Service law : Appointment – Compassionate appointment – Son born to railway employee from second marriage contracted during the subsistence of his first marriage – Benefit of compassionate appointment to the son on the death of his father – Claim for – Rejected by the Railway Authorities, however, allowed by the tribunal and the High Court – Held: There is no right as such to compassionate appointment but only an entitlement, where a scheme or rules envisaging it exist, to be considered in accordance with the provisions – Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated children born out of second marriage during the subsistence of the first marriage 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 is deeply offensive to their dignity and to the constitutional guarantee against discrimination – Thus, the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway 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 of his first marriage and a son was born to him from the second marriage. The respondent-son applied for compassionate appointment on the death of his father. The Railway authorities rejected the application in view of the circular of the Railway Board whereby compassionate appointment could not 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). However, the tribunal and the High Court held in favour of the respondent. Hence the present appeal.
Disposing of the matters, the Court
HELD: 1.1 The policy of compassionate appointment is premised on the death of an employee while in harness. The death of an employee is liable to render the family in a position of financial hardship and need. Compassionate appointment is intended to alleviate the hardship that the family of a deceased employee may face upon premature death while in service. Compassionate appointment, in other words, is not founded merely on parentage or descent, for public employment must be consistent with equality of opportunity which Article 16 of the Constitution guarantees. Hence, before a claim for compassionate appointment is asserted by the family of a deceased employee or is granted by the State, the employer must have rules or a scheme which envisage such appointment. It is in that sense that it is a trite principle of law that there is no right to compassionate appointment. Even where there is a scheme of compassionate appointment, an application for engagement can only be considered in accordance with and subject to fulfilling the conditions of the rules or the scheme. There can be no doubt about the principle that there is no right as such to compassionate appointment but only an entitlement, where a scheme or rules envisaging it exist, to be considered in accordance with the provisions. [Para 11][289-G-H; 290-A-D]
1.2 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. [Para 14][291-H; 292-A-C]
1.3 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. It was submitted 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. The concern is 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. [Para 15][292-D-G]
1.3 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. Thus, exclusion of a child born from a second marriage from seeking compassionate appointment under 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 circular dated 02.01.1992 was struck down by the Division Bench of the Calcutta High Court in *Namita Goldar case and which was accepted and has been implemented, it was not thereafter open to the railway authorities to rely upon the same circular which has all India force and effect. There is merit in the submission. Hence, it is improper on the part of the Railway Board to issue a fresh circular on 3 April 2013, reiterating the terms of the earlier circular even after the decision in *Namita Goldar case which attained finality. [Para 20][295-C-D]
2. As regards, C.A.No. 12015 of 2018, since the second marriage was in any event permissible under Muslim Personal Law, 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) v. Pushpendra Kumar (1998) 5 SCC 192 : [1998] 3 SCR 432 ; State Bank of India v. Raj Kumar (2010) 11 SCC 661 ; V Sivamurthy v. State of Andhra Pradesh (2008) 13 SCC 730 : [2008] 11 SCR 1201 ; Eastern Coalfields Ltd. v. Dilip Singh (2013) 3 Cal.LT 379 ; M Muthuraj v Deputy General of Police, Tamil Nadu (2016) 5 CTC 50 ; Union of India v. M Karumbayee 2017 Lab. IC (NOC 237) 69 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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