UNION OF INDIA AND ANR. versus V. R. TRIPATHI on 11 December 2018

[2018] 13 S.C.R. 281

UNION OF INDIA AND ANR.

v.

V. R. TRIPATHI

(Civil Appeal No. 12015 of 2018)

DECEMBER 11, 2018

[DR DHANANJAYA Y CHANDRACHUD AND

M. R. SHAH, JJ.]

Service law : Appointment – Compassionate appointment –Son born to railway employee from second marriage contractedduring the subsistence of his first marriage – Benefit ofcompassionate appointment to the son on the death of his father –Claim for – Rejected by the Railway Authorities, however, allowedby the tribunal and the High Court – Held: There is no right assuch to compassionate appointment but only an entitlement, wherea scheme or rules envisaging it exist, to be considered in accordancewith the provisions – Having regard to the purpose and object of ascheme of compassionate appointment, once the law has treatedchildren born out of second marriage during the subsistence of thefirst marriage as legitimate, it would be impermissible to excludethem from being considered for compassionate appointment –Children do not choose their parents – To deny compassionateappointment is deeply offensive to their dignity and to theconstitutional guarantee against discrimination – Thus, theexclusion of a child born from a second marriage from seekingcompassionate appointment under the terms of the circular of theRailway Board is ultra vires – Hindu Marriage Act, 1955 – s. 16.

An employee working with Indian Railways, died in harness.He had contracted a second marriage during the subsistence ofhis first marriage and a son was born to him from the secondmarriage. The respondent-son applied for compassionateappointment on the death of his father. The Railway authoritiesrejected the application in view of the circular of the Railway Boardwhereby compassionate appointment could not be granted to thechildren born from a second marriage of a deceased employee(except where the marriage was permitted by the administrationtaking into account personal law, etc). However, the tribunal andthe High Court held in favour of the respondent. Hence thepresent appeal.

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282SUPREME COURT REPORTS

ADisposing of the matters, the Court

HELD: 1.1 The policy of compassionate appointment ispremised on the death of an employee while in harness. The deathof an employee is liable to render the family in a position offinancial hardship and need. Compassionate appointment isBintended to alleviate the hardship that the family of a deceasedemployee may face upon premature death while in service.Compassionate appointment, in other words, is not foundedmerely on parentage or descent, for public employment must beconsistent with equality of opportunity which Article 16 of theConstitution guarantees. Hence, before a claim for compassionateCappointment is asserted by the family of a deceased employee oris granted by the State, the employer must have rules or a schemewhich envisage such appointment. It is in that sense that it is atrite principle of law that there is no right to compassionateappointment. Even where there is a scheme of compassionateDappointment, an application for engagement can only beconsidered in accordance with and subject to fulfilling theconditions of the rules or the scheme. There can be no doubtabout the principle that there is no right as such to compassionateappointment but only an entitlement, where a scheme or rulesenvisaging it exist, to be considered in accordance with theEprovisions. [Para 11][289-G-H; 290-A-D]

1.2 Undoubtedly, while designing a policy of compassionateappointment, the State can prescribe the terms on which it canbe granted. However, it is not open to the State, while makingthe scheme or rules, to lay down a condition which is inconsistentFwith Article 14 of the Constitution. The purpose of compassionateappointment is to prevent destitution and penury in the family ofa deceased employee. The effect of the circular is that irrespectiveof the destitution which a child born from a second marriage of adeceased employee may face, compassionate appointment is tobe refused unless the second marriage was contracted with theGpermission of the administration. Once Section 16 of the HinduMarriage Act, 1955 regards a child born from a marriage enteredinto while the earlier marriage is subsisting to be legitimate, itwould not be open to the State, consistent with Article 14 to exclude such a child from seeking the benefit of compassionateappointment. Such a condition of exclusion is arbitrary and ultravires. [Para 14][291-H; 292-A-C]

1.3 Even if the narrow classification test is adopted, thecircular of the Railway Board creates two categories betweenone class of legitimate children. Though the law has regarded achild born from a second marriage as legitimate, a child bornfrom the first marriage of a deceased employee is alone madeentitled to the benefit of compassionate appointment. The salutarypurpose underlying the grant of compassionate appointment,which is to prevent destitution and penury in the family of adeceased employee requires that any stipulation or conditionwhich is imposed must have or bear a reasonable nexus to theobject which is sought to be achieved. It was submitted that it isopen to the State, as part of its policy of discouraging bigamy torestrict the benefit of compassionate appointment, only to thespouse and children of the first marriage and to deny it to thespouse of a subsequent marriage and the children. The concernis with the exclusion of children born from a second marriage. Byexcluding a class of beneficiaries who have been deemedlegitimate by the operation of law, the condition imposed isdisproportionate to the object sought to be achieved. Havingregard to the purpose and object of a scheme of compassionateappointment, once the law has treated such children as legitimate,it would be impermissible to exclude them from being consideredfor compassionate appointment. Children do not choose theirparents. To deny compassionate appointment though the lawtreats a child of a void marriage as legitimate is deeply offensiveto their dignity and is offensive to the constitutional guaranteeagainst discrimination. [Para 15][292-D-G]

1.3 The exclusion of one class of legitimate children fromseeking compassionate appointment merely on the ground thatthe mother of the applicant was a plural wife of the deceasedemployee would fail to meet the test of a reasonable nexus withthe object sought to be achieved. It would be offensive to anddefeat the whole object of ensuring the dignity of the family of adeceased employee who has died in harness. It brings aboutunconstitutional discrimination between one class of legitimate A

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Abeneficiaries-legitimate children. Thus, exclusion of a child bornfrom a second marriage from seeking compassionate appointmentunder the terms of the circular of the Railway Board is ultra vires.[Para 16, 18][293-C-D; 294-G-H; 295-A]

1.4 It was submitted by the respondent that once the circularBdated 02.01.1992 was struck down by the Division Bench of theCalcutta High Court in *Namita Goldar case and which wasaccepted and has been implemented, it was not thereafter opento the railway authorities to rely upon the same circular whichhas all India force and effect. There is merit in the submission.Hence, it is improper on the part of the Railway Board to issue aCfresh circular on 3 April 2013, reiterating the terms of the earliercircular even after the decision in *Namita Goldar case whichattained finality. [Para 20][295-C-D]

2. As regards, C.A.No. 12015 of 2018, since the secondmarriage was in any event permissible under Muslim PersonalDLaw, there is no merit in the appeal. [Para 23][295-F-G]

Namita Goldar v. Union of India (2010) 1 Cal.LJ 464 -approved.

Rameshwari Devi v. State of Bihar (2000) 2 SCC 431 :[2000] 1 SCR 390 ; Director of Education (Secondary)Ev. Pushpendra Kumar (1998) 5 SCC 192 : [1998] 3SCR 432 ; State Bank of India v. Raj Kumar (2010) 11SCC 661 ; V Sivamurthy v. State of Andhra Pradesh(2008) 13 SCC 730 : [2008] 11 SCR 1201 ; EasternCoalfields Ltd. v. Dilip Singh (2013) 3 Cal.LT 379 ;FM Muthuraj v Deputy General of Police, Tamil Nadu(2016) 5 CTC 50 ; Union of India v. M Karumbayee2017 Lab. IC (NOC 237) 69 – referred to.

Case Law Reference[2000] 1 SCR 390referred toPara 5 (iii)[1998] 3 SCR 432referred toPara 10(2010) 11 SCC 661referred toPara 10[2008] 11 SCR 1201referred toPara 10(2013) 3 Cal.LT 379referred toPara 17

G[1998] 3 SCR 432

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(2016) 5 CTC 50referred toPara 18A2017 Lab. IC (NOC 237) 69 referred to.Para 18(2010) 1 Cal.LJ 464approvedPara 20

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12015of 2018.

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From the Judgment and Order dated 01.04.2016 of the High Courtof Judicature at Bombay in Writ Petition No. 910 of 2015.

With

Civil Appeal No. 12016 of 2018.

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Aman Lekhi, ASG, Harish Pandey, Mrs. Anil Katiyar, MukeshKumar Maroria, Advs. for the Appellants.

Arjun Singh Bhati, Apurv Parashari, Advs. for the Respondent.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

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CIVIL APPEAL No.12015 OF 2018

1. Leave granted.

2. This appeal arises from a judgment of a Division Bench of theBombay High Court dated 1 April 2016.

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3. The father of the respondent, Ramlakhan Tripathi was employedas a Technician, Grade-I in Central Railways at Mumbai. He died inharness on 28 November 2009. The deceased employee had contracteda second marriage during the subsistence of his first marriage. Therespondent is the son born from the second marriage of the employee.The second marriage, as it appears, was contracted in 1987. Therespondent applied for compassionate appointment on the death of hisfather. The application was rejected on 6 March 2012 by the RailwayAuthorities. Aggrieved by the denial of compassionate appointment, therespondent moved an Original Application before the CentralAdministrative Tribunal. The Tribunal having held in favour of therespondent and upon the dismissal of a petition seeking review, the Unionof India and the Railway Authorities instituted writ proceedings beforethe Bombay High Court.

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4. In support of the writ petition, the appellants relied upon a circularof the Railway Board dated 2 January 1992. The said circular is extractedbelow:

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“Government of IndiaMinistry of Railway(Railway Board)

R.B.E. No.1 of 1992Supplementary CircularNo.5 to Master CIRCULAR

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The General Manager(P)C. Rly. and others Sub: Appointment on Compassionate grounds cases of secondwidow and her wards.

It is clarified that in the case of railway employees dyingin harness etc. leaving more than one widow along with childrenborn to the 2[nd] wife, while settlement dues may be shared by boththe widows due to Court orders or otherwise on merits of eachcase, appointments on compassionate grounds to the second widowand her children are not to be considered unless the administrationhas permitted the second marriage, in special circumstances, takinginto account the persons law etc.

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2. The fact that the second marriage is not permissible is invariablyclarified in the terms and conditions advised to the offer of initialappointment.

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3. This may be kept in view and the cases for compassionateappointment to the second widow or her wards need not beforwarded to Railway Board.

4. Kindly acknowledge receipt.

Sd/-

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(P.L.N. Sarma)

Deputy Director, Estt. (N)Railway Board”

5. The High Court held that:

(i) Section 16 of the Hindu Marriage Act, 1955 recognizes thelegitimacy of a child born from a marriage which is null andvoid under the provisions of Section 11; G

(ii) The circular of the Railway Board dated 2 January 1992 hasbeen set aside by a Division Bench of the Calcutta High Courtin Namita Goldar v Union of India[1]; and H1(2010) 1 Cal.LJ 464

(iii) In the decision of this Court in Rameshwari Devi v State ofBihar[2] the entitlement of the family of a deceased employeeto pensionary benefits has been upheld notwithstanding thefact that the deceased had, during his lifetime, contracted asecond marriage.

6. Principally on the above foundation, the High Court found noreason to differ with the view of the Central Administrative Tribunal andobserved that the direction to the railway authorities was only to considerthe case of the respondent for compassionate appointment on its merits.7. Assailing the judgment of the High Court, Mr. Aman Lekhi,learned Additional Solicitor General submitted that:

(i) Compassionate appointment is not an alternate source ofemployment or recruitment;

(ii) Compassionate appointment is not a matter of a heritable rightand depends on the extant rules or schemes under which suchbenefits or facilities are envisaged;

(iii) Section 16(3) of the Hindu Marriage Act, 1955 envisages thata child born from a marriage which is void under Section 11has a claim only in respect of the property of the parents andno further;

(iv) The decision of this Court in Rameshwari Devi (supra) isdistinguishable since pension, it is well settled, is a matter ofright as a result of the previous service of an employee andtherefore represents an entitlement in the nature of property;and

(v) On the other hand, the heirs of a deceased employee have noright to compassionate appointment. Hence, it is open to theUnion Government or its agencies and departments, whiledesigning a policy of compassionate appointment to stipulatethat such a facility will not be available either to the spouse ofa second marriage or, for that matter, to the children who areborn from that marriage. The State can do so as a legitimateinstrument of its policy to discourage bigamy.

8. On the other hand, Mr. Arjun Singh Bhati and Mr. ApurvParashar, the learned counsel appearing on behalf of the respondent,submitted that:

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A(i)Section 16 of the Hindu Marriage Act clearly enunciates thatchildren who are born from a marriage which is null and voidare legitimate;

(ii) While the Union Government may well assert that a secondspouse is not entitled to compassionate appointment, such aBfacility cannot be denied to the children from a secondmarriage, once their legitimacy operates as a matter of law;and

(iii) The decision in Namita Goldar (supra) struck down thecircular of the Railway Board dated 2 January 1992. Thedecision was not challenged and has in fact been implemented.CHence, the subsequent circular which was issued by theRailway Board on 3 April 2013, reiterating the earlier circular,is contrary to the decision of the Calcutta High Court inNamita Goldar (supra), which was rendered on 1 February2010.

D9. The rival submissions fall for our consideration.

10. Certain basic principles in regard to the grant of compassionateappointment are settled by the decisions of this Court. In Director ofEducation (Secondary) v Pushpendra Kumar,[3] this Court whilediscussing the object of compassionate appointment observed thus:E“8. The object underlying a provision for grant of compassionateemployment is to enable the family of the deceased employee totide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any meansof livelihood. Out of pure humanitarian consideration and havingFregard to the fact that unless some source of livelihood is provided,the family would not be able to make both ends meet, a provisionis made for giving gainful appointment to one of the dependantsof the deceased who may be eligible for such appointment…”

In State Bank of India v Raj Kumar,[4] this Court while discussingGthe claim over compassionate appointment held as follows:

“8. It is now well settled that appointment on compassionategrounds is not a source of recruitment. On the other hand it is anexception to the general rule that recruitment to public services 3(1998) 5 SCC 192H4(2010) 11 SCC 661

should be on the basis of merit, by an open invitation providingequal opportunity to all eligible persons to participate in the selectionprocess. The dependants of employees, who die in harness, donot have any special claim or right to employment, except by wayof the concession that may be extended by the employer underthe rules or by a separate scheme, to enable the family of thedeceased to get over the sudden financial crisis. The claim forcompassionate appointment is therefore traceable only to thescheme framed by the employer for such employment and thereis no right whatsoever outside such scheme.An appointment underthe scheme can be made only if the scheme is in force and notafter it is abolished/withdrawn. It follows therefore that when ascheme is abolished, any pending application seeking appointmentunder the scheme will also cease to exist, unless saved. The merefact that an application was made when the scheme was in force,will not by itself create a right in favour of the applicant.”(Emphasis supplied)

In V Sivamurthy v State of Andhra Pradesh,[5] this Courtsummarised the principles relating to compassionate appointment asfollows:

“18. (a) Compassionate appointment based only on descent isimpermissible. Appointments in public service should be madestrictly on the basis of open invitation of applications andcomparative merit, having regard to Articles 14 and 16 of theConstitution of India.Though no other mode of appointment ispermissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in theinterest of justice to meet certain contingencies…

(c) Compassionate appointment can neither be claimed, nor begranted, unless the rules governing the service permit suchappointments. Such appointments shall be strictly in accordancewith the scheme governing such appointments and against existingvacancies…”

(Emphasis supplied)

11. The policy of compassionate appointment is premised on thedeath of an employee while in harness. The death of an employee isliable to render the family in a position of financial hardship and need.

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ACompassionate appointment is intended to alleviate the hardship that thefamily of a deceased employee may face upon premature death while inservice. Compassionate appointment, in other words, is not founded merelyon parentage or descent, for public employment must be consistent withequality of opportunity which Article 16 of the Constitution guarantees.Hence, before a claim for compassionate appointment is asserted by theBfamily of a deceased employee or is granted by the State, the employermust have rules or a scheme which envisage such appointment. It is inthat sense that it is a trite principle of law that there is no right tocompassionate appointment. Even where there is a scheme ofcompassionate appointment, an application for engagement can only beCconsidered in accordance with and subject to fulfilling the conditions ofthe rules or the scheme. The submission which has been urged on behalfof the Union of India by the learned Additional Solicitor General ispremised on the basis that there is no right to compassionate appointment.There can be no doubt about the principle that there is no right as such tocompassionate appointment but only an entitlement, where a scheme orDrules envisaging it exist, to be considered in accordance with theprovisions.

12. The real issue in the present case, however, is whether thecondition which has been imposed by the circular of the Railway Boardunder which compassionate appointment cannot be granted to the childrenEborn from a second marriage of a deceased employee (except wherethe marriage was permitted by the administration taking into accountpersonal law, etc) accords with basic notions of fairness and equaltreatment, so as to be consistent with Article 14 of the Constitution.While answering this issue, it would be necessary to advert to theFprovisions of Section 16 of the Hindu Marriage Act, 1955 which providethus:

“16. Legitimacy of children of void and voidable marriages.-(1)Notwithstanding that marriage is null and void under section 11,any child of such marriage who would have been legitimate if themarriage had been valid, shall be legitimate, whether such child isGborn before or after the commencement of the Marriage Laws(Amendment) Act, 1976 (68 of 1976), and whether or not a decreeof nullity is granted in respect of that marriage under this Act andwhether or not the marriage is held to be void otherwise than on apetition under this Act.

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(2) Where a decree of nullity is granted in respect of a voidablemarriage under section 12, any child begotten or conceived beforethe decree is made, who would have been the legitimate child ofthe parties to the marriage if at the date of the decree it had beendissolved instead of being annulled, shall be deemed to be theirlegitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shallbe construed as conferring upon any child of a marriage which isnull and void or which is annulled by a decree of nullity undersection 12, any rights in or to the property of any person, otherthan the parents, in any case where, but for the passing of thisAct, such child would have been incapable of possessing oracquiring any such rights by reason of his not being the legitimatechild of his parents.”

13. In sub-section (1) of Section 16, the legislature has stipulatedthat a child born from a marriage which is null and void under Section 11is legitimate, regardless of whether the birth has taken place before orafter the commencement of Amending Act 68 of 1976. Legitimacy of achild born from a marriage which is null and void, is a matter of publicpolicy so as to protect a child born from such a marriage from sufferingthe consequences of illegitimacy. Hence, though the marriage may benull and void, a child who is born from the marriage is nonetheless treatedas legitimate by sub-section (1) of Section 16. One of the grounds onwhich a marriage is null and void under Section 11 read with clause (i) ofSection 5 is that the marriage has been contracted when one of theparties had a spouse living at the time of marriage. A second marriagecontracted by a Hindu during the subsistence of the first marriage is,therefore, null and void. However, the legislature has stepped in byenacting Section 16(1) to protect the legitimacy of a child born fromsuch a marriage. Sub-section (3) of Section 16, however, stipulates thatsuch a child who is born from a marriage which is null and void, willhave a right in the property only of the parents and none other than theparents.

14. The issue essentially is whether it is open to an employer, whois amenable to Part III of the Constitution to deny the benefit ofcompassionate 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

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Aa condition which is inconsistent with Article 14 of the Constitution. Thepurpose of compassionate appointment is to prevent destitution andpenury in the family of a deceased employee. The effect of the circularis that irrespective of the destitution which a child born from a secondmarriage of a deceased employee may face, compassionate appointmentis to be refused unless the second marriage was contracted with theBpermission of the administration. Once Section 16 of the Hindu MarriageAct, 1955 regards a child born from a marriage entered into while theearlier marriage is subsisting to be legitimate, it would not be open to theState, consistent with Article 14 to exclude such a child from seeking thebenefit of compassionate appointment. Such a condition of exclusion isCarbitrary and ultra vires.

15. Even if the narrow classification test is adopted, the circularof the Railway Board creates two categories between one class oflegitimate children. Though the law has regarded a child born from asecond marriage as legitimate, a child born from the first marriage of aDdeceased employee is alone made entitled to the benefit of compassionateappointment. The salutary purpose underlying the grant of compassionateappointment, which is to prevent destitution and penury in the family ofa deceased employee requires that any stipulation or condition which isimposed must have or bear a reasonable nexus to the object which issought to be achieved. The learned Additional Solicitor General has urgedEthat it is open to the State, as part of its policy of discouraging bigamy torestrict the benefit of compassionate appointment, only to the spouseand children of the first marriage and to deny it to the spouse of asubsequent marriage and the children. We are here concerned with theexclusion of children born from a second marriage. By excluding a classFof beneficiaries who have been deemed legitimate by the operation oflaw, the condition imposed is disproportionate to the object sought to beachieved. Having regard to the purpose and object of a scheme ofcompassionate appointment, once the law has treated such children aslegitimate, it would be impermissible to exclude them from beingconsidered for compassionate appointment. Children do not choose theirGparents. To deny compassionate appointment though the law treats achild of a void marriage as legitimate is deeply offensive to their dignityand is offensive to the constitutional guarantee against discrimination.

16. The learned Additional Solicitor General submitted that thedecision of this Court in Rameshwari Devi (supra) arose in the contextHof the grant of family pension to the minor children born from the second marriage of a deceased employee. That is correct. This Court, in thatcontext, observed that Section 16 of the Hindu Marriage Act, 1955 rendersthe children of a void marriage to be legitimate while upholding theentitlement to family pension. The learned Additional Solicitor Generalsubmitted that pension is a matter of right which accrues by virtue of thelong years of service which is rendered by the employee, entitling theemployee and after his death, their family to pension in accordance withthe rules. Even if we do accept that submission, the principle which hasbeen laid down by this Court on the basis of Section 16 of the HinduMarriage Act, 1955 must find application in the present case as well.The exclusion of one class of legitimate children from seekingcompassionate appointment merely on the ground that the mother of theapplicant was a plural wife of the deceased employee would fail to meetthe test of a reasonable nexus with the object sought to be achieved. Itwould be offensive to and defeat the whole object of ensuring the dignityof the family of a deceased employee who has died in harness. It bringsabout unconstitutional discrimination between one class of legitimatebeneficiaries – legitimate children.

17. We may note at this stage, that a Division Bench of the CalcuttaHigh Court in Namita Goldar (supra) quashed the circular of the RailwayBoard dated 2 January 1992 to the extent that it prevented the childrenof the second wife from being considered for appointment oncompassionate grounds. Subsequently, another Division Bench of theHigh Court in its decision in Eastern Coalfields Ltd. v Dilip Singh[6]took a contrary view, without noticing the earlier decision. We may advertto the subsequent decision in Eastern Coalfields Ltd. (supra) for thereason that it proceeds on a construction of Section 16 which, in ourview, is inconsistent with the language of that provision. The DivisionBench held thus:

“Section 16(1) of the aforesaid Act creates a legal fictionwhereby a child born out of void marriage shall be held to belegitimate. Section 16(3) of the said act restricts such legalpresumption to the rights of such a child only to the property of hisparents and none else.

It is, therefore, clear that Section 16 of Hindu MarriagesAct, 1955 presumes a child born out of a void marriage as legitimateonly for the purpose of entitling him to claim rights in or to theproperty of his parents but not to any other thing.

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It is settled law that public post is not a heritable property.In State Bank of India v. Jaspal Kaur reported in (2007) 9 SCC571 the Apex Court held that it is clear that public post is notheritable, therefore, the right to compassionate appointment is nota heritable property.

In fact it is an exception to the rule of regular appointmentby open competition. Such exception to the rule of regularappointment is therefore a privilege extended by the employer interms of the scheme for compassionate appointment itself. It isnot a property of the deceased nor is it a heritable right.

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In State of Chhattisgarh v. Dhirjo Kumar Sengar reportedin (2009) 13 SCC 600 the Apex Court held as follows:

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“Appointment on compassionate ground is an exception tothe constitutional scheme of equality as adumbrated under Articles14 and 16 of the Constitution of India.”

For the aforesaid reasons, we are of the opinion that theprovisions of Section 16 of the Hindu Marriage Act, 1955 cannotcome to the aid of the petitioner. Legal presumption of legitimacyin such provision is restricted only to the property of the deceasedand not to other things. Hence, such provision of law cannot bepressed into service to expand the privilege of compassionateappointment extended by an employee under the scheme as thesame can by no stretch of imagination be held to be the propertyof the deceased employee.” (Emphasis supplied)

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18. The High Court has proceeded on the basis that the recognitionof legitimacy in Section 16 is restricted only to the property of theFdeceased and for no other purpose. The High Court has missed theprinciple that Section 16(1) treats a child born from a marriage which isnull and void as legitimate. Section 16(3), however, restricts the right ofthe child in respect of property only to the property of the parents. Section16(3), however, does not in any manner affect the principle declared insub-section (1) of Section 16 in regard to the legitimacy of the child. OurGattention has also been drawn to a judgment of a learned Single Judge ofthe Madras High Court in M Muthuraj v Deputy General of Police,Tamil Nadu[7] adopting the same position. In the view which we havetaken, we have arrived at the conclusion that the exclusion of a childborn from a second marriage from seeking compassionate appointmentH7(2016) 5 CTC 50

under the terms of the circular of the Railway Board is ultra vires. ADivision Bench of the Madras High Court followed the view of theCalcutta High Court in Namita Goldar in Union of India v MKarumbayee.[8] A Special leave petition filed against the judgment ofthe Division Bench was dismissed by this Court on 18 September 2017[9].

19. We may, however, clarify that the issue as to whether in aparticular case, the applicant meets all the stipulations of the schemeincluding financial need and other requirements are matters which willbe decided on the facts of each individual case.

20. Finally, it would be necessary to dwell on the submission whichwas urged on behalf of the respondent that once the circular dated 2January 1992 was struck down by the Division Bench of the CalcuttaHigh Court in Namita Goldar (supra) and which was accepted andhas been implemented, it was not thereafter open to the railway authoritiesto rely upon the same circular which has all India force and effect.There is merit in the submission. Hence, we find it improper on the partof the Railway Board to issue a fresh circular on 3 April 2013, reiteratingthe terms of the earlier circular dated 2 January, 1992 even after thedecision in Namita Goldar (supra), which attained finality.

21. For the above reasons, we do not find any merit in the appeal.The authorities shall take a decision in terms of this judgment on theapplication for compassionate appointment in three months from today.The appeal stands dismissed. No costs.

CIVIL APPEAL No.12016 OF 2018

(Arising out of SLP(C) No.34830/2016)

22. Leave granted.

23. In view of the judgment delivered today in companion CivilAppeal No.12015 of 2018 and since the second marriage was in anyevent permissible under Muslim Personal Law, there is no merit in theappeal. The authorities shall be entitled to scrutinize whether theapplication for compassionate appointment fulfills all other requirements,in accordance with law. The process of consideration of the applicationshall be completed within a period of three months from today.

24. The appeal is accordingly disposed of. No costs.

Nidhi Jain

82017 Lab. IC (NOC 237) 69

9SLP(C) arising out of Diary No.27352 of 2017

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