and M.P.Nos.1 and 2 of 2008 N.Panneerselvam ...Petitioner -Vs.- 1. The Secretary to Government Public Works Department, Secretariat, Chennai – 9. 2. The Secretary, Tamil Nadu Public Service Commission, Chennai – 2. 3. The Principal Chief Engineer (WRO) and Chief Engineer (General), Public Works Department, Chepauk, Chennai – 5. ...Respondents PRAYER.: Writ Petition filed under Article 226 of the Constitution of India for the issuance of a writ of mandamus to regularise the service of the petitioner herein from 23.07.1997 and fix the petitioner’s service, promotion and his all service benefits over and above the immediate junior to the petitioner who was appointed subsequent and immediate to the petitioner’s appointment dated 23.07.1997. (Prayer amended as per Court’s order dated 19.09.2008 in M.P.No.3 of 2008 in W.P.No.17384 of 2008 by NPVJ.,) For Petitioner : Mr. R.Nalliyappan For Respondents : Mr. Lita Srinivasan, Govt. Advocate, for R-1 & R-3 Mr. K.Surendranath, TNPSC., for R-2. O R D E R Heard the learned counsel for the petitioner and the learned counsel for the Tamil Nadu Public Service Commission and the learned Government Advocate. https://hcservices.ecourts.gov.in/hcservices/ 2. The writ petitioner was born to one Narayanasamy through his second wife and this fact is not in dispute. While the father of the petitioner was working as a Junior Assistant in the Public Works Department of the Government, in the first respondent, he died. Thereafter the petitioner was appointed on compassionate ground by the third respondent on 16.07.1997 as Typist on temporary basis. The petitioner joined the said post on 23.07.1997 and he has been in the said capacity for the past eleven years on temporary basis. The petitioner has made repeated representations for the purpose of regularization of his service and the same has not been considered by the respondents on the ground that the petitioner was not born to said Narayanasamy through his legally wedded wife. It is seen that the first and third respondents have written to the second respondent, the Tamil Nadu Public Service Commission, vide Letter (MS) No.34, dated 16.04.2002 seeking for a clarification as to whether the children born out of void marriage who are entitled for Family Pension and Death cum Retirement Gratuity (DCRG) are also entitled for compassionate ground appointment. 3. A reference to the letter shows that the first respondent while seeking clarification from the Constitution Authority, namely, the second respondent, the Tamil Nadu Public Service Commission, has considered that the petitioner who was born through the second wife of an employee of the first respondent and therefore assuming that the said marriage is void, however accepted that the petitioner was entitled for the benefits like the Family Pension, DCRG treating the same as property right and while denying the rights of the petitioner for continuing on compassionate ground and regularizing the service of the petitioner herein, since he is an illegitimate son of the employee. The present writ petition is filed for a direction against the respondents to regularize the services of the petitioner. But the factual situation that the appointment of the petitioner as compassionate ground as Typist from 23.07.1997 and his continuation in the said post as of date is not in dispute. 4. The only issue to be decided is as to whether the petitioner is not eligible for regularization for the simple reason that the petitioner who was given compassionate appointment was born to an erstwhile employee of the first respondent through his second wife on the basis that the marriage between the erstwhile employee of the first respondent and his second wife as a void marriage. 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. In the factual situation here, the first respondent itself has admitted that in respect of the pension and DCRG, which https://hcservices.ecourts.gov.in/hcservices/ 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. 6. In this context, it will be useful to refer to a Division Bench Judgment, headed by Mr. Justice S.J.Mokhopadhaya and Mr. Justice V.Dhanapalan, in the case of H.Anwar Basha v. Registrar General (Incharge) reported in (2008) 5 MLJ 795 wherein it is held by relying upon the various other earlier judgments of the Apex Court as well as this Court that what is required to be considered for compassionate ground appointment is that the petitioner is a dependent of the deceased Government Servant. It is also held that the son of the deceased person remains to be the son whether he is legitimate or illegitimate son of the parents. The illegitimacy of the marriage between the petitioner’s father and the petitioner’s mother cannot stand as a stumbling block for the dependent to get employment. The Division Bench has held as follows:- “I. “Even on assuming that the marriage is irregular or void, if the petitioner is a dependant 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 dependants 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 dependant 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 a stumbling block for the dependant to get employment.” 7. Another Division Bench of this Court in the case of Geetha Ramani v. The District Educational Officer, Kancheepuram, reported in (2004) 4 M.L.J. 177 presided over by Mr. Justice P.K.Misra and Mr. Justice S.R.Singharavelu, while referring to the Government https://hcservices.ecourts.gov.in/hcservices/ Order in G.O.Ms.No.560 dated 03.08.1997 wherein it is made clear that the compassionate appointment shall not be extended to the children born to a second wife. The Division Bench has held as follows:- “The intention under the G.O. issued for employment on compassionate ground is to give protection to the members of the family of the deceased employee. By no stretch of imagination, it can be stated that the children born through the second wife, even though the second marriage is void, are not members of such family”. 8. Another un-reported judgment of this Court in the case of K.Velankannan v. The Government of Tamil Nadu and two others in W.P.No.16211 of 2007, dated 30.08.2007 by Mr. Justice Chockalingam by referring to similar G.O.Ms.No.34, Labour and Employment/01 Department dated 16.04.2002 this Court has held that there cannot be two criteria for the purpose to give protection for Family Pension and DCRG and deny the same for compassionate appointment. In the said decision in paragraph 6 it is held as follows:- “6. Contrary to the above, learned counsel for the State would submit that in the instant case, it is an admitted fact that the petitioner is the son of the deceased employee through his second wife and in the G.O.Ms.No.34 Labour and Employment/01 Department dated 16.04.2002, it is made clear that the children born out of the void marriages are entitled for the benefit in respect of the property of the deceased Government Servant i.e., Family Pension and Death-cum-Retirement Gratuity and that compassionate appointment cannot be equated to the status of the property of the deceased. Under such circumstances, while it is an admitted fact that he is the son through the second wife, he is not entitled to have the appointment, but he got appointment. Hence, the cancellation of appointment made by the second respondent was perfectly correct and it has got to be dismissed”. 9. Therefore, the law is well settled that as far as the children born through the illegitimate marriages are concerned, they are legitimate and entitled for the benefits. On the facts of this case as I have stated earlier there is no reason for denying the right of compassionate appointment to the petitioner while admitting that the petitioner was the dependent but at the same time accepting him the benefit of the property rights like that of the Family Pension and DCRG. 10. In any event, in this case, the petitioner’s appointment was as early as on 23.07.1997 as Typist, in which post he has been https://hcservices.ecourts.gov.in/hcservices/ serving in the said capacity for the past eleven years and therefore there is no reason to interfere on the reason that he was born through an illegitimate wife. In view of the same, the above writ petition stands allowed with a direction to the first respondent to regularize the services of the petitioner taking into consideration his original date of appointment as regular appointment and pass appropriate orders with all monetary and other pension and DCRG benefits expeditiously in any event within a period of twelve (12) weeks from the date of receipt of a copy of this order or on its production. No costs. Consequently the connected MPs are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar srk To 1. The Secretary to Government, Public Works Department, Secretariat, Chennai – 9. 2. The Secretary, Tamil Nadu Public Service Commission, Chennai – 2. 3. The Principal Chief Engineer (WRO) and Chief Engineer (General), Public Works Department, Chepauk, Chennai – 5. + 1 c.c. to Mr. R. Nalliyappan, Advocate. S.R.No.58455. + 1 c.c. to Mr. K. Surendranath, Advocate. S.R.No.58641. + 1 c.c. to The Government Pleader. S.R.No.58750. W.P.No.17384 of 2008 & M.P.Nos.1 and 2 of 2008 RL (CO) GSK 29.10.2008. https://hcservices.ecourts.gov.in/hcservices/