PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this writ petition for the following reliefs:- "(a) The impugned order dated 03.6.2013 (Annex.6), order dated 07.01.2015 (Annex.7) passed by the respondent no.3 and order dated 19.1.2015 (Annex.8) passed by the respondent no.4 may kindly be quashed and set aside. (b) The respondents may kindly be directed to provide compassionate to the petitioner forthwith. (c) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. (d) Writ petition filed by the petitioner may kindly be allowed with costs."
(2.) The factual matrix necessary for just adjudication of the case is that the petitioner's father Shri Hari Ram Charpota was posted as Class IV employee in Sub-Employment Office, Rawatbhatta, District Chittorgarh, who expired while in service on 02.11.2012. The petitioner herein is son from second wife of Shri Hari Ram Charpota, thus, father of petitioner was admittedly having two wives i.e. Smt. Latki Devi and Smt. Kanku Devi. There were total seven children of late Shri Hari Ram Charpota from these two wives. All the family members, which includes Smt. Latki Devi and Smt. Kanku Devi, agreed for compassionate appointment being given to the petitioner and, thus, executed consent letters and affidavits in petitioner's favour. An application for compassionate appointment along-with consent letter of mothers and all the children was submitted on 03.1.2013. Thereupon, respondent no.3 informed the petitioner that since he was son of legally wedded wife Smt. Latki Devi, therefore, compassionate appointed cannot be provided to him.
(3.) Counsel for the petitioner argued that children can never be illegitimate even if he/she is born out of second marriage, the validity of which is being questioned. The petitioner, therefore, is the legitimate son of late Shri Hari Ram Charpota, which is disputed by the respondents. The respondents only claim is that the petitioner's father entered into two marriages and the fact of second marriage with Smt. Kanku Devi was disclosed by father of petitioner. However, the respondents are in a position to refute paternity of the petitioner by any count. Counsel for the petitioner has relied upon the judgment of Rameshwari Devi v. State of Bihar and Ors., reported in AIR 2000 SC 735 , the relevant para whereof reads as follows : "14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement Gratuity payments which is governed by the relevant rules. It is disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment. 15. Rameshwari Devi has raised two principal objections : (1) marriage between Yogmaya Devi and Narain Lal has been proved, meaning thereby that there is no witness to the actual performance of the marriage in accordance with the religious ceremonies required for a valid Hindu marriage and (2) without a civil court having pronounced upon the marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights, it cannot be held that the children of Yogmaya Devi with her marriage with Narain Lal would be legitimate under section 16 of the Hindu Marriage Act. First objection we have discussed above and there is nothing said by Rameshwari Devi to rebut the presumption in favour of marriage duly performed between Yogmaya Devi and Narain Lal. On the second objection, it is correct that no civil court has pronounced if there was a marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights. That would, however, debar the State Government from making an inquiry about the existence of such a marriage and act on that in order to grant pensionary and other benefits to the children of Yogmaya Devi. On this aspect we have already adverted to above. After the death of Narain Lal, inquiry was made by the State Government as to which of the wives of Narain Lal was his legal wife. This was on the basis of claims filed by Rameshwari Devi. Inquiry was quite detailed one and there are in fact two witnesses examined during the course of inquiry being (1) Sant Prasad Sharma, teacher, DAV High School, Danapur and (2) Sri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya Devi and Narain Lal having witnessed the same. That both Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also been testified during the course of inquiry by Chandra Shekhar Singh, Rtd. District Judge, Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S.N. Sinha, w/o Sri S.N. Sinha, ADM and others. Other documentary evidence were also collected which showed Yogmaya Devi and Narain Lal were living as husband and wife. Further, the sons of the marriage between Yogmaya Devi and Narain Lal were shown in records as sons of Narain Lal." Counsel for the petitioner has also relied upon section 16 of the Hindu Marriage Act, 1955, which reads as follows : "S.16. Legitimacy of children of void and voidable marriages : Where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12, any children begotten or conceived from the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity. Provided that nothing contained in this section shall be constructed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his being the legitimate child of his parents." Counsel for the petitioner also stated that the respondents are under statutory obligation under the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servants Rules, 1996 (hereinafter referred to as 'the Rules of 1996') to provide compassionate appointment to the petitioner. The respondents have neither denied factum of deceased being government servant of their Department nor the fact that of petitioner is dependant son, thus, the petitioner is entitled for such consideration.;