Hira Singh vs State of Punjab and Others

Augustine George Masih, J.—Petitioner, who is son of late Sh. Santa Singh, born out of the second marriage which Santa Singh performed during the subsistence of his first marriage, has approached this Court impugning the orders dated 8.4.2010 and 15.10.2010 (Annexures P-11 & P-12 respectively) vide which his claim for appointment on compassionate ground stands rejected by the respondents on the ground that the petitioner would not be eligible for consideration for appointment on compassionate ground as the second marriage of Santa Singh deceased with Smt. Joginder Kaur was illegal and the petitioner-Hira Singh being the son out of this illegal wedlock is not entitled to be treated as a son of Santa Singh. Counsel for the petitioner contends that Santa Singh, father of the petitioner, was working as a Driver in the office of the Deputy Excise & Taxation Commissioner, Ferozepur, who died in harness on 18.2.2000. Earlier Santa Singh was married to Smt. Jaggo Bai, stepmother of the petitioner. When it transpired that she could not conceive a child from Santa Singh, second marriage was solemnised by him with Smt. Joginder Kaur, mother of the petitioner. This marriage was with the consent of Smt. Jaggo Bai and with an intention to bear children of Santa Singh. Smt. Jaggo Bai had also been staying with the family. Out of the wedlock between Santa Singh and Smt. Joginder Kaur, petitioner was born on 15.1.1989.

Since at the time of death of his father on 18.2.2000 petitioner was a minor, he could not be appointed on compassionate ground. Both wives of Santa Singh being illiterate also could not be given appointment on compassionate ground. The claim being not covered by the policy instructions dated 21.11.2002 (Annexure P-8) petitioner could not at that time, being a minor, be appointed. A fresh notification was issued by the Government of Punjab dated 3.7.2008 (Annexure P-9), according to which proviso to para 13(a) of the policy instructions dated 21.11.2002 was added. As per this addition, it was mentioned that in case where the deceased Government employee leaves behind his/her minor children, who were studying at the time of death of the employee and were not qualified for employment in the government and the spouse is not in a position to join the Government job, a dependent child may be allowed to apply for compassionate appointment by the competent authority within a period of one year from the date of attaining the age and educational qualifications for a Group ''C'' or ''D'' appointment in government. It was further decided that on humanitarian consideration as a special one time measure to all old deserving cases, the benefit may be granted and applications may be called for employment, which may be made within a period of six months from the date of issue of these instructions. In pursuance to this notification, issued by the government of Punjab, petitioner applied for appointment on compassionate ground being son of a deceased government employee and covered by the policy instructions dated 21.11.2002 in the light of the notification date 3.7.2008.

An affidavit was filed by Smt. Jaggo Bai dated 20.10.2006, the step mother of the petitioner, that she had no objection to the appointment of Hira Singh-petitioner, who is son of Santa Singh, if a job is given to him in place of his father. There being no objection from any quarters and petitioner being eligible now under the policy instructions, the claim of the petitioner was considered by the respondents but rejected vide order date 8.4.2010 (Annexure P-11) and 17.8.2000 (Annexure P-12) by holding that the petitioner was not eligible for appointment on compassionate grounds, as a government servant is entitled for only one marriage and since the petitioner was born from the second wife and this marriage being illegal, he cannot be given the job on compassionate grounds. These orders have been challenged by the petitioner in the present writ petition.

Counsel for the petitioner submits that requirement under the policy instructions dated 21.11.2002, which defines under note-1, ''dependent family members'' as per clause-B to be a son (including adopted son). It is not in disputed by the respondents that the petitioner is the son of Santa Singh. What primarily has been asserted by the respondents is that he has been born out of a wedlock which is an illegal one and, therefore, not entitled to the claim. This, counsel for the petitioner contends, is not sustainable as the factum of petitioner being the son of Santa Singh is not disputed by them and further the claim of the petitioner falls within the policy instructions dated 21.11.2002. Under these instructions, there is no bar to consider the claim of a son, who is born out of an void marriage as the requirement as per the 2002 Rules defining ''dependent family member'' it is only ''son of the deceased'' and not ''a son born out of a valid marriage''. In any case, he contends that even u/s 16 of the Hindu Marriage Act, 1955 children of void marriage are legitimate and under the Hindu Succession Act, 1956 they are entitled to succession to the estate of the father. In the light of this legal position, the petitioner is entitled to be considered for appointment to the post in the respondent department on compassionate grounds. The prayer has, thus, been made to set aside the impugned orders and direct the respondents to appoint the petitioner.

On the other hand, counsel for the respondents, submits that the petitioner being born out of a void marriage cannot be termed as the son of Santa Singh. He has no child, who would be eligible for consideration as a dependent of the deceased Santa Singh, as per the policy of the government dated 21.11.2002. The second marriage of Santa Singh with Smt. Joginder Kaur was never declared by Santa Singh and, therefore, the petitioner cannot be treated as a son of Santa Singh. The rejection of the claim of the petitioner is, thus, in accordance with law and does not call for any interference by this Court.

I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.

In the written statement the facts, as have been narrated above, are not disputed. The question, which requires an answer in the present writ petition is that "As to whether a child born out of a void marriage can be considered under the policy instructions dated 21.11.2002 to be dependent family member as provided in para 3 thereof?

Para 3 of the Policy instructions dated 21.11.2002 reads as follows:-

Henceforth, the objective of the Scheme is limited to grant of appointment on compassionate grounds to persons who fall in the categories mentioned below:-

A dependent member of the family of a person (breadwinner) killed or 100% physically disabled in terrorist action or by security forces acting in bid of civil power in the State.

A dependent member of the family of the deceased Government employee, who dies in harness.

Disabled Ex-Servicemen (fit for Civil Services).

A dependent member of the family of the Defence Services Personnel:

(i) Killed in service, while performing duties; or

(ii) Who are severely disabled and totally unfit for re-employment.

Note I:- DEPENDENT FAMILY MEMBER MEANS:

a) Spouse; or

b) Son (including adopted son); or

c) Un-married Daughter (including adopted Daughter) or

d) Un-married Brother or Un-married sister in the case of un-married Government Servant.

- Who was wholly dependent on the Government Servant/member of the Armed Forces at the time of his death in harness.

A perusal of the above would show that as per Note-1 clause (b), the only requirement as far as relation of a person to be ''dependent family member'' would be ''son'' which includes an ''adopted son''. As per the reply filed by the respondents, it is not disputed that the petitioner was born out of the wedlock between Santa Singh and Smt. Joginder Kaur. He is, therefore, natural son of deceased Santa Singh. The objection, which has been raised, with regard to the second marriage of Santa Singh that Smt. Joginder Kaur, which is termed as void also cannot be an impediment so far as the claim of the petitioner for being a son, is concerned, and that too under the policy/instructions dated 21.11.2002. It is not disputed by the respondents that there is no child born out of the first marriage between Santa Singh and Smt. Jaggo Bai. If that be so, except for the children who were born out of the second marriage of Santa Singh with Joginder Kaur, there cannot be any other claimant to be considered for appointment on compassionate grounds. Admittedly, Smt. Joginder Kaur and Smt. Jaggo Bai are illiterate and, therefore, cannot be considered for appointment on compassionate grounds. It needs to be added here that Smt. Jaggo Bai has also given an affidavit dated 20.10.2006 (Annexure P-13) that she has no objection, in case the petitioner, who is son of Santa Singh, is given appointment in place of Santa Singh on compassionate grounds. Keeping in view the requirement of the policy instructions dated 21.11.2002, which does not quality a son to be born out of a legal marriage it cannot be disputed or it cannot be said that the petitioner is not son of Santa Singh. If that be so, merely because he is born out of the wedlock, which is not in accordance with law, cannot be a ground for denying him the benefit of the policy instructions dated 21.11.2002. Further, u/s 16 of the Hindu Marriage Act, 1955 children of a void marriage are legitimate and under the Hindu Succession Act, 1956 also such children are entitled to a share in the property of their father. This view has been fortified by Hon''ble Supreme Court judgment Rameshwari Devi Vs. State of Bihar and others, wherein it has been held that children born out of second marriage are entitled to share in the family pension also.

That apart, as per the policy instructions dated 3.7.2008, as a one time measure liberty was granted to deserving applicants to make applications for consideration for appointment on compassionate ground for those dependents who were minor at the time when the deceased government employee had expired and where the spouse was not in a position to join the government job. The claim of the petitioner is covered under these instructions and, therefore, had submitted an application for appointment on compassionate ground. The application was also considered by the respondents but has been rejected on the grounds, which are not sustainable and are contrary to the requirements of the policy instructions dated 21.11.2002 and the law. Petitioner being son of Santa Singh is entitled to be appointed on compassionate grounds as per the policy instructions dated 21.11.2002. In view of the above, the writ petition is allowed. Impugned orders dated 8.4.2010 (Annexure P-11) and 15.10.2010 (Annexure P-12) are hereby quashed. Direction is issued to respondents No. 2 & 3 to consider the claim of the petitioner for appointment on compassionate grounds. This exercise be completed within a period of one month from the date of receipt of certified copy of this order.