A Policy for compassionate appointment must be consistent with the mandate of Article 14 and 16: SC

Cause Title: Mukesh Kumar and Another v. The Union of India and Others

Case Number: Civil Appeal 1620/2022 Arising out of SLP(C) No. 18571/2018

Quorum: Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Pamidighantam Sri Narasimha

Judgment Date: 24/02/2022

Counsel for Appellants: Shri Manish Kumar Saran

Counsel for the Respondents: Smt. Meera Patel

Author: Pragash B, Advocate, Madurai Bench of Madras High Court

To view/Download Judgment: Mukesh Kumar and Another v. The Union of India and Others

Issue under Scrutiny

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?

Background of the Case

Jagdish Harijan was an employee of the Indian Railways appointed on 16.11.1977. He had two wives namely one Gayatri Devi (2nd Appellant), the first wife and Konika Devi, the second wife. The first appellant is the son of the said Jagdish Harijan and his second wife. Jagdish Harijan died on 24.02.2014, then on 17.05.2014, the second appellant makes representation seeking appointment of her step-son/ first appellant on compassionate grounds.

The Respondent-Union rejected the representation on 24.06.2014 as the first appellant is the second wife’s son who is not entitled to such an appointment based on Railways Circular dated 02.01.1992. Circular No. E(NG) II/2018/RC-1/5 dated 21.03.2018 issued in supersession of Circular dated 02.01.1992, says 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. 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 but the Division Bench of the High Court however, by the impugned order dismissed the writ petition. In consequence, a Special Leave Petition was filed and the same is brought before the Honourable Supreme Court of India.

Findings of the Court

The Honourable Supreme Court held that the matter is no more res integra as the Court in V.R. Tripathi case (Paras 14, 16, 17 and 18 of the referred case) has already considered the very same policy and circular that arise for the consideration in the present case. (Para 6)The Apex Court in the referred case 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 benefit of compassionate appointment. (Para 7)

The Honourable Court observed that

“….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.”

The Apex Court stated that the appointments made only on the basis of descent is impermissible. However, compassionate appointments are a well-recognised exception to the general rule if they are carved out in the interest of justice to meet public policy considerations. (Para 8) The 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. The policy must not discriminate on grounds mentioned in Article 16(2) including descent which encompasses the familial origins of a person. Familial origins include the validity of the marriage between the parents of the claimants and the claimant’s legitimacy as their child. The policy cannot discriminate on descent by classifying children of deceased employee as legitimate and illegitimate and recognizing only the rights of the legitimate children. (Para 9) The Railway Policy discussed in this case is held to be violative of Article 16(2).

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. (Para 11)

The appeal is accordingly allowed. Parties shall bear their own costs. (Para 12)

Cases Referred

1. Union of India v. V. R. Tripathi, (2019) 14 SCC 646.

2. Namita Goldar and Another v. Union of India and Others, (2010) 1 Cal. LJ 464.

3. K. Santhosha v. Karnataka Power Transmission Corp Limited, 2022 (!) Kant LJ 154.

4. Yuvraj DajeeKhadake v. Union of India, 2019 SCC OnLine Bom 299.

5. Union of India v. Rohit Chand, 2020 SCC OnLine Del 157.

6. V. Sivamurthy v. State of A.P and Others, (2008) 13 SCC 730.

7. Director General of Posts v. K. Chandrashekar Rao, (2013) 3 SCC 310.

8. State of Haryana v. Ankur Gupta, (2003) 7 SCC 704.

9. Yogender Pal Singh v. Union of India, (1987) 1 SCC 631.

10. Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Others, (1961) 2 SCR 931.

11. Union of India v. Pankaj Kumar Sharma, MANU/DE/3959/2014.