whether the condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is legally sustainable.? - No
we hold that the issue arising for consideration, in this case, is covered by the judgment of this Court in Union of India and Ors. v.V.K. Tripathi and consequently the judgment and order dated 18.01.2018 of the High Court of Judicature at Patna passed in CWJC No. 18153 of 2017 is set aside. As we have held that appellant No.1, Shri Manish Kumar, cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife, there shall be a direction to consider his case as per the extant policy. The Authorities shall be entitled to scrutinize whether the application for compassionate appointment fulfils all other requirements in accordance with the law. The process of consideration of the application shall be completed within a period of three months from today
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF /2022
ARISING OUT OF SLP(C) NO. 18571/2018
MUKESH KUMAR & ANR …. APPELLANT(S)
VERSUS
THE UNION OF INDIA & ORS. …RESPONDENT(S)
J U D G M E N T
PAMIDIGHANTAM SRI NARASIMHA, J.
Leave granted.
2. The short issue arising for consideration, in this case, is whether the
condition imposed by the Railway Board circular that compassionate
appointment cannot be granted to children born from the second wife of a
deceased employee is legally sustainable. Having considered the matter, we
have agreed with the counsel for the appellant that the issue is covered by the
judgment of this Court in Union of India v. V.R. Tripathi.
1
We have allowed
the appeal on this ground. We have also held that such a denial is
discriminatory, being only on the ground of descent under Article 16(2) of the
1 Union of India v. V.R. Tripathi, (2019) 14 SCC 646.
Page 2 of 9
Constitution of India. We shall first refer to the facts of the case before applying
the law for disposal of this appeal.
Facts:
3. The facts, in brief, are that Jagdish Harijan was an employee of the
Indian Railways appointed on 16.11.1977. In his lifetime, Shri Jagdish Harijan
had two wives, appellant No.2, Gayatri Devi, was his first wife and Konika
Devi, since deceased, was his second wife. The appellant No.1 Mukesh Kumar
is his son through his second wife. Shri Jagdish Harijan died in service on
24.02.2014. Shortly after that, the appellant No.2 made a representation dated
17.05.2014 seeking the appointment of her step-son/appellant No.1 under the
scheme for appointments on compassionate grounds. The Respondent-Union
rejected the representation on 24.06.2014 because appellant No.1, being the
second wife's son, is not entitled to such an appointment. The departmental
appeal came to be dismissed on 30.12.2015. The appellants filed an original
application before the Central Administrative Tribunal, Patna, which was
dismissed on 19.07.2017. A writ petition was filed before the High Court of
Patna questioning the correctness of the decision of the Tribunal by relying on
two decisions of the Madras High Court, which followed the Calcutta High
Court decision in the case of Namita Goldar and Anr. v. Union of India and
Ors. (2010) 1 Cal. LJ 464 under which the very same circular of the railways
dated 02.01.1992 was quashed. The Division Bench of the High Court,
however, by the impugned order, dismissed the writ petition.
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Arguments of Counsel:
4. The learned Counsel for the Appellants, Shri Manish Kumar Saran,
submitted that the issue is covered by the decision of this Court in Union of
India v. V.R. Tripathi (supra) wherein, in the context of this very circular and
policy of the railways, it held that a child of a second wife of an employee could
not be denied compassionate appointment on that ground alone. He also relied
on the judgment of the High Court of Calcutta in Namita Goldar (supra), which
has been approved by this Court in V.R. Tripathi.
5. The learned Counsel for the Respondents, Smt. Meera Patel,
representing the Union submitted based on the statement in the counter
affidavit. The counter refers to Circular No. E(NG) II/2018/RC-1/5 dated
21.03.2018 issued in supersession of Circular dated 02.01.1992, which
provides that if a legally wedded surviving widow does not want herself to be
considered, she cannot nominate the illegitimate sons/daughters of her husband
for compassionate appointment. She further submitted that the judgment of this
Court relied on by the appellants does not direct appointment but merely
provides for consideration of the application. Therefore, there cannot be a
direction for appointment as prayed by the appellant.
Analysis:
6. It is true that the matter is no more res integra. This Court in V.R.
Tripathi considered the very same policy and circular that arise for the
Page 4 of 9
consideration in the present case. The judgment covers the issue, as is evident
from the following passages:
“14. The real issue in the present case, however, is
whether the condition which has been imposed by the
circular of the Railway Board under which compassionate
appointment cannot be granted to the children born from
a second marriage of a deceased employee (except where
the marriage was permitted by the administration taking
into account personal law, etc.) accords with basic notions
of fairness and equal treatment, so as to be consistent with
Article 14 of the Constitution….
16. The issue essentially is whether it is open to an
employer, who is amenable to Part III of the Constitution
to deny the benefit of compassionate appointment which is
available to other legitimate children. Undoubtedly, while
designing a policy of compassionate appointment, the
State can prescribe the terms on which it can be granted.
However, it is not open to the State, while making the
scheme or rules, to lay down a condition which is
inconsistent with Article 14 of the Constitution. The
purpose of compassionate appointment is to prevent
destitution and penury in the family of a deceased
employee. The effect of the circular is that irrespective of
the destitution which a child born from a second marriage
of a deceased employee may face, compassionate
appointment is to be refused unless the second marriage
was contracted with the permission of the administration.
Once Section 16 of the Hindu Marriage Act, 1955 regards
a child born from a marriage entered into while the earlier
marriage is subsisting to be legitimate, it would not be
open to the State, consistent with Article 14 to exclude such
a child from seeking the benefit of compassionate
appointment. Such a condition of exclusion is arbitrary
and ultra vires.
17. Even if the narrow classification test is adopted, the
circular of the Railway Board creates two categories
between one class of legitimate children. Though the law
has regarded a child born from a second marriage as
legitimate, a child born from the first marriage of a
deceased employee is alone made entitled to the benefit of
compassionate appointment. The salutary purpose
underlying the grant of compassionate appointment, which
Page 5 of 9
is to prevent destitution and penury in the family of a
deceased employee requires that any stipulation or
condition which is imposed must have or bear a
reasonable nexus to the object which is sought to be
achieved. The learned Additional Solicitor General has
urged that it is open to the State, as part of its policy of
discouraging bigamy to restrict the benefit of
compassionate appointment, only to the spouse and
children of the first marriage and to deny it to the spouse
of a subsequent marriage and the children. We are here
concerned with the exclusion of children born from a
second marriage. By excluding a class of beneficiaries
who have been deemed legitimate by the operation of law,
the condition imposed is disproportionate to the object
sought to be achieved. Having regard to the purpose and
object of a scheme of compassionate appointment, once the
law has treated such children as legitimate, it would be
impermissible to exclude them from being considered for
compassionate appointment. Children do not choose their
parents. To deny compassionate appointment though the
law treats a child of a void marriage as legitimate is deeply
offensive to their dignity and is offensive to the
constitutional guarantee against discrimination.
18. … The exclusion of one class of legitimate children
from seeking compassionate appointment merely on the
ground that the mother of the applicant was a plural wife
of the deceased employee would fail to meet the test of a
reasonable nexus with the object sought to be achieved. It
would be offensive to and defeat the whole object of
ensuring the dignity of the family of a deceased employee
who has died in harness. It brings about unconstitutional
discrimination between one class of legitimate
beneficiaries — legitimate children.”
7. This Court held that the scheme and the rules of compassionate
appointment cannot violate the mandate of Article 14 of the Constitution. Once
Section 16 of the Hindu Marriage Act regards a child born from a marriage
entered into while the earlier marriage is subsisting to be legitimate, it would
violate Article 14 if the policy or rule excludes such a child from seeking the
Page 6 of 9
benefit of compassionate appointment. The circular creates two categories
between one class, and it has no nexus to the objects sought to be achieved.
Once the law has deemed them legitimate, it would be impermissible to exclude
them from being considered under the policy. Exclusion of one class of
legitimate children would fail to meet the test of nexus with the object, and it
would defeat the purpose of ensuring the dignity of the family of the deceased
employee. This judgment has now been followed by a number of High Courts
as well.2
8. Apart from the discrimination ensuing from treating equals unequally,
which is writ large as demonstrated in the judgment of this Court referred to
above, there is also discrimination on the ground of descent, which is expressly
prohibited under Article 16(2). In V. Sivamurthy v. State of A.P.
3
, this Court
2 See, K. Santhosha v. Karnataka Power Transmission Corp Ltd. 2022(1) Kant LJ 154
(Decided on 24.06.2021 by The High Court of Karnataka); Yuvraj DajeeKhadake v. Union
of India: 2019 SCC OnLine Bom 299 (Decided on 21.02.2019 by The High Court of
Bombay); Union of India v Rohit Chand 2020 SCC OnLine Del 157. (Decided on
24.01.2020 by The High Court of Delhi)
3 V. Sivamurthy v. State of A.P. and Ors., (2008) 13 SCC 730:
“18. The principles relating to compassionate appointments may be summarised thus;
(a) Compassionate appointment based only on descent is impermissible. Appointments
in public service should be made strictly on the basis of open invitation of applications
and comparative merit, having regard to Articles 14 and 16 of the Constitution of India.
Though no other mode of appointment is permissible, appointments on compassionate
grounds are a well-recognised exception to the said general rule, carved out in the
interest of justice to meet certain contingencies.
(b) Two well-recognised contingencies which are carved out as exceptions to the
general rule are:
(i) appointment on compassionate grounds to meet the sudden crisis occurring in
a family on account of the death of the breadwinner while in service.
(ii) appointment on compassionate ground to meet the crisis in a family on account
of medical invalidation of the breadwinner.
Another contingency, though less recognised, is where landholders lose their
entire land for a public project, the scheme provides for compassionate
Page 7 of 9
observed that appointments made only on the basis of descent is impermissible.
However, compassionate appointments are a well-recognized exception to the
general rule if they are carved out in the interest of justice to meet public policy
considerations.
4
It lends justification only that far and no further.
9. While compassionate appointment is an exception to the constitutional
guarantee under Article 16, a policy for compassionate appointment must be
consistent with the mandate of Articles 14 and 16. That is to say, a policy for
compassionate appointment, which has the force of law, must not discriminate
on any of the grounds mentioned in Article 16(2), including that of descent. In
this regard, ‘descent’ must be understood to encompass the familial origins of
a person.5 Familial origins include the validity of the marriage of the parents
of a claimant of compassionate appointment and the claimant’s legitimacy as
their child. The policy cannot discriminate against a person only on the ground
appointment to members of the families of project-affected persons. (Particularly
where the law under which the acquisition is made does not provide for market
value and solatium, as compensation).
(c) Compassionate appointment can neither be claimed, nor be granted, unless the
rules governing the service permit such appointments. Such appointments shall be
strictly in accordance with the scheme governing such appointments and against
existing vacancies.
(d) Compassionate appointments are permissible only in the case of a dependant
member of the family of the employee concerned, that is, spouse, son or daughter and
not other relatives. Such appointments should be only to posts in the lower category,
that is, Classes III and IV posts and the crises cannot be permitted to be converted into
a boon by seeking employment in Class I or II posts.”
4 Director General of Posts v. K. Chandrashekar Rao, (2013) 3 SCC 310 (at para 18);
Further, constitutionality of compassionate appointments was upheld in State of Haryana v.
Ankur Gupta (2003) 7 SCC 704 (at para 6); Yogender Pal Singh v. Union of India (1987) 1
SCC 631 (at para 17).
5 See, Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors. (1961) 2 SCR 931.
Page 8 of 9
of descent by classifying children of the deceased employee as legitimate and
illegitimate and recognizing only the right of legitimate descendant. Apart from
the fact that strict scrutiny would reveal that the classification is suspect, as
demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the
constitutional prohibition of discrimination on the ground of descent. Such a
policy is violative of Article 16(2).
10. We note with approval the decision of the Delhi High Court in Union
of India v. Pankaj Kumar Sharma,
6
to which one of us (Justice S. Ravindra
Bhat) was a party, which held that descent cannot be a ground for denying
employment under the scheme of compassionate appointments. Speaking
through Sanghi J., the Court held:
“22. The Court is of opinion that - apart from being
textually sound - understanding 'descent' in terms of
prohibiting discrimination against a person on the basis of
legitimacy, or on the basis of his mother's status as a first
or second wife, fits within the principles underlying Article
16(2). Not only is one's descent, in this sense, entirely
beyond one's control (and therefore, ought not to become
a ground of State-sanctioned disadvantage), but it is also
an established fact that children of 'second' wives, whether
counted as illegitimate or legitimate, have often suffered
severe social disadvantage. Another significant
observation here is that at the entry level - "legitimacy" is
and cannot be a ground for denial of public employment.
For these reasons, this Court is of the opinion that the
Petitioner's regulation violates Article 16(2).”
6 Union of India v. Pankaj Kumar Sharma MANU/DE/3959/2014, WP(C) No.9008/2014
dt 19.04.2014
Page 9 of 9
11. Given the above, we hold that the issue arising for consideration, in this
case, is covered by the judgment of this Court in Union of India and Ors. v.
V.K. Tripathi and consequently the judgment and order dated 18.01.2018 of
the High Court of Judicature at Patna passed in CWJC No. 18153 of 2017 is set
aside. As we have held that appellant No.1, Shri Manish Kumar, cannot be
denied consideration under the scheme of compassionate appointments only
because he is the son of the second wife, there shall be a direction to consider
his case as per the extant policy. The Authorities shall be entitled to scrutinize
whether the application for compassionate appointment fulfils all other
requirements in accordance with the law. The process of consideration of the
application shall be completed within a period of three months from today.
12. The appeal is accordingly allowed. Parties shall bear their own costs.
………………………………J.
[UDAY UMESH LALIT]
……………………………J.
[S. RAVINDRA BHAT]
……………………………….J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
FEBRUARY 24, 2022
