(Prayer: This Appeal Is Filed Under Section 4 Of The Karnataka High Court Act Praying To Set Aside The Order Passed In The Writ Petition No. 4409/2007 Dated 21.03.2007 And Etc.,)
1. The legality and correctness of the order passed by the learned Single Judge in Writ Petition No.4409/2007 dt.21.3.2007 is called in question in this appeal.
2. On an earlier occasion, a Coordinate Bench of this court dismissed the Appeal on 28th September 2010 stating that the appellant being the son of the second wife of deceased Government employee, he is not entitled for an appointment on compassionate grounds. The Judgment of Coordinate Bench was taken up by the appellant before the Hon. Supreme Court in Civil Appeal No.9160/2013. The Hon. Apex Court by its order dt. 17th October 2013 set aside the decision of the Coordinate Bench of this court and remitted the matter to this court for fresh consideration in the light of the Judgment delivered by the Hon. Supreme Court in VIDHYADHARI AND OTHERS VS. SUKHRANA BAI AND OTHERS reported in 2003(2) SCC 238. In view of the specific direction issued bv the Hon. Apex court, we have reheard this matter.
3. We have heard the learned counsel for the parties.
4. At the time of filing the appeal there was a delay of 1214 days in filing the appeal. The Coordinate Bench which heard the matter without considering the I.A. filed by the appellant for condoning the delay disposed off the appeal on merits. Since the Judgment of the Coordinate Bench has been reversed by the Hon. Supreme Court and the matter is remanded to the High Court for fresh consideration in the light of the Judgment in Vidhyadhari's case, we are of the opinion that since the Coordinate Bench on an earlier occasion has disposed off the matter on merits and the Hon. Supreme Court has directed this court to reconsider the matter, we condone the delay of 1214 days. Accordingly, the delay is condoned.
6. The facts of this appeal are as hereunder:
One Jayaramu was working as Lineman in the office of the Assistant Executive Engineer(Electrical); Kanakapura Taluk. While in service he died on 29.1.2005. The appellant's father - Jayaramu had married one Jayalakshmi, who died on 4.11.2004. The appellant's mother - Padmavathi is the 2nd wife of Jayaramu and the appellant is the only son to them. Through his first wife - Jayalakshmi, Jayaramu has three daughters by name, Roopa, Rekahavathi and Jyothi. They are all married and settled in their life. After the death of his father- Jayaramu, the appellant made an application to consider his case for appointment on compassionate grounds. The same was not considered on the ground that he is born to his second wife and that he being an illegitimate son is not entitled for compassionate appointment.
7. The same was questioned by the appellant before the learned Single Judge. The learned Single Judge rejected the petition on the ground that the appellant being an illegitimate son is not entitled for appointment on compassionate grounds. Therefore, the present Writ Appeal is filed.
8. The main contention of the appellant's counsel are as hereunder:
According to him, the family pension has been settled by the respondent in favour of his mother - Padmavathi and all claims after the death of his father are also settled. He being the only son born to Padmavathi and Jayaramu, is entitled for an appointment on compassionate grounds. According to him, when the Hon. Supreme Court in several cases held that an illegitimate son is also entitled for a share in the property of his father on par with the children born to the legally wedded wife, the respondent could not have denied the appointment on compassionate grounds. He further submits that in similar circumstances, the Hon. Supreme Court had an occasion to consider the matter in VIDHYADHARI AND OTHERS Vs. SUKHRANA BAT AMD OTHERS reported in (2008) 2 SCC 238. The Hon. Supreme Court while dealing with the question whether the 2nd wife during the life time of the legally wedded wife is entitled to file an application for grant of succession certificate to claim the pensionary benefit and other death benefit of her husband, considering the background that she was living with her husband and had 4 children born to her through the deceased, was entitled to make an application. The Hon. Supreme Court also held that the children born to Vidhyadhari, though she is a second wife of Sheetaldeen, has to be considered as legitimate children.
9. The Hon. Supreme Court in the Special Leave Petition filed by the appellant, came to the conclusion that the Coordinate Bench did not consider the Judgment in Vidhyadhari's case and the case of the appellant squarely covered by the aforesaid decision. The Hon. Supreme Court had an occasion to consider a similar facts in RAMESHWARI DEVI VS. STATE OF BIHAR AND OTHERS case reported in (2000) 2 SCC 431, wherein it is stated as hereunder:
" Even if a government servant had contracted second marriage during the subsistence of his first marriage, children born cut of such second marriage would still be legitimate though the second marriage itself would be void. The Court, therefore, went on to hold that such children would be entitled to the pension but not the second wife, It was, therefore, bound to be considered by the High Court as to whether Vidhyadhari being the nominee of Sheetaldeen could legitimately file an application for succession certificate and could be granted the same. The law is clear on this issue that a nominee like Vidhyaahari who was claiming the death benefits arising out of the employment can always file an application under Section 372 of the Succession Act as there is nothing in that section to prevent such a nominee from claiming the certificate on the basis of nomination. The High Court should have realised that Vidhyadhari was not only a nominee but also was the mother of four children of Sheetaldeen who were the legal heirs of Sheetaldeen and whose names were also found in Form A which was the declaration of Sheetaldeen during his lifetime. In her application Vidhyadhari candidly pointed, out the names of the four children as the legal heirs of Sheetaldeen. No doubt that she herself has claimed to be a legal heir which status she could not claim but besides that she had the status of a nominee of Sheetaldeen. She continued to stay with Sheetaldeen as his wife for long time and was a person of confidence for Sheetaldeen who had nominated her for his provident fund, Life Cover Scheme, pension and amount of life insurance and amount of other dues. Under such circumstances she was always preferable even to the legally wedded wife like Sukhrana Bai which had never stayed with Sheetaldeen as his wife and who had gone to the extent of claiming the succession certificate to the exclusion of legal heirs of Sheetaldeen. In the grant of succession certificate the court has to use its discretion where the rival claims, as in this case, are made for the succession certificate for the properties of the deceased. The High Court should have taken into consideration these crucial circumstances. Merely because Sukhrana Bai was the legally wedded wife that by itself did not entitle her to a succession certificate in comparison to Vidhyadhari who all through had stayed as the wife of Sheetaldeen, had borne his four children and had claimed a succession certificate on behalf children also. In our opinion, the High Court was not justified in granting the claim of Sukhrana Bai to the exclusion not only of tree nominee of Sheetaldeen but also to the exclusion of his legitimate legal heirs.".
10. The Hon. Supreme Court has held that the children born to a second wife are entitled to a share and they can claim such a right. The appellant - Mahendra being the only son born to Padmavathi and Jayaramu, when the respondents have settled the family pension and all other benefits to his mother - Padmavathi, respondents cannot contend that the appellant being a son born to a second wife, is not entitled for appointment on compassionate grounds. According to us, the stand taken by the respondents is erroneous and liable to be set aside.
11. The learned Single Judge did not consider the decisions of the Hon'ble Supreme Court in Rameshwari Devi and Vidhyadhari's cases. The Hon'ble Supreme Court in the case of Rameshwari Devi has ruled that even if a government servant had contracted a second marriage during the subsistence of the first marriage, the children born out of the second marriage would still be legitimate, though the second marriage itself would be void. When the Hon'ble Supreme Court has held that the children born to second wife during the subsistence of first marriage are legitimate children, an employer cannot deny the right of the children born to the second wife of the employee as illegitimate, only for the purpose of compassionate appointment. When all retirement benefits including the pension have been settled in favour of appellant's mother Padmavathi, in view of the decision of the Hon'ble Supreme Court in the case of Rameshwari Devi, the status of the appellant has to be considered as legitimate child of the deceased Jayaramu and appointment on compassionate grounds is to be given to a son or daughter or widow of the deceased employee and the employer cannot, deny the appointment on compassionate ground to a son or daughter born to the second wife of the employee, when their status has been recognized by the Hon'ble Supreme Court as legitimate children.
12. In this view of the matter, we are of the considered view that the appellant has to be considered as a legitimate son of the deceased employee. When he is considered as legitimate son of deceased and when he has succeeded to all the rights to claim share of the deceased employee including the DCRG etc., since a right to claim compassionate appointment would arise only on account of the death of the government employee, such a right would also accrue to the son or daughter born through the second wife.
13. In the circumstances, this appeal is allowed. The order passed by the learned Single .Judge in W.P. NO. 4409/2007 dt. 21.3.2007 is set aside. The writ petition is partly allowed by quashing the impugned endorsement dated 25-2-2006 passed by respondent No.1. Respondent No.1 is directed to consider the plea of the appellant dated 1-6-2005 seeking appointment on compassionate grounds in the light of the observations made hereinabove.