@JUDGMENTTAG-ORDER
V. Dhanapalan, J.@mdashThis Writ Petition has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records of the first respondent, dated 03.09.2004, relating to the proceedings in ROC No. 3637/2002/C.1, in confirming the the proceedings of the second respondent, dated 10.06.2002, in A. No. 147/99, quash the same and consequently direct the respondents to reinstate the petitioner in service as Junior Assistant with effect from 10.06.2002 with all attendant benefits.
2. Petitioner''s father, by name, Shaik Hyder was working in Tamil Nadu Judicial Ministerial Service as a Junior Assistant. He died in harness on 14.08.1991 while he was serving as Junior Assistant in Principal District Munsif Court, Villupuram. After his demise, the petitioner prayed for appointment on compassionate grounds, and, by an order, dated 13.01.1992, he was given appointment accordingly. Pursuant to his appointment, the petitioner was discharging his duties without any complaint whatsoever.
3. While so, on 15.02.1999, one Shaik Jaffar, paternal uncle of the petitioner, had given a complaint to the second respondent herein, alleging that the petitioner was not the son of the deceased Shaik Hyder and that he was born to one Azeema Bi and one Gaffar and requested to initiate disciplinary action against the petitioner and his mother. Since no action was taken on the said complaint, the said Shaik Jaffar filed a writ petition before this Court vide W.P. No. 375 of 2001, praying for a direction to initiate appropriate action on the complaint and, by an order, dated 09.01.2001, the said Writ Petition was disposed of, directing the respondents herein to initiate action and pass orders in accordance with law.
4. Subsequently, explanation was called for from the petitioner on 22.02.2001 and the petitioner offered explanation on 03.04.2001. Since the explanation was found not satisfactory, a charge was framed against the petitioner under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, (in short, the Rules), as follows:
That you, the said Thiru H.Anwar Basha, Junior Assistant, District Munsif Court, Kallakurichi, got himself appointed as Junior Assistant on compassionate grounds in the Judicial Department by suppressing and misrepresenting the facts despite being fully aware that he is not the son of the deceased Government servant and thereby became liable to be discharged for grave misconduct.
5. To the above charge, the petitioner submitted his explanation, stating that the complainant was his paternal uncle; Shaik Hyder was his father and not Gaffar; Shaik Hyder nominated the mother of the petitioner, namely, Azeema Bi, as his heir in his service records; the complainant himself had taken all initiatives to celebrate the marriage of the petitioner as elder son of the family and even in the marriage invitation, the complainant himself referred the petitioner as his younger brother Shaik Hyder''s son; after the death of the petitioner''s first wife, the complainant himself took all efforts to celebrate his second marriage and even in that marriage invitation, he mentioned the petitioner as the elder son of his younger brother; the complainant had also presented a written undertaking to the Jamat required for the marriage that the elder son of the complainant acted as Vakil for the said marriage; the complainant himself was helpful to get the petitioner appointed on compassionate grounds and, later, due to some property disputes between the complainant''s family and the petitioner, the complainant had come forward with a false complaint; the complainant himself had stated no objection for payment of the monetary benefits to the mother of the petitioner after the death of his father Shaik Hyder; the petitioner and his mother were not aware of the alleged Gaffar; according to the petitioner''s mother, the petitioner and the other children were born to her through Shaik Hyder alone and the petitioner had never intended to cheat the Judicial Department.
6. Pursuant to the said explanation, an enquiry was conducted. Complainant was examined himself as P.W.1; he also examined P.Ws.2 to 8 and marked Exs.P-1 to P-22 on his side. Petitioner was examined as D.W.1; he also examined D.Ws.2 to 7 and marked exhibits D-1 to D-9 on his side to show that he was the son of the deceased Shaik Hyder. In the said enquiry, mother of the petitioner was also examined as D.W.6. She had clearly deposed that she and Shaik Hyder were cohabiting together for several years; during that period, she gave birth to three children, including the petitioner; in the year 1975, their marriage was held in Sandaipettai Mosque, Thirukkoilur; at the time of marriage, her female child, namely, younger sister of the petitioner was in her womb and Ex.P-20 is the relevant page showing her marriage in the Marriage Register. She further deposed that she was unaware of Gaffar and she had no intimacy with anybody else and she denied that the petitioner and the other children were born to her through the alleged Gaffar.
7. After a detailed enquiry, the second respondent herein, who was the Enquiry Officer, by proceedings dated 15.05.2002, filed an Enquiry Report, wherein it was found that the petitioner was born to Shaik Hyder; the petitioner''s mother was married to Shaik Hyder in the year 1975 and the alleged relationship of the mother of the petitioner with Gaffar was not correct. However, the Enquiry Officer, in spite of observing that the petitioner was born to Shaik Hyder, found that since the petitioner was born in the year 1966 and the marriage of the mother of the petitioner with Shaik Hyder was held only in the year 1975, the petitioner was not the legitimate child of Shaik Hyder. The Enquiry Officer also found that even though an acknowledgement was made by Shaik Hyder and the mother of the petitioner with regard to the paternity of the petitioner, the same could not be legitimated and, therefore, the petitioner was not the legitimate son of Shaik Hyder and that the law did not approve the appointment of the petitioner on compassionate grounds. It was also the finding of the Enquiry Officer that the term "son" referred to legitimate son in the eye of law and illegitimate son could not be held to be a lawful son for the purpose of securing the benefit available to him on the death of his father and found that the charge against the petitioner was held proved.
8. Subsequent to the findings in the disciplinary proceedings, the petitioner offered his further explanation on 31.05.2002, submitting that it was rightly found that he was born to Shaik Hyder and the marriage between his father and mother was not void and so far as the paternity was concerned, it was found that he was born to his mother only through Shaik Hyder and there was absolutely no material to disbelieve the statement of his mother. The petitioner also submitted that once it was proved that he was the son of Shaik Hyder, there could be no doubt as to his legitimacy and he was entitled to be considered for appointment on compassionate grounds and, therefore, he requested the second respondent to drop further proceedings.
9. However, the second respondent, by his proceedings, dated 10.06.2002, on the basis of the Enquiry Report, found that there was no further submission in the explanation contrary to the evidence during the enquiry and also there were no convincing materials to offer a contrary finding and, accordingly, imposed a penalty of removal from service under Rule 8 Clause (vii) of the Rules.
10. Aggrieved over the same, the petitioner filed an appeal before the first respondent on various grounds. However, the first respondent, by the impugned proceedings, dated 03.09.2004. dismissed the appeal, confirming the order of the second respondent. Hence, this Writ Petition.
11. Second respondent has filed a counter affidavit, stating that One Shaik Hyder was working in Judicial Department as Junior Assistant in Principal District Munsif Court, Villupuram, and he died in harness on 14.08.1991; after the demise of the said Shaik Hyder, Tr.H.Anwar Basha got appointment in Judicial Department on compassionate grounds on the ground that he was the eldest son of the deceased Government servant, by means of an order of the District Judge, South Arcot, Cuddalore, in A. No. 13/92, dated 13.01.1992; the writ petitioner claimed himself to be the son of the said Shaik Hyder; mother of the petitioner is Azeema Bi and that the writ petitioner further stated that Azeema Bi got five children, including himself through Shaik Hyder.
12. It is also stated in the counter that one Shaik Jaffar, elder brother of deceased Government servant, preferred a complaint, dated 15.02.1999, to the then District Judge, Villupuram, alleging that the writ petitioner was not at all the son born to the deceased Government servant Shaik Hyder, but he was the off-spring of one Gaffar, and praying to initiate disciplinary action against the petitioner and his mother; since no action was taken upon the said complaint, the complainant filed W.P. No. 375 of 2001 before this High Court to initiate appropriate action against the petitioner and this High Court was pleased to direct this respondent to deal with the complaint on merits and pass appropriate orders; thereafter, this Court called for explanation from the present writ petitioner H.Anwar Basha and he submitted his explanation. Since the then Principal District Judge, Villupuram, was not satisfied with the explanation, charge was framed against the petitioner and an enquiry was held by the Principal District Judge, Villupuram; the Enquiry Officer conducted a detailed enquiry and concluded that the writ petitioner was not the legitimate son of Shaik Hyder and that the law did not approve his appointment on compassionate grounds and, thus, arrived at the conclusion that the writ petitioner was guilty of the charge framed against him; a copy of the order of the said findings was furnished to the writ petitioner to submit his further representation, if any, on the findings and, accordingly, the petitioner submitted his further representation.
13. The counter further goes to the effect that after a perusal of the further representation of the writ petitioner, the then Principal District Judge, Villupuram, passed final orders in A. No. 147/1999, dated 10.06.2002, removing the writ petitioner from service under Rule 8 (vii) of the Rules; aggrieved over the said order, the writ petitioner preferred an appeal before the first respondent, who, by the impugned proceedings, dated 03.09.2004, dismissed the appeal.
14. As per the counter, it is in the evidence of Azeema Bi (D.W.6), mother of the writ petitioner, that, she deposed that she had developed intimacy with Shaik Hyder before 40 to 45 years back and given birth to four children, including the writ petitioner, and that their marriage was lawfully held on 19.03.1975; in the Service Book of the petitioner, the date of birth was mentioned as 10.06.1966; it was held in the findings of the Enquiry officer that the legitimacy of the children, including the petitioner, born to Azeema Bi through Shaik Hyder was at stake, though there was no room to brush aside her oral testimony with reference to paternity of her children and her marriage with Shaik Hyder on 19.03.1975 could not be held to be void and, in the enquiry, it was found that the petitioner was not the legitimate son of Shaik Hyder, since the petitioner, his sister and brothers were born to Azeema Bi through Shaik Hyder prior to their lawful marriage.
15. The counter also says that it has been established in the inquiry by means of Exs.P-20 to P-22 that the marriage of Shaik Hyder and Azeema Bi was celebrated on 19.03.1975 in Santhapettai Jamayath at Tirukoilur, but, the entry in Ex.P-16, first page of Service Book Ex.P-15, of the petitioner showed that the petitioner was born on 10.06.1966; hence, it was held that the petitioner was not the legitimate son of Shaik Hyder; further, developing intimacy and living together as husband and wife without a valid marriage being solemnised is not permitted under any law or by a civilised society; according to Mohammedan Law, it is "ZINA"; a child born through Zina cannot be made legitimate by mere acknowledgement and no question of presumption on the concept of long and continuous cohabitation of a man with a woman without valid marriage would arise in these proceedings; hence, the petitioner is not the legitimate son of Shaik Hyder and, as such, this Writ Petition is liable to be dismissed.
16. Mr.AR.L.Sundaresan, learned Senior Counsel for the petitioner, would contend that the complaint having been found frivolous, ought to have been closed completely without any adverse findings against the petitioner; it has been rightly found in the enquiry of the second respondent that the marriage between the mother of the petitioner Azeema Bi and the father of the petitioner Shaik Hyder is not void and further so far as the paternity is concerned, the petitioner and three other children were actually born through Shaik Hyder and there was absolutely no material to disbelieve the statement of the mother of the petitioner; once it is proved that the petitioner is the son of Shaik Hyder, there can be no doubt as to the legitimacy and the petitioner is entitled to be considered for appointment on compassionate grounds, so also when it is found that there was no marriage to the mother of the petitioner with Gaffar, the marriage between the father and the mother of the petitioner is lawful and the children begotten by them including the petitioner are legitimate; it is apparent from the oral evidence of the mother of the petitioner that she was living and cohabiting with the father of the petitioner for about 45 years and such a long and continuous cohabitation and procreation of children raises a strong presumption of valid marriage between the father and the mother, which points to the legitimacy of the children, including the petitioner; the father, namely, Shaik Hyder acknowledged the paternity of the petitioner and admitted the petitioner as his son and, hence, legitimacy has to be acknowledged and accepted.
17. The quintessence of the learned Senior Counsel is that the relationship between the father and the mother of the petitioner prior to 1975 can, by no stretch of imagination, be said to be adulterous and they were husband and wife throughout and performance of the marriage in 1975 was only the reiteration of their relationship, which would not take away the law effect of matrimonial relationship, which is established by substantive evidence and admissible in Muslim Personal Law that existed between the parties prior to such superfluous marriage. According to the learned Senior Counsel, the mother of the petitioner has clearly admitted the paternity of the petitioner and such admission by the mother is a substantive evidence in Muslim Law unless the father disputes the same and such a dispute does not exist in the present case and, as such, the birth of the petitioner can only be termed to be regular and not void in Muslim Personal Law. The further contention of the learned Senior Counsel is that the complainant himself has accepted the paternity of the petitioner and celebrated the marriage of the petitioner and even in the marriage invitation, it has been clearly admitted that the petitioner is the elder son of Shaik Hyder and only due to personal animosity between the families, the alleged complaint has been given, which is palpably false. In his last limb, the learned Senior Counsel has submitted that because of the erroneous finding of the respondents, the petitioner is out of service from the year 2002 and suffering without any employment; the object of compassionate appointment is only to ameliorate the hardship of the family of the deceased, by giving appointment to any one of the dependants; there is no restriction to give appointment only to a legitimate son and since the petitioner was one of the dependants, he was rightly considered and appointed and, further, the petitioner''s name also found place in the Service Register of the Government servant as his son; legitimacy or illegitimacy would be material only for succession in Personal Law and it does not have any bearing for compassionate appointment; the petitioner has served for more than ten years as on the date of removal from service and his family and himself are suffering on account of the impugned order, which is beyond the scope and object of compassionate appointment and, hence, the same is to be set aside. In support of his contentions, the learned Senior Counsel has cited the following decisions:
(i)
As there was no marriage between the plaintiff''s father and the defendant''s mother prior to their birth as evidenced by Exhibits A-2 and A-3, they could not be held to be legitimate sons of the plaintiff''s father by relying on the doctrine of ''acknowledgement''. A child born of ''zina'' could not be made legitimate by acknowledgement. Similarly, the defendants, who were born before the date of their mother''s marriage with the plaintiffs father, could not be held to be legitimate sons of the plaintiff''s father by relying on the doctrine of acknowledgement.
The Mohamedan law of acknowledgement of paternity could be invoked only where the factum of marriage or the exact time of marriage had not been proved. The doctrine of acknowledgement is based on the assumption of a lawful union between the parents of the acknowledged child. The doctrine, however, is not applicable where the lawful union between the parents of the child is not possible as in the case of incestuous intercourse or on adulterous connection. The doctrine is also not applicable where the marriage necessary to render a child legitimate is disproved.
(ii)
In the said case, appellants 2 to 6 were born prior to the date on which amendments were introduced in Section 16(1) of the Hindu Marriage Act, and, consequently, it was held that they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislative prohibition on the second marriage, be treated as legitimate, and would, therefore, inherit the properties of their father u/s 16(3) of the Act.
18. Per contra, the learned Special Government Pleader appearing for the respondents has cited the following authorities:
(i)
Compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. The very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years.
(ii)
Under the Muslim law also, a distinction has been drawn between void marriages and irregular marriages. The same has been dealt with in Mulla''s Principles of Mohamedan Law" in paragraphs 260 to 264. Paragraphs 260,261 and 262 deal with complete prohibition of marriage between a man and the persons included therein and any marriage in violation of such provision would be void from its very inception (batil).
On consideration of the decisions of the various High Courts referred to hereinabove and the provisions relating to void marriages and marriages which are merely irregular, we are also of the view that the decision rendered by the Bombay High Court in the case of Tajbi''s case (supra) is correct. Since a marriage, which is temporarily prohibited may be rendered lawful once the prohibition is removed, such a marriage is in our view irregular (fasid) and not void (batil).
The answer to the question raised at the very outset, therefore, is that the bar of unlawful conjunction (jama bain-al-mahramain) renders a marriage irregular and not void. Consequently, under the Hanafi law as far as Muslims in India are concerned, an irregular marriage continues to subsist till terminated in accordance with law and the wife and the children of such marriage would be entitled to maintenance under the provisions of Section 125 of the Code of Criminal Procedure.
19. We have considered the submissions made by the learned Senior Counsel for the petitioner and the learned Special Government Pleader appearing for the respondents; perused the records and also the decisions cited by the learned Counsel.
20. An analysis of the factual circumstances reveals that Shaik Hyder was working as a Junior Assistant in Tamil Nadu Judicial Ministerial Service at Principal District Munsif Court, Villupuram, and he died in harness on 14.08.1991. Therefore, the petitioner, who is said to be the son of Shaik Hyder, made an application for appointment on compassionate grounds. Thereafter, the competent authority, namely, the Principal District Judge, South Arcot, Cuddalore, on a perusal of his application and scrutiny of the relevant documents and the eligibility conditions, appointed him as a Junior Assistant by proceedings in A. No. 13/92, dated 13.01.1992. Since then, he had been continuing in that capacity till he was removed. It is seen from the records, that, on 15.02.1999, the paternal uncle of the petitioner had given a complaint to the Principal District Judge, Villupuram, alleging that the petitioner was not the son of the deceased Shaik Hyder and he was born to one Azeema Bi through one Abdul Gaffar and requested the second respondent to initiate disciplinary action against the petitioner and his mother. Finding no action on the complaint, the said Shaik Jaffer moved this Court and filed a Writ Petition No. 375 of 2001 praying for a direction to initiate appropriate action on the complaint and, this Court, by an order, dated 09.01.2001, disposed of the said Writ Petition, directing the respondents to initiate action against the petitioner and pass orders in accordance with law.
21. That being the position, on 22.02.2001, the second respondent called for an explanation from the petitioner in respect of the complaint and, accordingly, the petitioner had offered explanation on 03.04.2001. However, the second respondent, not satisfied with the explanation of the petitioner, framed a charge against the latter under Rule 17 (b) of the Rules in A. No. 147/99, dated 09.05.2001, and the said charge reads as under:
That you, the said Thiru H.Anwar Basha, Junior Assistant, District Munsif Court, Kallakurichi, got himself appointed as Junior Assistant on compassionate grounds in the Judicial Department by suppressing and misrepresenting the facts despite being fully aware that he is not the son of the deceased Government servant and thereby became liable to be discharged for grave misconduct.
22. To the above charge, the petitioner submitted his explanation. Thereafter, the second respondent passed an order, placing the petitioner under suspension, pending enquiry. An Enquiry Officer was appointed and he proceeded to conduct the enquiry and the report of the Enquiry Officer was submitted vide proceedings in A. No. 147/99, dated 15.05.2002. In the enquiry report, the Enquiry Officer, after conducting the enquiry, submitted the report, holding that since the delinquent was not the legitimate son of Shaik Hyder, the law did not approve his appointment on compassionate grounds; the term "son" refers to legitimate son in the eye of law and an illegitimate son could not be held to be a lawful son for the purpose of securing benefits available to him on the death of his father and that the charge against the delinquent had been proved and held the delinquent guilty of the charge framed.
23. Based on the said enquiry report, the disciplinary authority, who is the second respondent herein and also Enquiry Officer, passed an order, imposing penalty of removal from service on the petitioner under Rule 8 (vii) of the Rules, against which the petitioner preferred an appeal to the first respondent on 08.07.2002 and the said appeal was dismissed, confirming the order of the original authority.
24. The complainant was examined himself as P.W.1 and he also examined P.Ws.2 to 8 and marked Exs.P-1 to P-22 on his side. The said exhibits include Ex.P-1, dated 22.03.1999, Birth Certificate of one female child; Ex.P-2, dated 18.01.2001, copy of the notice issued by the complainant through his counsel; Ex.P-3, dated 25.01.2001, reply of Jamatdars; Ex.P-4, dated 15.02.1999, copy of the complaint written to the District Judge; Ex.P-5, dated 23.09.1998, certified copy of the plaint in O.S. No. 819 of 1998; Ex.P-6, dated 30.09.1998, certified copy of the served summon to the delinquent; Ex.P-7, dated 02.11.1999, certified copy of the written statement filed by the delinquent in O.S. No. 819 of 1998; Ex.P-8, dated 11.06.1962, entry in Sl. No. 33 in page No. 4 of the School Admission Register of Devapandalam Urdu Elementary School for Boys and also other exhibits Exs.P-9 to P-22, namely, Service Book of Shaik Hyder; application of Shaik Hyder for admission to G.P.F.; General Provident Fund Nomination of Shaik Hyder; entries in service register of H.Anwar Basha; Family Benefit fund Nomination of Shaik Hyder; list of family members; Marriage Register maintained by Santhapettai Jamath, Tirukoilur etc. On the other hand, the petitioner was examined himself as D.W.1 and he also examined D.Ws.2 to 7 and marked Exs.D-1 to D19 on his side. The said exhibits include Ex.D-1, black and white photo in which P.W.1 and his family members were figured, Ex.D-2, colour photo in which P.W.1''s son is also figured; Ex.D-3, colour photo in which two ladies and two children are figured; Ex.D-8, dated 11.10.1991, two No Objection Certificates given by Shaik Jaffar; Ex.D-9, dated 19.12.1977, Nomination for ADADA Account of Shaik Hyder; Ex.D-10, dated 19.12.1977, Family Pension Nomination of Shaik Hyder; Ex.D-11, dated 21.07.1981, Secondary School Cumulative Record of the petitioner; Exs.D-12 and D-13, dated 07.03.1990 and 18.06.1995, marriage invitations of the petitioner; Ex.D-16, dated 07.03.1990, Marriage Register (page No. 119); Ex.D-17, dated 07.03.1990, Marriage Register (page No. 120) and Ex.D-19, dated 18.06.1995, Marriage Register (page No. 124).
25. From the above, it is seen that oral evidence was recorded in the enquiry, in which mother of the petitioner was examined as D.W.6. She deposed that she and Shaik Hyder were cohabiting together for several years and during that period, she gave birth to three children, including the petitioner and in the year 1975 only their marriage was held in Santhapettai Mosque at Tirukoilur. She also stated that at the time of marriage, her female child, namely, the younger sister of the petitioner was in her womb; Ex.P-20 is the relevant page contained in the Marriage Register; she is unaware of Abdul Gaffar; she had no intimacy with anybody else and she denied that the petitioner and other children were born through the said Abdul Gaffar.
26. On a perusal of the enquiry report, dated 15.05.2002, filed by the second respondent, it is seen that the petitioner was born to Shaik Hyder and the petitioner''s mother was married to Shaik Hyder in the year 1975. It was specifically mentioned that the petitioner was born on 10.06.1966. However, the marriage of the parents was held in the year 1975. In order to establish the alleged relationship of the parents of the petitioner, as claimed by the complainant Shaik Jaffer, there is no proof or any material evidence and also any finding of the Enquiry Officer to that effect. One of the materials which was relied upon by the Enquiry Officer was Ex.P-5, certified copy of the plaint in O.S. No. 819 of 1998, wherein the petitioner was shown as the son of Gaffar Sahib and the summons was served on the petitioner. The enquiry findings further reveal that the delinquent is said to have received summons after accepting its contents by making an endorsement on the reverse of the summons. Further, the Junior Bailiff of the Court also stated that he served summons on the delinquent. However, the Enquiry Officer had deeply concentrated on giving findings based on the plaint, wherein the delinquent was shown as son of Gaffar Sahib, and also taking into account the evidence of the Bailiff and also Ex.P-8, School Admission Register of Devapandalam Elementary School. However, the delinquent did not admit the entries in Ex.P-8. P.W.2 is a teacher in the above school. He, though admitted about the said entries, in the cross-examination, stated that he could not state definitely whether the name Gaffar refers to father of the delinquent. In addition, the Head Clerk of District Court, Villupuram, was examined as P.W.4 and Exs.P-11 to P-19 and D-9 and D-10 were marked through him. Ex.P-13 is the application given by Shaik Hyder for admission to General Provident Fund, in which he replied as "not acquired", for a query "whether the applicant has a family or not". Further, in Ex.P-14, he has nominated the complainant, his elder brother, as nominee. However, in the subsequent nomination in Ex.P-17, Shaik Hyder has mentioned the name of his wife Azeema Bi, as the nominee, so also in Ex.P-18, nomination given by Shaik Hyder for the purpose of Special Provident Fund-cum-Gratuity Scheme. Ex.P-19 is the list of family members of Government Servant furnished by Shaik Hyder, wherein the names of Azeema Bi, the delinquent and other two daughters and two sons are mentioned. Similarly, in Ex.D-9, Nomination form given by Shaik Hyder, the name of Azeema Bi is shown as the nominee and the said form was furnished on 19.12.1977. Ex.D-10 is the Nomination for Family Pension, in which Shaik Hyder had nominated his wife Azeema Bi for the benefit. This was also given on 19.12.1977. The marriage between Shaik Hyder and Azeema Bi which took place on 19.03.1975 in Santhapettai Jamath, Tirukoilur, is not disputed. The complainant admitted the said marriage. All the above circumstances would show that Azeema Bi was the wife of Shaik Hyder. It is clear from the above records and the Marriage Registers Exs.P-20 and P-21 and also the oral evidences that the delinquent Anwar Basha was born to the parents, namely, Shaik Hyder and Azeema Bi. However, the date of birth of the delinquent was prior to the marriage of the parents. Therefore, the status of the delinquent at the time of his application for compassionate appointment has to be decided.
27. The legality of status of the children born to the legally wedded parents prior to the marriage assumes significance in this case. Even on assuming that the marriage is irregular or void, if the petitioner is a dependant of the deceased Government Servant, he would be entitled for the benefit. In the Government Order in G.O.Ms. No. 225, dated 15.02.1972, for providing employment assistance to a member of a deceased Government Servant, the procedure for recruitment through employment exchanges to all the posts which fall outside the purview of Tamil Nadu Public Service Commission was relaxed in favour of son/daughter/near relative, who would take care of the family of the Government Servant, who dies in harness, leaving his family in indigent circumstances. However, in G.O.Ms. No. 73, dated 26.10.1983, the eligibility for appointment on compassionate grounds is prescribed, as per which, the "dependant" of the deceased Government Servant who dies in harness shall mean only the widow or the husband (as the case may be), son, unmarried daughter, legally adopted son and legally adopted unmarried daughter of the deceased Government Servant and they alone are eligible for appointment on compassionate grounds. Therefore, the eligibility criteria prescribed to get employment assistance to families of the deceased Government Servants would make clear that the dependants of the deceased Government Servant include the son and it does not denote whether the son should be a legitimate or illegitimate son of the parents.
28. It is seen from the evidence of the complainant that he had admitted that there was a marriage between Shaik Hyder and Azeema Bi on 19.03.1975 and in the year 1977 itself, the mother of the petitioner was a mentioned as nominee of Shaik Hyder. Except the complainant, no other person has agitated over the appointment of the petitioner. Moreover, the petitioner, after his appointment in the year 1992, continued to work till the year 1999, the date on which the complainant raised an issue. If the complainant had a real grievance, he would have agitated the same at the appropriate time. Having kept quiet all along, all of a sudden, he raised an issue that the petitioner is not the legitimate son of Shaik Hyder. It is not in dispute that the mother of the delinquent was Azeema Bi and her cohabitation with Gaffar, as alleged by the complainant, prior to marriage was not proved in a manner known to law. The birth of the delinquent on 10.06.1966 i.e., prior to marriage and the cohabitation of Azeema Bi with Shaik Hyder and Shaik Hyder''s nomination that the delinquent is his dependant all go to show the petitioner''s claim as a dependant of the deceased Government Servant and that he is the son of the parents, namely, Shaik Hyder and Azeeme Bi, which have more relevance. In order to achieve the object of providing employment assistance to the bereaved family, it would be necessary to examine whether the delinquent is supporting the family to mitigate the sufferings of that family, relieving the bereaved family from the indigent circumstances. The making of application by the delinquent and his subsequent appointment on compassionate grounds have not at all been questioned, except by making a complaint by the paternal uncle of the delinquent. The consequent order of this Court, in the writ petition filed by the paternal uncle of the petitioner, directing the second respondent to continue proceedings against the delinquent, was the circumstance under which the charge was framed. Therefore, the status of the person whether he is legitimate or illegitimate is a matter for concern before the appropriate forum and the same cannot be agitated before the Enquiry Officer, unless there is a material to show that the delinquent was not the son of the parents viz., Shak Hyder and Azeema Bi and in the absence of framing of a proper charge to that effect, the Enquiry Officer cannot proceed to decide the same. Hence, the finding of the Enquiry Officer with regard to deciding the status of the delinquent as illegitimate for the purpose of providing compassionate appointment is not reasonable and the rationale behind his conclusion is only to frame a charge against the delinquent.
29. Coming to the charge framed against the delinquent, we have made a thorough analysis of each and every word contained therein. There is no whisper in the said charge, as to the legitimacy or illegitimacy of the delinquent. The only charge is, whether the delinquent has committed misconduct by suppressing and misrepresenting that he is the son of the deceased Government Servant to get the benefit of employment assistance on compassionate grounds. The Enquiry Officer, the Original Authority and the Appellate Authority have not properly looked into the charge and held the charge as proved, without taking into proper consideration of the point of legitimacy or illegitimacy. So, it is not proper for the said authorities to go into the question of legitimacy or illegitimacy of the delinquent. Therefore, in the absence of any question as to legitimacy or illegitimacy, the necessary corollary would be, that the charge framed against the petitioner has not been proved in a manner known to law and the delinquent is not guilty of the charge and it only shows that the authorities have not applied their mind in coming to such a conclusion.
30. The object of the compassionate appointment to a son or daughter or near relative, who would take care of the family of the Government Servant, who dies in harness, leaving his family in indigent circumstances is to mitigate the sufferings of the bereaved family. In this connection, it has to be noted whether the person appointed on compassionate grounds is continuing to support his family or not. As seen from Exs.P-18 and P-19, the delinquent was shown as one of the family members of Shaik Hyder. If that is taken into account, the delinquent would definitely come under the dependants. Therefore, the object under which the compassionate appointment has been provided to the bereaved family of Shaik Hyder has been rightly met. As such, the legitimacy or illegitimacy cannot be a stumbling block for the petitioner to get employment. Hence, the impugned order, in our considered view, suffers from illegality and perversity and the same is liable to be set aside.
31. The Apex Court, in Chand Patel''s case (cited supra), has held that though the marriage is said to be irregular, the children born out of such marriage would not be disentitled to claim the benefits of their parent. Further, the Supreme Court, in Haryana State Electricity Board v. Naresh Tanwar''s case (referred above), has also held that the very object of appointment of dependant of the deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family.
32. For all the foregoing reasons, this Writ Petition is allowed, setting aside the impugned orders of the respondents and directing the respondents to reinstate the petitioner in service as Junior Assistant with effect from 10.06.2002 with all attendant benefits and continuity of service, but with 50% back wages. No costs.
