No Compassionate Appointment to children born out of bigamous marriage: Madras HC [Read Judgment]

No Compassionate Appointment to children born out of bigamous marriage: Madras HC [Read Judgment]

Madras High Court has held that compassionate appointment cannot be granted to the legal heirs of the deceased through the second wife. Justice Pushpa Sathyanarayana, dismissing the challenge against denial of compassionate appointment on the ground that he is son of a deceased Government employee (Sub Inspector of Police) through his second wife, held that there is no bar for the Government to make it as a policy that second wife and children are not allowed to get compassionate appointment under the Service Rules.

 The Court has also observed that compassionate appointment and right to inherit property have no co-relation, nor can be equated in any manner.

CONDITIONS INTRODUCED TO ENCOURAGE MONOGAMY

The court agreed with the Government that the conditions introduced in matters of compassionate appointment is part of Government policy to encourage Monogamy. The court said:

“It is a policy of the Government that monogamy should be the Rule. As per the Service Rules, no Government servant shall enter into second marriage when the first spouse is living. Even in case of persons belonging to religions where plurality of wives is permitted, a Government servant cannot take a second wife, except with the prior permission of the Government. Therefore, in order to encourage monogamy, the Government has introduced these conditions which has stood the test of time and not challenged so far by anybody. Therefore, certain restrictions on Fundamental Rights and Personal Law are made in Service rules in the larger public interest.”

GOVT. POLICY DENYING COMPASSIONATE APPOINTMENT TO DESCENDENTS OF SECOND WIFE NOT BARRED

Dismissing the challenge against the denial of compassionate appointment, the Court held:

“If once the second marriage itself is prohibited irrespective of the question whether it is permitted in Personal Law or not and when it is considered to be an offence under section 494 of the IPC, there is no bar for the Government to make it as a policy that second wife and children are not allowed to get compassionate appointment under the Service Rules. Rule is clear that second widow and her 6 children are not to be considered unless the administration has permitted the second marriage, in special circumstances, taking into account the Personal Law, etc.”

COMPASSIONATE APPOINTMENT NOT TO BE EQUATED WITH PROPERTY INHERITENCE

The contention of the petitioner that Section 16 of the said Hindu Marriage Act legitimizes the children born to a couple whose marriage may not be held legally valid and the children are entitled to inherit the property of the parents, was rejected by the Court by holding that right to get compassionate appointment and that to inherit property is unrelated to each other. Court held as follows:

“Firstly, compassionate appointment and right to inherit property have no co-relation, nor can be equated in any manner. The compassionate appointment is not a property which can be subject matter of alienation and can be bequeathed whereas the devolving of property of a person is governed by the law, may it be customary or may it be statutory law, whereas the service and benefit arising out of services are governed by the frame of the contract of service or the rules governing the service of the employees and by the scheme, if framed by the employer. The compassionate appointment depends solely upon the frame of contract between the employer and employee and cannot be made subject matter to be governed by the personal law, when the employer has not provided so. Therefore, in the opinion of this Court, merely because illegitimate child has been put at par in the matter of inheritance, by specific and statutory provision, its benefit cannot be extended, so as to put a burden upon the employer when the employer specifically has disallowed such benefit to such successor of the employee.”

Read the Judgment here.