Sri. G.T. Suresha vs Shimoga City Municipal Council and Directorate of Municipal Administration

H.N. Nagamohan Das, J.—In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the endorsement dated 14.09.2010 - Annexure W passed by the respondents rejecting the claim of the petitions for appointment on compassionate grounds. One G. Thirupal was working as a Poura Karmika (Group - D) in the respondent No. 1 - City Municipal Council and he died on 01.07.2004 while in service. The deceased employee left behind his first wife Smt. Rothamma and through her three children and also a second wife by name Smt. Lakshmamma and through her two children. Petitioner is the son of the deceased employee through his second wife. On the question of drawing the death benefits of the deceased employee both the first wife and her children and second wife and her children landed before the Civil Court in P&SC No. 16/2005 u/s 372 of the Indian Succession Act and the same ended in a compromise as under:

Whereas you have been applied on 9.12.2005, for certificate under the Indian Succession Act, 1925. In the matter of the Estate of Thirupal, in respect of the following debts and securities.

And where as the case was referred to Lok Adalath and both petitioners No. 1 to 4 and respondents No. 1 to 3 have filed Compromise Petition.

And whereas as per the Compromise petition both the parties have agreed as under:

The petitioner No. 1 Smt. Rothamma is entitled to receive a service Benefits of Late. Thirupal like 1) Death Fund 2) Gratuity 3) Earned Leave Benefits and 4) pensionery benefits, on the other hand the Respondent No. 2 Suresha, S/o. Respondent No. 1 Lakshmamma W/o. Late. Thirupal, may apply for the job on compassionate ground before the authority is entitled to.

As per the above terms of compromise, the petition is admitted and allowed.

This Certificate is accordingly granted to you the 1st petitioner Smt. Rothamma and empowers her to collect the service benefits, entitling Sri. Suresha - Respondent No. 2 to get the job on compassionate ground.

In terms of the compromise decree the petitioner is entitled for appointment on compassionate grounds. Accordingly the petitioner approached respondent No. 1 by making necessary application and the same came to be rejected under the impugned endorsement dated 14.09.2010 - Annexure W on the ground that under Rule 3(2) of the Karnataka Civil Services (Appointment on compassionate grounds) Rules, 1996 (for short ''the Rules'') the petitioner is not entitled for an appointment on compassionate grounds since he is the son of second wife of the deceased employee. Hence, this writ petition.

Heard arguments on both the side and perused the entire writ papers.

A reading of sub-rule 2 of Rule 3 of the Rules specifies that the Rules do not make a distinction between the children of first wife and children of second wife. There is no specific bar under the Rules for providing an appointment to the son of second wife of deceased employee. In the absence of any such legal bar the impugned endorsement issued by the respondent No. 1 is illegal and liable to be set aside.

Admittedly the petitioner is the son of second wife of deceased employee. The material on record discloses that the marriage between the deceased employee and his second wife is a void marriage. The petitioner being the son of deceased employee through his second wife is also a legitimate child u/s 16 of the Hindu Marriage Act. A Division Bench of this Court in the case of Sri Mahaveer @ Vilas Shanthappa @ Shantagowda Patil and Others Vs. Sri Sukumar Tulajagonda Patil and Others, held as under:

It is not the fault of the child to be born illegitimate. There is no justification to treat illegitimate children as lesser children. Illegitimacy castes a stigma on the children and they have to suffer discrimination in social and economic status. In order to correct this injustice the legislature, in their wisdom amended Hindu Marriage Act by substitution of Section 16 by Act No. 68 of 1976. Section 16 of the Act reads as under:

Legitimacy of children of void and voidable marriages.- (1) Notwithstanding that marriage is null and void u/s 11, any child of such marriage would have 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 (68 or 1976) and whether or not a 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.

A reading of Section 16 of the Hindu Marriage Act specifies that illegitimate children are to be treated as legitimate children. Thus the status of legitimacy was confirmed on the children born out of a void marriage. Further the property rights are conferred on illegitimate children. When illegitimate children are treated as legitimate children then they are entitled to enjoy all the rights, status and privileges enjoyed by legitimate children. When legitimate children are entitled for succession and inheritance then the illegitimate children are also entitled for equal rights. There is no reason as to why the illegitimate children who are treated as legitimate shall be denied the right of succession or inheritance.

Therefore the petitioner is a legitimate son of the deceased employee and he is entitled for all benefits in par with the children of first wife. Therefore there is no justification for the respondents to reject the claim of the petitioner.

The controversy between the first wife and her children and the second wife and her children of deceased employee ended in a compromise in P & SC No. 16/2005. In terms of this compromise decree the petitioner is entitled to claim appointment on compassionate grounds. Further the first wife and her children have withdrawn the death benefits of the deceased employee in terms of the compromise decree. The first wife and her children have not made a claim before respondent No. 1 for an appointment on compassionate grounds. Therefore, there is no legal impediment for the respondents to provide an appointment to the petitioner on compassionate grounds. For the reasons stated above, the following;

ORDER

i. Writ petition is hereby allowed.

ii. The impugned endorsement dated 14.09.2010 - Annexure W is hereby quashed.

iii. The respondents are hereby directed to provide an appointment on compassionate grounds to the petitioner as expeditiously as possible and in any event not later than three months from the date of receipt of copy of this order.