MUKESH KUMAR VS THE UNION OF INDIA

MUKESH KUMAR VS THE UNION OF INDIA

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF /2022

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

MUKESH KUMAR & ANR …. APPELLANT(S)

VERSUS

THE UNION OF INDIA & ORS. …RESPONDENT(S)

J U D G M E N T

PAMIDIGHANTAM SRI NARASIMHA, J.

Leave granted.

2. The short issue arising for consideration, in this case, is 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. Having considered the matter, we

have agreed with the counsel for the appellant that the issue is covered by the

judgment of this Court in Union of India v. V.R. Tripathi.

1

 We have allowed

the appeal on this ground. We have also held that such a denial is

discriminatory, being only on the ground of descent under Article 16(2) of the

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

Page 2 of 9

Constitution of India. We shall first refer to the facts of the case before applying

the law for disposal of this appeal.

Facts:

3. The facts, in brief, are that 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 by relying on

two decisions of the Madras High Court, which followed the Calcutta High

Court decision in the case of Namita Goldar and Anr. v. Union of India and

Ors. (2010) 1 Cal. LJ 464 under which the very same circular of the railways

dated 02.01.1992 was quashed. The Division Bench of the High Court,

however, by the impugned order, dismissed the writ petition.

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Arguments of Counsel:

4. The learned Counsel for the Appellants, Shri Manish Kumar Saran,

submitted that the issue is covered by the decision of this Court in Union of

India v. V.R. Tripathi (supra) wherein, in the context of this very circular and

policy of the railways, it held that a child of a second wife of an employee could

not be denied compassionate appointment on that ground alone. He also relied

on the judgment of the High Court of Calcutta in Namita Goldar (supra), which

has been approved by this Court in V.R. Tripathi.

5. The learned Counsel for the Respondents, Smt. Meera Patel,

representing the Union submitted based on the statement in the counter

affidavit. The counter refers to Circular No. E(NG) II/2018/RC-1/5 dated

21.03.2018 issued in supersession of Circular dated 02.01.1992, which

provides 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. She further submitted that the judgment of this

Court relied on by the appellants does not direct appointment but merely

provides for consideration of the application. Therefore, there cannot be a

direction for appointment as prayed by the appellant.

Analysis:

6. It is true that the matter is no more res integra. This Court in V.R.

Tripathi considered the very same policy and circular that arise for the

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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

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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.”

7. This Court 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

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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. This judgment has now been followed by a number of High Courts

as well.2

8. 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.

3

, this Court

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 High Court of

Bombay); Union of India v Rohit Chand 2020 SCC OnLine Del 157. (Decided on

24.01.2020 by The High Court of Delhi)

3 V. Sivamurthy v. State of A.P. and Ors., (2008) 13 SCC 730:

“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

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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.

4

It lends justification only that far and no further.

9. 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.”

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 of Haryana v.

Ankur Gupta (2003) 7 SCC 704 (at para 6); Yogender Pal Singh v. Union of India (1987) 1

SCC 631 (at para 17).

5 See, Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors. (1961) 2 SCR 931.

Page 8 of 9

of descent by classifying children of the deceased employee as legitimate and

illegitimate and recognizing only the right of legitimate descendant. Apart from

the fact that strict scrutiny would reveal that the classification is suspect, as

demonstrated by this Court in V.R. Tripathi, it will instantly fall foul of the

constitutional prohibition of discrimination on the ground of descent. Such a

policy is violative of Article 16(2).

10. We note with approval the decision of the Delhi High Court in Union

of India v. Pankaj Kumar Sharma,

6

to which one of us (Justice S. Ravindra

Bhat) was a party, which held that descent cannot be a ground for denying

employment under the scheme of compassionate appointments. Speaking

through Sanghi J., the Court held:

“22. The Court is of opinion that - apart from being

textually sound - understanding 'descent' in terms of

prohibiting discrimination against a person on the basis of

legitimacy, or on the basis of his mother's status as a first

or second wife, fits within the principles underlying Article

16(2). Not only is one's descent, in this sense, entirely

beyond one's control (and therefore, ought not to become

a ground of State-sanctioned disadvantage), but it is also

an established fact that children of 'second' wives, whether

counted as illegitimate or legitimate, have often suffered

severe social disadvantage. Another significant

observation here is that at the entry level - "legitimacy" is

and cannot be a ground for denial of public employment.

For these reasons, this Court is of the opinion that the

Petitioner's regulation violates Article 16(2).”

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

dt 19.04.2014

Page 9 of 9

11. 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.

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

………………………………J.

[UDAY UMESH LALIT]

……………………………J.

[S. RAVINDRA BHAT]

……………………………….J.

[PAMIDIGHANTAM SRI NARASIMHA]

NEW DELHI;

FEBRUARY 24, 2022

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