The present writ petition is filed seeking a writ of mandamus to call for the records pertaining to the impugned order made in Na.Ka.No.P.B.1(2)/6/15504/07 dated 05.12.2007 passed by the 3rd respondent rejecting the claim of compassionate appointment to the petitioner and direct the respondents to appoint the petitioner in any suitable class III or IV post in the respondents department.
2. The petitioner's father, Late M.Elumalai, died on 04.11.2006, while he was in service as a Head Constable(No.5599) at R-9, Valasaravakkam Police Station, T.Nagar, Vadapalani Range, leaving behind his wife Mohanambal (first wife), who had no children and Sakunthala (second wife), who is the mother of the petitioner. The deceased, Elumalai, having no issue through the first wife, married the second wife and has got two sons by name Bhagyaraj and Manikandan and two daughters by name Lakshmi and Thenmozhi. The eldest daughter alone has been given in marriage. When the petitioner's father died, there was no earning member in the family and the same was known to the department. After the death of the petitioner's father, the respondents divided the family pension and paid it equally to Mohanambal(first wife) and to the petitioner's brother Manikandan. The other financial benefits from the department were paid to the first wife, Mohanambal. As the deceased Elumalai had no issue through the first wife, throughout his life time, the family members of Elumalai including his 1st and 2nd wife along with the children lived together. Admittedly, the petitioner has no immovable property anywhere and they are also living in a rented house. In view of no earnings for the family, the petitioner's mother, Sakunthala, applied to the respondents on 4.6.2007, after the receipt of the death and legal heir certificate of the petitioner's father, to provide an appointment to the petitioner on compassionate grounds to meet out the indigent circumstances of the family. Since compassionate appointment has been given by the respondents to others similarly placed persons, who were sons born through the second wife, on the basis of circular issued by the 1st respondent dated 18.02.1988, the petitioner also pursued his request for compassionate appointment, as he was born through the second wife of Elumalai. Even, the first wife also had no objection to appoint the petitioner in a suitable post on compassionate grounds. Therefore, the respondents/department cannot decline to consider the request of the petitioner for compassionate appointment. Further, the petitioner having complied with the age limit of 27 years and studied upto 12th standard, but failed, was unable to pursue his further studies in view of his family living in abject poverty. The respondents/department also referred the matter to the Tahsildar, Nungambakkam in July 2007 for verification of movable and immovable properties, owned by the family; the distress condition of the family faced after the death of the government servant was also placed by the Tahsildar in his report. In spite of that, the respondents declined to consider the petitioner's representation on the ground that the petitioner is the son through the second wife. Therefore, the impugned order is totally contrary to the circular issued by the first respondent dated 18.02.1988 and is also discriminatory in nature as several compassionate appointments have been made by the 1st respondent to several other similarly placed persons. On that basis, the petitioner having waited for a long time, filed the present writ petition with the above prayer.
3. In reply, learned counsel appearing for the respondents submits that the case of the petitioner was considered by the respondents, since the petitioner is the son of the 2nd wife and also not passed 12th standard, his case was not considered for compassionate appointment. Hence, the correctness of the order challenged by the petitioner does not call for any interference by this Court and therefore, prayed for dismissal of the writ petition.
4. Heard the learned counsel appearing on either side and perused the materials available on record.
5. The petitioner's father, Late M.Elumalai, was working as a Head Constable and at the time of death, he was serving in Valasaravakkam Police Station, T.Nagar, Chennai. It is an admitted fact that the petitioner's father having had no issue through the first wife, married the second wife and from the date of second marriage, both his wives were living together under one roof. Admittedly, only through the second wife, Sakunthala, the petitioner, Bhagyaraj and another son by name Manikandan was born and two daughters Lakshmi and Thenmozhi were born through the second wife. The eldest daughter Lakshmi got married while all others remain unmarried. It is also relevant to note that after the death of the petitioner's father, the respondents divided the family pension and paid equally to the first and second wife. That apart, the other financial benefits due on the death of the petitioner's father were also paid to the first wife.
Admittedly, the petitioner's family does not own any movable or immovable properties and they were living only in a rented house. Therefore, as there was no earning member in petitioner's family, the petitioner's mother, Sakunthala, applied to the respondents seeking compassionate appointment, after collecting all the relevant documents such as death certificate, legal heir certificate, so as to meet out the indigent circumstances faced by the family due to the sudden death of his father. Though the petitioner was born to the second wife of Late.Elumalai, he is entitled to succeed on his estate, since there is no other legal heir through the first wife. Similarly, the petitioner is also entitled to get an appointment from the respondents on compassionate grounds as well, particularly, in view of various orders and instructions passed by the Government from time to time regulating and providing compassionate appointment to the wards of the government servant who died in harness, especially, in view of G.O.Ms.No.73 Employment Services, dated 26.08.1983, which indicates the method by which recruitment on compassionate grounds has to be made. Accordingly, the respondents have also taken steps by an order dated 05.12.2007, Na.Ka.No.P.B.1(2)/6/15504/07, to ascertain whether the petitioner is qualified to get appointment on compassionate grounds and, subsequently, the Tahsildar also submitted his report mentioning the family status of the petitioner. That apart, the first wife also has given her no objection in writing for providing compassionate appointment to the petitioner. Whileso, the contention of the 3rd respondent that he is not entitled for compassionate appointment, is not sustainable. When the respondents/department has already issued several compassionate appointments to various persons, who were born through the second wife, which is also supported by the circular issued by the first respondent dated 18.02.1988, that sons born through the second wife are also eligible for compassionate appointment, the case of the petitioner, who has also subsequently passed 12th standard examination, should be considered in any one of the post falling in Class III or IV in the respondents' department. The compassionate appointment is devised to help the bereaved family from being further pushed to irreparable misery. In this case, the petitioner, after his father's death, applied to the respondents after obtaining legal heir certificate and death certificate from the competent authority and along with no objection certificate given in writing by the first wife, but the action of the respondents rejecting his application is against their own circular, which are not only bad in law, but is also unsustainable.
6. The above said issue has already been settled by this Court in the case of N.Panneerselva Vs. Secretary to Government and Others, reported in (2009) 1 MLJ 54, wherein the law relating to compassionate appointment in respect of children born through void marriage has been recognized. Fruitful reliance can be had from para 7 to 9, which is extracted hereunder;-
"7.Another Division Bench of this Court in the case of Geetha Ramani v. District Educational Officer, Kancheepuram, (2004) 4 MLJ 177 presided over by Mr.Justice P.K.Misra and Mr.Justice S.R.Singharavelu, while referring to the Government Order in G.O.Ms.No.560 dated 3.8.1997 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 at p.179 of MLJ:
"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. 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 16.4.2002 this Court has held that there cannot be two criteria for the pupose 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 16.4.2002, 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."
7. A Division Bench Judgment of this Court, in the case of H.Anwar Basha v. Registrar General (Incharge) reported in (2008) 5 MLJ 795 supports the case of the petitioner. In the said case, it has also been held what is required to be considered for compassionate appointment that, even if the 2nd marriage of the candidate's father is void as per the Hindu Marriage Act, the children born through such void marriage cannot be held to be illegitimate. In the factual situation, the respondents have admittedly distributed the service and death benefits of the petitioner's father, to both the first wife and second wife by recognizing her as a member of the family and the petitioner's mother is also shown as legal heir of the erstwhile employee of the respondents.
8. In such circumstances, the strange conclusion reached by the respondents in the impugned order that the petitioner would not be entitled for compassionate appointment, simply because, he is son of second wife, is not sustainable and is bad in law. Accordingly, the impugned order passed by the respondents is quashed and the writ petition is allowed. No Costs.