A division bench comprising Justices S J Mukhopadhaya and V Dhanapalan, quoting Supreme Court rulings, said ''though matrimony is said to be irregular, the children born out of such marriage would be entitled to claim the benefits of their parents.'' The object of appointment of a dependent of the deceased employee, who died in harness, is to relieve the immediate hardship and distress caused to the family by the sudden demise of its earning member, the bench noted.
The matter related to the appointment of H Anwar Basha as junior assistant in the Tamil Nadu Judicial Ministerial Service.
He was appointed to the post in 1992 as his father Shaik Hyder died while working in the Principal District Munsif Court in Villupuram in August 1991.
However, in 1999, Basha's paternal uncle lodged a complaint, stating that he was not the son of Shaik Hyder and born to one Gaffar. Following the High Court's direction, disciplinary proceedings were initiated against Basha, and it culminated in his removal from service in June 2002.
The fact that Basha was born in 1966 whereas his parents got married only in 1975 worked against him. The inquiry committee, despite his mother Azeema Bi's submission that she and Shaik Hyder were cohabiting for many years before formally getting married in 1975, ruled that illegitimate sons were not entitled to claim compassionate ground appointments.
Justice Dhanapalan, writing judgement for the bench, reversed the conclusion by referring to an October 1983 Government Order.
''The eligibility criteria prescribed to get employment assistance to families of the deceased government servants would make clear that the dependents include the son, and it does not denote whether the son should be legitimate or illegitimate.'' In 1977 itself, Azeema Bi had been cited as a nominee of Shaik Hyder and except the paternal uncle of Basha no one had raised an issue. Also, having kept quiet all along, allowing Basha to work in the judicial department for so many years, the issue has been raised all of a sudden.
These factors, coupled with the fact that Azeema Bi had spoken about her cohabitation with Shaik Hyder, would prove Basha's claim that he was the son of the deceased government servant, concluded Mr Justice Dhanapalan.
The Judge also faulted the inquiry committee for having traversed beyond its brief and discussed whether Basha was legitimate or illegitimate son of Shaik Hyder.
Justice Dhanapalan then directed the authorities to reinstate Basha in service with all service benefits, including continuity of service, with effect from June 2002.