'There May Be Illegitimate Parents But No Illegitimate Children': Karnataka High Court Strikes Down Condition Denying Compassionate Appointment To Children In Second Marriage

The Karnataka High Court has set aside a circular issued by the Karnataka Power Transmission Coporation Ltd by which it denied appointment on compassionate grounds to the second wife and her children of a deceased employee as the marriage has taken place during the subsistence of the first marriage. A division bench of Justice B V Nagarathna and Justice Hanchate Sanjeevkumar said "We set aside the Orders of the learned Single Judge in the Writ Petition as well as the Review Petition. We quash the communication dated 11.03.2015 addressed to the fourth respondent by the third respondent (Annexure-B). We also quash the Circular dated 23.09.2011 to the extent in clause(2)." Clause 2 read thus: "Under no circumstances, the second wife nor her children are eligible for compassionate grounds appointment, if the marriage has taken place during the subsistence of the first marriage." The court allowed the appeal filed by K. SANTHOSHA and directed the authorities to consider his application seeking appointment on compassionate grounds in accordance with the observations made above and in accordance with law. The said consideration shall be made within a period of two months from the date of receipt of certified copy of this judgment, as the employee died on 10.06.2014, which was seven years ago." Case background: The petitioner is the son of deceased Kabbalaiah, who was working as Lineman Grade-II with the BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED. He died in harness on 10.06.2014. During his lifetime, he was married for the second time during the subsistence of his first marriage. Out of the second marriage, the petitioner was born. On the death of his father, petitioner made an application seeking appointment on compassionate basis under the Regulations titled Karnataka Electricity Board Employees' Recruitment (Appointment on Compassionate Grounds) Regulations. The respondents rejected the claim of the petitioner on the ground that he was the son of the second wife of the deceased employee Kabbalaiah and his father had married his mother during the subsistence of his first marriage. Therefore, he was not entitled to appointment on a compassionate basis. The respondent relied on the Circular dated 23.09.2011 issued by respondent No.1 wherein in Clause 2, dealing with the eligibility for appointment on compassionate basis, it was stated that neither the second wife nor her children are eligible for compassionate grounds appointment, if the marriage had taken place during the subsistence of the first marriage. The petitioner challenged the circular and the communication issued to him rejecting his application dated 11.03.2015, before the high court. The single judge bench rejected his petition, even in a review petition the court held against him. Following which he filed an appeal. The submission of the petitioner. Advocate SUBRAMANYA BHAT argued that Regulations 2(1)(a) and 3(2) state that the dependent son is entitled to be appointed on a compassionate basis. It was also submitted that what is stated in Regulation 3(2)(a) is 'son', the same is not qualified by saying that the son has to be born out of a valid wedlock. It was submitted that any male child born to a couple is a 'son'. "The Rule making authority therefore has deliberately used the expression 'son' and has not restricted it by any other condition such as to the effect that the son should have been born out of a valid marriage of the deceased employee who died while in service." Further, it was said that the Circular dated 23.09.2011 stating that, under no circumstances, the second wife or her children are eligible for compassionate grounds appointment, if the marriage is taken place during the subsistence of first marriage, is contrary to the Regulations. "It was submitted that when Regulations do not restrict the claim of a son, the Circular cannot put an embargo on such a claim by stating that neither the second wife nor her children are eligible for appointment on compassionate basis, if the marriage has taken place during the subsistence of first marriage," Bhat contended. Attention was also drawn to section 16 of the Hindu Marriage act and the judgement of the Supreme Court in the case of Union of India vs. V.R.Tripathi [(2019) 14 SCC 646], (V.R.Tripathi), wherein it has been categorically observed that, though there may be restriction to an illegitimate child succeeding to the ancestral properties of the deceased parent and the right is only with regard to the separate property of the deceased parent when their marriage is void, the same -: 8 :- cannot be construed as a restriction so as to prevent the son born out of a void marriage to claim appointment on compassionate basis. Court findings: Firstly the court considered the definition of 'family' in Regulation 2(1)(b) and the 'Eligibility for Appointment' under Regulation 3(2) as well...

'There May Be Illegitimate Parents But No Illegitimate Children': Karnataka High Court Strikes Down Condition Denying Compassionate Appointment To Children In Second Marriage

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