M/s. Bharat Coking Coal Ltd. and Others vs Ujjawal Kumar Ray and Others

S.K. Chattopadhyaya, J.—Heard Mr. Mehta, Learned Counsel for the appellants and Mr. Ajit Kumar, Learned Counsel for the respondents on the point of limitation as-well as merit of the case. It is an admitted fact that limitation for filing the appeal expired on 19.3.97 and the instant appeal was filed on 23.6.97 and therefore, there is more than three months delay in filing the appeal and as such, the same is barred by limitation. However, considering the important point of law canvassed by the appellants in this appeal, the delay is condoned.

The question as to whether an illegitimate son of a deceased employee is entitled for appointment on compassionate ground has been answered by the learned Single Judge in affirmative and thus this appeal.

Mr. Mehta, Learned Counsel for the appellants, has contended that in view of the specific policy of the Company, only the dependants of a deceased employee, namely, the widow, the married daughter, son and a legally adopted son can be appointed on compassionate ground and the illegitimate son, though recognised as a son under the Hindu Law, cannot be appointed as such in violation of the policy of the Company. Relying on the decision in the case of ''Kanahiya Kumar vs. State of Bihar & ors, reported in (1996) II BLJ 581 : 1997(1) PLJR 473, Learned Counsel sought to canvass that only because an illegitimate son is treated as a son under the personal law, he does not acquire rights to be appointed on compassionate ground automatically. His further submission is that the petitioner-respondent is not entitled to compassionate appointment de hors the policy of the Company. Reference has been made to the case of Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, .

The status of a legitimate as well as illegitimate children was considered by their Lordships of the Supreme Court in the case of Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others Vs. K. Devi and others, . Their Lordships, relied on the observation of Lord Simon of Claisdale in Ampthill Peerage case, reported in (1996)2 All ER 411, 424, which reads as follows :

Legitimacy is a status : it is the condition of belonging to a class in society the members of which are regarded as having been begotten in lawful matrimony by the men whom the law regards as their fathers. Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition. Fatherhood, by contrast, is a presumption. A woman can have sexual intercourse with a number of men any of who may be the father of her child; though it is true that modern serology can sometimes enable the presumption to be rebutted as regards some of these men. The status of legitimacy gives the child certain rights both against the man whom the law regards as his father and generally in society.

According to their Lordships illegitimate children are children as are not born either in lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. Thus social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labeled as illegitimate. Interpreting Section 16of Hindu Marriage Act, 1955, their Lordships finally held that in view of the legal fiction contained in section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. Their Lordships however, opined that illegitimate children, however, cannot succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.

On the backdrop of this authoritative pronouncement of the Supreme Court, I am of the view, that it is not possible to hold that whereas a legally adopted son is entitled to get compassionate appointment after the death of his foster father, an illegitimate child of deceased employee is not entitled to get the same benefits.

The case of Kanahiya Kumar (supra), on which strong reliance has been placed by Mr. Mehta, in my view, instead of helping the appellants goes against them. In that case, the Division Bench noticed the decision of another Division Bench in the case of Kamal Ranjan Vs. The State of Bihar and Others, , in which the Division Bench held that the adopted son should be treated as a ''son'' for the purpose of compassionate appointment. Relying on the earlier Division Bench decision in Kanahiya Kumar''s case, it has been held that the persons in whose cases the personal law is applicable, such persons acquire right of property, etc. However, so far as the com-passionate appointment is concerned, the same is based on the guideline issued by the State Government from time to time and in the definition of ''dependant'' certain persons have been included like son, daughter, etc. It was further held that by virtue of such circular, a person acquires right for consideration for such appointment on compassionate ground but it is not necessary that if a person is son of a deceased employee, even his own son, automatically acquires right to be considered for appointment on compassionate ground because there are various factors to be taken into consideration i.e. till such person fulfils the certain criteria laid down by the State Government, he cannot be appointed.

Thus, it is clear that even if a legally adopted son is entitled to get appointment on compassionate ground but he must fulfill the criteria laid down for such appointment. Similarly an illegitimate child of a deceased employee is also entitled to get appointment on compassionate ground subject to, however, fulfillment of certain criteria laid down by the authority.

It is true that under clause 9.3.3 of NCWA-IV the word dependant has been defined which includes wife/husband, unmarried daughter, son and legally adopted son and in absence of above dependants the younger brother, widowed daughter widowed daughter-in-law or son-in-law are also regarded as the dependant but this definition, under the said clause, in my view, cannot be interpreted as excluding a son and unmarried daughter, who are illegitimate in their status.

Thus, considering the facts and circumstances of the case and law relating thereto, in my view, the learned Single Judge was right in holding that the respondent No. 1 was entitled to get compassionate appointment. However, it is made clear that in order to get such appointment the respondent No. 1 must fulfill other criteria for such appointment. In the result, I find no merit in this appeal and the same is dismissed.

N.K. Sinha, J.

I agree.