Compassionate Appointment and Rights of Legitimate Children

Compassionate Appointment and Rights of Legitimate Children

Compassionate Appointment and Rights of Legitimate Children

Compassionate Appointment and Rights of Legitimate Children

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MUKESH KUMAR & ANR …. APPELLANT(S) VERSUS THE UNION OF INDIA & ORS. …RESPONDENT(S)

CIVIL APPEAL NO. OF /2022 ARISING OUT OF SLP(C) NO. 18571/2018

Bench- J. UDAY UMESH LALIT, J. S. RAVINDRA BHAT, J. PAMIDIGHANTAM SRI NARASIMHA

Issue- 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.

Facts of the case:

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. The Patna High Court dismissed the writ petition.

Analysis:

It is true that the matter is no more res integra. The Supreme Court in Union of India v. V.R. Tripathi, (2019) 14 SCC 646 considered the very same policy and circular that arise for the 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 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.”

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 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.

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. and Ors., (2008) 13 SCC 730, the Supreme Court:

“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 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. It lends justification only that far and no further.

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.”

Decision– This case, is covered by the judgment of the Supreme 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.