MUKESH KUMAR & ANR versus THE UNION OF INDIA & ORS. on 24 February 2022

1. Leave granted.

2. The short issue arising for consideration, in this case, is whetherthe condition imposed by the Railway Board circular that compassionateappointment cannot be granted to children born from the second wife ofDa deceased employee is legally sustainable. Having considered the matter,we have agreed with the counsel for the appellant that the issue is coveredby the judgment of this Court in Union of India v. V.R. Tripathi.[1] Wehave allowed the appeal on this ground. We have also held that such adenial is discriminatory, being only on the ground of descent underEArticle 16(2) of the Constitution of India. We shall first refer to the factsof the case before applying the law for disposal of this appeal.

Facts:

3. The facts, in brief, are that Jagdish Harijan was an employeeof the Indian Railways appointed on 16.11.1977. In his lifetime, ShriFJagdish Harijan had two wives, appellant No.2, Gayatri Devi, was hisfirst wife and Konika Devi, since deceased, was his second wife. Theappellant No.1 Mukesh Kumar is his son through his second wife. ShriJagdish Harijan died in service on 24.02.2014. Shortly after that, theappellant No.2 made a representation dated 17.05.2014 seeking theGappointment of her step-son/appellant No.1 under the scheme forappointments on compassionate grounds. The Respondent-Union rejectedthe representation on 24.06.2014 because appellant No.1, being thesecond wife’s son, is not entitled to such an appointment. Thedepartmental appeal came to be dismissed on 30.12.2015. The appellants H1 Union of India v. V.R. Tripathi, (2019) 14 SCC 646.

filed an original application before the Central Administrative Tribunal,Patna, which was dismissed on 19.07.2017. A writ petition was filedbefore the High Court of Patna questioning the correctness of the decisionof the Tribunal by relying on two decisions of the Madras High Court,which followed the Calcutta High Court decision in the case of NamitaGoldar and Anr. v. Union of India and Ors.(2010) 1 Cal. LJ 464underwhich the very same circular of the railways dated 02.01.1992 wasquashed. The Division Bench of the High Court, however, by theimpugned order, dismissed the writ petition.

Arguments of Counsel:

4. The learned Counsel for the Appellants, Shri Manish KumarSaran, submitted that the issue is covered by the decision of this Court inUnion of India v. V.R. Tripathi (supra) wherein, in the context of thisvery circular and policy of the railways, it held that a child of a secondwife of an employee could not be denied compassionate appointment onthat ground alone. He also relied on the judgment of the High Court ofCalcutta in Namita Goldar (supra), which has been approved by thisCourt in V.R. Tripathi.

5. The learned Counsel for the Respondents, Smt. Meera Patel,representing the Union submitted based on the statement in the counteraffidavit. The counter refers to Circular No. E(NG) II/2018/RC-1/5 dated21.03.2018 issued in supersession of Circular dated 02.01.1992, whichprovides that if a legally wedded surviving widow does not want herselfto be considered, she cannot nominate the illegitimate sons/daughters ofher husband for compassionate appointment. She further submitted thatthe judgment of this Court relied on by the appellants does not directappointment but merely provides for consideration of the application.Therefore, there cannot be a direction for appointment as prayed by theappellant.

Analysis:

Analysis:

6. It is true that the matter is no more res integra. This Court inV.R. Tripathiconsidered the very same policy and circular that arise forthe consideration in the present case. The judgment covers the issue, asis evident from the following passages:

“14. The real issue in the present case, however, is whetherthe condition which has been imposed by the circular of theRailway Board under which compassionate appointment A

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cannot be granted to the children born from a second marriageof a deceased employee (except where the marriage waspermitted by the administration taking into account personallaw, etc.) accords with basic notions of fairness and equaltreatment, so as to be consistent with Article 14 of theConstitution….

16. The issue essentially is whether it is open to an employer,who is amenable to Part III of the Constitution to deny thebenefit of compassionate appointment which is available toother legitimate children. Undoubtedly, while designing apolicy of compassionate appointment, the State can prescribethe terms on which it can be granted. However, it is not opento the State, while making the scheme or rules, to lay down acondition which is inconsistent with Article 14 of theConstitution. The purpose of compassionate appointment isto prevent destitution and penury in the family of a deceasedemployee. The effect of the circular is that irrespective of thedestitution which a child born from a second marriage of adeceased employee may face, compassionate appointment isto be refused unless the second marriage was contracted withthe permission of the administration. Once Section 16 of theHindu Marriage Act, 1955 regards a child born from amarriage entered into while the earlier marriage is subsistingto be legitimate, it would not be open to the State, consistentwith Article 14 to exclude such a child from seeking the benefitof compassionate appointment. Such a condition of exclusionis arbitrary and ultra vires.

17. 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 regardeda child born from a second marriage as legitimate, a childborn from the first marriage of a deceased employee is alonemade entitled to the benefit of compassionate appointment.The salutary purpose underlying the grant of compassionateappointment, which is to prevent destitution and penury inthe family of a deceased employee requires that any stipulationor condition which is imposed must have or bear a reasonablenexus to the object which is sought to be achieved. The learned MUKESH KUMAR & ANR v. THE UNION OF INDIA & ORS.[PAMIDIGHANTAM SRI NARASIMHA, J.]

Additional Solicitor General has urged that it is open to theState, as part of its policy of discouraging bigamy to restrictthe benefit of compassionate appointment, only to the spouseand children of the first marriage and to deny it to the spouseof a subsequent marriage and the children. We are hereconcerned with the exclusion of children born from a secondmarriage. By excluding a class of beneficiaries who have beendeemed legitimate by the operation of law, the conditionimposed is disproportionate to the object sought to beachieved. Having regard to the purpose and object of ascheme of compassionate appointment, once the law hastreated such children as legitimate, it would be impermissibleto exclude them from being considered for compassionateappointment. Children do not choose their parents. To denycompassionate appointment though the law treats a child ofa void marriage as legitimate is deeply offensive to theirdignity and is offensive to the constitutional guarantee againstdiscrimination.

18. …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 nexuswith the object sought to be achieved. It would be offensiveto and defeat the whole object of ensuring the dignity of thefamily of a deceased employee who has died in harness. Itbrings about unconstitutional discrimination between one”class of legitimate beneficiaries — legitimate children.

7. This Court held that the scheme and the rules of compassionateappointment cannot violate the mandate of Article 14 of the Constitution.Once Section 16 of the Hindu Marriage Act regards a child born from amarriage entered into while the earlier marriage is subsisting to belegitimate, it would violate Article 14 if the policy or rule excludes such achild from seeking the benefit of compassionate appointment. The circularcreates two categories between one class, and it has no nexus to theobjects sought to be achieved. Once the law has deemed them legitimate,it would be impermissible to exclude them from being considered underthe policy. Exclusion of one class of legitimate children would fail tomeet the test of nexus with the object, and it would defeat the purpose AB

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Aof ensuring the dignity of the family of the deceased employee. Thisjudgment has now been followed by a number of High Courts as well.[2]

8. Apart from the discrimination ensuing from treating equalsunequally, which is writ large as demonstrated in the judgment of thisCourt referred to above, there is also discrimination on the ground ofBdescent, which is expressly prohibited under Article 16(2). In V.Sivamurthy v. State of A.P.[3], this Court observed that appointmentsmade only on the basis of descent is impermissible. However,compassionate appointments are a well-recognized exception to thegeneral rule if they are carved out in the interest of justice to meet publicpolicy considerations.[4 ]It lends justification only that far and no further.C

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 HighCourt of Bombay); Union of India v Rohit Chand 2020 SCC OnLine Del 157. (Decidedon 24.01.2020 by The High Court of Delhi)

3 V. Sivamurthy v. State of A.P. and Ors., (2008) 13 SCC 730:D“18. The principles relating to compassionate appointments may be summarisedthus; (a) Compassionate appointment based only on descent is impermissible.Appointments in public service should be made strictly on the basis of open invitationof applications and comparative merit, having regard to Articles 14 and 16 of theConstitution of India. Though no other mode of appointment is permissible,Eappointments on compassionate grounds are a well-recognised exception to thesaid 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 thegeneral rule are:

(i) appointment on compassionate grounds to meet the sudden crisis occurringin 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 onFaccount of medical invalidation of the breadwinner.Another contingency, though less recognised, is where landholders lose theirentire land for a public project, the scheme provides for compassionateappointment to members of the families of project-affected persons. (Particularlywhere the law under which the acquisition is made does not provide for marketvalue and solatium, as compensation).

(c) Compassionate appointment can neither be claimed, nor be granted, unless theGrules governing the service permit such appointments. Such appointments shall bestrictly in accordance with the scheme governing such appointments and againstexisting vacancies.

(d) Compassionate appointments are permissible only in the case of a dependantmember of the family of the employee concerned, that is, spouse, son or daughterand not other relatives. Such appointments should be only to posts in the lowercategory, that is, Classes III and IV posts and the crises cannot be permitted to beHconverted into a boon by seeking employment in Class I or II posts.”

9. While compassionate appointment is an exception to theconstitutional guarantee under Article 16, a policy for compassionateappointment must be consistent with the mandate of Articles 14 and 16.That is to say, a policy for compassionate appointment, which has theforce of law, must not discriminate on any of the grounds mentioned inArticle 16(2), including that of descent. In this regard, ‘descent’ mustbe understood to encompass the familial origins of a person.[5] Familialorigins include the validity of the marriage of the parents of a claimant ofcompassionate appointment and the claimant’s legitimacy as their child.The policy cannot discriminate against a person only on the ground ofdescent by classifying children of the deceased employee as legitimateand illegitimate and recognizing only the right of legitimate descendant.Apart from the fact that strict scrutiny would reveal that the classificationis suspect, as demonstrated by this Court in V.R. Tripathi, it will instantlyfall foul of the constitutional prohibition of discrimination on the groundof descent. Such a policy is violative of Article 16(2).

10. We note with approval the decision of the Delhi High Court inUnion of India v. Pankaj Kumar Sharma,[6] to which one of us (JusticeS. Ravindra Bhat) was a party, which held that descent cannot be aground for denying employment under the scheme of compassionateappointments. Speaking through Sanghi J., the Court held:

“22. The Court is of opinion that - apart from being textuallysound - understanding ‘descent’ in terms of prohibitingdiscrimination against a person on the basis of legitimacy, oron the basis of his mother’s status as a first or second wife,fits within the principles underlying Article 16(2). Not only isone’s descent, in this sense, entirely beyond one’s control (andtherefore, ought not to become a ground of State-sanctioneddisadvantage), but it is also an established fact that childrenof ‘second’ wives, whether counted as illegitimate or legitimate,have often suffered severe social disadvantage. Another 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 ofHaryana v. Ankur Gupta (2003) 7 SCC 704 (at para 6); Yogender Pal Singh v. Union ofIndia (1987) 1 SCC 631 (at para 17).

5 See, Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors. (1961) 2 SCR931.

6 Union of India v. Pankaj Kumar Sharma MANU/DE/3959/2014, WP(C) No.9008/2014 dt 19.04.2014

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Asignificant observation here is that at the entry level -“legitimacy” is and cannot be a ground for denial of publicemployment. For these reasons, this Court is of the opinionthat the Petitioner’s regulation violates Article 16(2).”

11. Given the above, we hold that the issue arising for consideration,Bin this case, is covered by the judgment of this Court in Union of Indiaand Ors. v. V.K. Tripathi and consequently the judgment and orderdated 18.01.2018 of the High Court of Judicature at Patna passed inCWJC No. 18153 of 2017 is set aside. As we have held that appellantNo.1, Shri Mukesh* Kumar, cannot be denied consideration under thescheme of compassionate appointments only because he is the son ofCthe second wife, there shall be a direction to consider his case as per theextant policy. The Authorities shall be entitled to scrutinize whether theapplication for compassionate appointment fulfils all other requirementsin accordance with the law. The process of consideration of theapplication shall be completed within a period of three months from today.

D12.The appeal is accordingly allowed. Parties shall bear their owncosts.

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Devika Gujral

Appeal allowed.

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